A conflict for the protection of intellectual property right arose recently in China when a Chinese based Infrastructure Company, Wanda Company diversified its business and entered in to a theme based park. It is interesting to note how the conflict arose in this case. The facts are as follows: on the inauguration of the theme park of Wanda Group on 28th May 2016, few people who were alleged to be workers of the park, were seen clad in Captain America, Snow White and Star Wars Storm troopers costume, the copyright of which are currently held by Disney. Apart from the comic characters, vending machines were also spotted filled with Kung Fu Panda look-alikes . It is pertinent to note here that Kung Fu Panda is not a Disney creation. On the inauguration of the park, Wanda group Chairman addressed the group’s setting up of 15 – 20 theme based park as a pack of wolves and took a jab at Disney’s upcoming theme based park at Shanghai comparing it to a lone tiger. He concluded saying that the tiger will never be a match to the pack of wolves, indirectly threatening Disney of its downfall and collapse in China. This statement was not taken in good faith by the Disney who accused the Wanda Group of using their comic characters in an unauthorized manner.
Disney, the major player in the entertainment industry across the world has established itself as the dominant player in the media and entertainment sector over a period of time. Disney’s theme based parks deserves a special mention when it comes to popularity and fan following. At the wake of this incident, the Disney has promised to take deterrent action so as to prevent misusing their brand name in enlarging Wanda’s business opportunities.
Now coming to the legal point of view, the question that surfaces is whether Wanda’s act can be termed as copyright infringement and if so, how can Disney claim protection against it?
A comic is protected in two ways – one by the copyright protection and another by way of trademark protection. The former protects the characters, story line and graphic elements related to the creation, but it does not protect the ideas of fight between good and evil (as ideas are not copyrighted). Thus manifestation of ideas in the form of drawing of characters and illustrations are protected under copyright laws. Trademark law, on the other hand, protects the name and resemblances of the superheroes to any other characters. The trademark protection in fact is instrumental in protecting the merchandising ability of the owner of various superhero characters and has been a source of sizeable revenue for the copyright and trademark holders. Thus, we can notice that at the inauguration of Wanda’s theme park, showcasing of Disney owned superhero characters is violation of the intellectual property rights of Disney. More importantly, the characters which were showcased at the theme park did not have any licensing contract with Disney, implying that it is nothing but an illegal act aimed at capitalizing Disney’s popularity in getting more footfalls in the park and thus increasing Wanda’s theme park business.
Now the question is what is the legal remedy for Disney in this case? The United States of America and People’s Republic of China both have acceded to the Berne Convention for the Protection of Literary and Artistic Works which has a mention of national treatment principle which extends similar protection of a copyrighted work to all foreign works as it extends to works produced by its own national. Under this principle, Disney’s work i.e. the comic characters are protected equally in China as it is protected in USA. However, if Disney intends to file an infringement suit, the same cannot be filed in USA, but under the jurisdiction where the alleged infringement has been reported (which in this case is China) and the case will be filed under the law of the jurisdiction where the infringement happened i.e. Chinese Copyright Law.
But if the situation was that, the infringement took place in USA by the Wanda group under the similar facts and circumstances, then Disney could have easily sued Wanda in the American Courts as in this case infringement would have happened in USA and therefore the suit could have been filed under United States Copyright law.
Authored by Rounak Biswas
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