Intellectual Property Law Protections for Comics, Cartoons, Anime, and Manga Works
By Justin M. Jacobson, Esq.
Ranging from the characters from Marvel, Disney, Pokémon, Dragon Ball Z, South Park, Mario, SpongeBob SquarePants, Sailor Moon, and many other creative properties, today’s popular entertainment products feature a plethora of unique intellectual property (IP), including rights that exist in cartoons, comics, anime, and manga stories. As a result, the need for proper legal protection for these creative assets is crucial, especially as more individuals and businesses incorporate their works into a variety of avenues including physical and digital merchandise, in video and computer games, television shows and motion pictures, as well as in written and digital literary works. This article explores trademarks and copyrights, which are two paramount intellectual property legal considerations that all creators, animators, and illustrators should be aware of, including those parties involved in the design and monetization of any written and digital animations, characters, or illustrations, such as the creators of cartoon, anime, manga, or other comic book stories.
Copyright Protection for Cartoons, Comics, Anime, and Manga Works
A copyright is a common intellectual property protection available to the owner of a creative work. For example, a copyright might exist in a specific created character (i.e., Bart Simpson or Mickey Mouse), in any composed story lines, such as any written text accompanying a work, as well as in any derivative works based on an original cartoon, anime, manga, or other comic creation. For instance, a derivative work could be a film, a television show, or a video game based on or containing a protected character such as the Super Smash Brothers video game titles featuring Nintendo characters such as Mario and Luigi or the Attack on Titan television series based on the existing anime story. As a result, a creator can obtain copyright protection in any digital or physical creation, such as a written book as well as in a physical or digital comic, manga, or anime work. Copyright protection could also exist in a digitally created asset, such as an NFT, in any 3D animation or image, as well as in any 2D cartoon, anime, or manga created piece, whether the work is available digitally or as a printed copy. Consequently, the creator of a unique character could either individually or jointly protect each individual character design, as well as apply for protection in their entire finished work. This means that the work’s creator could individually copyright each specific character design, the fully written comic or digital manuscript as well as any created audio-visual work including protection for any of the sounds and animations contained in the final piece. Furthermore, the copyright owner could potentially protect any unique merchandise, products, or other apparel designs they create which incorporates their protected characters.
Since many of history’s greatest cartoons, comics, manga, and animated stories have come from one or more individuals working together to create a final story, it is paramount that any party involved in and who acquires rights in a creative work’s development is handled properly. Generally, copyright law provides every author with an equal ownership share in a created work, referred to as a “joint work.” This is true even if one of the creators contributed a greater quantity toward the completed work than the others. As a result, each co-author owns an “undivided” interest in the entire creative work, which means that each owner has the right to grant non-exclusive licenses to a third party without any other owner’s consent so long as the licensing party accounts to and pays the other co-owner(s) their share of the profits. (Justin M. Jacobson, Esq., The Essential Guide to the Business & Law of Esports & Professional Video Gaming, 57 (CRC Press 2021)) In contrast, an exclusive license of a joint-work requires prior approval from all of the owners of the protected work. Therefore, a creator must be aware that another person can potentially impact the right to license and monetize a copyrighted work. As explained, one creative’s ownership in a work may affect another party’s ability to exclusively sell and license the work to third-party businesses. This is important to be aware of as many licensing arrangements entered into with major entertainment companies, such as motion picture studios, television production companies and video game developers, are exclusive arrangements to ensure that the licensing entity can fully monetize the licensed IP. In these situations, if the creatives have not agreed to the contrary, then all of the owners of the joint-work must approve and authorize the issuance of the exclusive license to the third-party such as a video game publisher or a television studio. However, to alter this scenario, the parties can contractually agree to any another arrangement that they all agree on in a signed writing by all of the owners. Therefore, when several individuals are involved in a creative piece, it is prudent that the interested parties first decide in writing each owners’ approval rights for third-party licenses as well as determining each creators’ ownership interest and profit share in the finished work. This fact is especially important in situations where the parties do not intend to be “50/50” or “equal” partners in a creative project’s development, approval, and/or commercialization. In particular, the lack of a signed document to the contrary would cause all the contributors to be involved in the life of the creative project including entitling each owner to a share in the project’s total profits as well as a right to approve any third-party usage of the property (unless the other co-owner(s) buy the other owner(s) out later in a different transaction).
Copyright of Fan “Fiction” and “Fan Artwork – Is Fan “Fiction” Legal?
Another related and complex copyright issue is the distribution and creation of “fan fiction” and other fan “creations” based on existing protected creative works owned by others, including both printed and digital fan artwork. Under copyright law, any created work based on a protected one is considered “derivative” work and U.S. copyright law provides a work’s owner with the exclusive rights to determine who and how their creative assets can be utilized and reproduced. (17 U.S.C. § 106) This includes providing the copyright owner with the exclusive right to the distribution and management of any “derivative” works based on an existing protected one. (17 U.S.C. § 106) Since these types of fan creations may be considered a “derivative” work of a protected one, a party who creates and circulates fan “fiction” or other fan created artwork based on an existing protected work could potentially be engaging in copyright infringement of the original work. This is because it is presumed that the fan “fiction” creator did not receive prior written permission from the original work’s rights holder to create and distribute the new derivative work. While many non-commercial uses may not be actively policed and enforced by its rights holders due to a variety of reasons, it is important to be aware that if the party is selling or making any commercial or “for profit” usages of a derivative work, especially in cases of large or “mass” public distribution, these individuals would be generally be required to and should obtain a formal license or other written permission from the original work’s owner prior to engaging in the commercial sale or distribution of a product based on another creator’s protected assets. In fact, the lack of such authorization could cause the entrepreneurial fan to be in a very compromising situation and potentially be liable for copyright infringement. Since every situation is different, it is crucial that a party is aware of their legal obligations and potential exposure prior to engaging in the activity. Once an individual has committed the act, the situation has changed, and the infringing party might be liable for the other party’s suffered damage due to their unauthorized actions. Interestingly, some entertainment properties have taken a different stance and are actually encouraging the creation of fan work, including Star Trek, who is actively promoting the creation of “non-commercial” “fan films” by “amateur fan filmmakers to showcase their passion for Star Trek.”
Trademark Protection for Cartoon, Comic, Anime, and Manga Works
In addition to copyright protection, another relevant existing intellectual property protection is a trademark. Trademark law protects a word, logo, slogan, color, sound, catchphrase, product design, hashtag, or any combination of these used to differentiate the goods or services that one party provides from those of another. As a result, most cartoon, comic, manga, and anime creators can utilize trademark law to protect a variety of their intellectual property.
While a creative entrepreneur has many different trademarks to choose from, some common ones include the filing for trademark protection in their project’s name. However, in these instances, it is important to be aware that the title of a cartoon, comic, animation, or other published work is not entitled to trademark protection unless the name is intended to be used for a series of similar works, such as for a comic, television, cartoon, or literary series. (TMEP § 1202.08) Additionally, a party intending to utilize a creative property’s name in a series of creative works could also apply for protection in their project’s specific logo design. Furthermore, creative individuals and companies might also obtain a registration in any created character names, especially those names that are used on ancillary merchandise and for other media and entertainment properties based on the original work. For example, the Pokémon character “Pikachu” is a registered trademark in several classes for many products, including for “clothing” (U.S. Reg. No. 2,374,006) and for “video games.” (U.S. Reg. No. 2,483,758)
In addition, there are a variety of different International Classes of goods and services where the owner of an animated or illustrated work can apply for trademark protection in. Some of these classes include Class 005 for “vitamins and minerals” or Class 009 for digital items such as “non-fungible tokens (NFTs),” “downloadable computer software in the nature of non-fungible tokens,” “non-fungible tokens used with blockchain technology, namely, downloadable image and multimedia files containing artwork,” and “downloadable digital art” as well as for “computer games,” “music downloads,” DVDs, video cassettes, and other “prerecorded audio and video tapes.” Additionally, other relevant classes might be for items from Class 014 such as “jewelry” and “watches” or those in Class 016 which includes a variety of goods, such as “photograph albums, pens, binders, stickers, notebooks, memo pads, posters, color books, comic book, paper goods, diaries, greeting cards, and party decorations.”
Some other potential International Classes that might be utilized by a creator include Class 018 for items such as tote bags, handbags, purses or Class 025 for a variety of clothing and apparel items such as t-shirts, sweatshirts, hoodies, pants, and sneakers. Another one could be Class 028 which is for a variety of toys including card and board games, balloons, playing cards, plush dolls, and action figures. Finally, a creator might apply for protection in International Class 041 for entertainment services as this class is for entertainment content such as motion pictures, casino games, television and animated cartoon programs, and amusement and theme parks. While this is not an exhaustive list, it is meant to highlight a few potential avenues of monetization and protection available to the owner of a creative work.
Overall, there are a variety of intellectual property considerations for the creators of cartoons, comics, anime, and manga works, including trademark and copyright protection. While each legal protection has its own potential costs and benefits, the usage of both of these intellectual property protections could be advantageous to a party’s business and monetization by ensuring that all their creative assets are properly protected so that they can efficiently and effectively license and commercialize them as the owner desires.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
© 2022 Justin Jacobson Law, P.C.