Devika continues to churn out more posts looking into areas that we’ve not often covered on this blog! This is her 5th entry to our Fellowship and is yet another very interesting read. You can view her previous posts here.
Amul girl and her Filmi Avatars
Amul ads are known for their excellent depiction of some of the burning issues in the country and also for the movie spoofs that they create. Take for instance, ‘Buttermeez Dil’, the movie spoof of ‘Yeh Jawaani Hai Deewani’ (Other popular films which have been the subject of Amul ads include ‘Bhaag Milkha Bhaag’ and ‘Chennai Express’).
The latest Amul poster to hit the billboards is the movie spoof of Aamir Khan-blockbuster ‘Dhoom 3’–
The Amul ad is a recreation of one of the posters of Dhoom 3–
Amul’s spoof ad depicts the Amul girl in the Kamli avatar of Katrina Kaif in Dhoom 3 and is endearing. Unlike the controversial Dhoom 3 movie spoof by AIB, the Amul ad has been received well; it does, however, make for an interesting discussion on whether the Amul ad can be considered a form of character merchandising (more specifically, ‘image merchandising’- where fictional characters are played by real life persons) and if this be the case, should Amul have sought a license from Yash Raj Films (the producers of Dhoom 3) or the actors, Katrina Kaif and Aamir Khan before depicting the characters of the film in its advertisement?
Merchandising is ‘sales promotion as a comprehensive function including market research, development of new products, coordination of manufacture and marketing, and effective advertising and selling’.
Character merchandising is ‘the adaptation or secondary exploitation by the creator of a fictional character or by a real person or by one or several authorized third parties of the essential personality features (such as the name, image or appearance) of a character in relation to various goods and/or services with a view to creating in prospective customers a desire to acquire those goods and/or to use those services because of the customers’ affinity with that character.’ Simply, character merchandising may be understood as a form of trademark licensing by which the creator of a fictitious character licenses the right to use the character with respect to merchandising of goods/services.
For e.g. if I want to use the image of Ronald Mc Donald (the mascot of Mc Donald’s) on t-shirts that I manufacture, I will require a character merchandising license from Mc Donald’s Corporation.
Character merchandising also comes into play where the name of a public figure is used to advertise goods/services. For example, a label attached to a clothing line bearing the name of ‘Audrey Hepburn’ will require license from the estate of Audrey Hepburn to enable the fashion house to use the same (more accurately known as ‘personality merchandising’).
Character merchandising helps bring in significant revenue for the creator of a character by allowing commercial exploitation of the characters created by them, for example, Harry Potter and Disney characters used on a gamut of merchandise ranging from bags to t-shirts. It is estimated that Disney earned $US 28.6 billion dollars from merchandising and licensing in 2010 (almost 20 times of its theatrical revenue).
In case of Amul ads, one might argue that Amul has not actually used the character on the packaging of the dairy products that it sells. However, I argue that the right to use the character is not limited to use on packaging of the goods but also the advertisements promoting the sale of those goods, i.e., character merchandising protection extends not only to marketing but also advertising of a product. This is evident from the definition of ‘merchandising’ quoted above.
While it is also true that Amul has created movie spoofs earlier and done so without courting any controversy, the reason why this particular Dhoom 3 spoof catches my fancy is the extensive merchandising that Dhoom 3 producers have done in order to commercially exploit the film characters which they created; it is estimated that this is the first time a Bollywood film has been promoted on such a large scale via character merchandising.
Trademark claims in cases of character merchandising are brought under s. 27 of The Trademarks Act for passing off. For such a claim to succeed, the elements of passing off (i.e. misrepresentation by defendant, goodwill/reputation of plaintiff, actual loss/likelihood of future loss to plaintiff) must be proved by the plaintiff.
Character merchandising protection is also afforded under copyright law where the creator of a character has the right to commercially exploit the character created by him.
Additionally, the actors Aamir Khan and Katrina Kaif whose characters have been depicted in the Amul ad maight succeed in a suit for false endorsement against the advertisers. This has been held in Eddie Irvine v. Talksport ( EWCA Civ 423)
The advertisers in this case would most likely resort to the ‘fair use’ provision (which allows fair dealing in a work including satire/parody) claiming that they have spoofed innumerable movies in the past and this should not be any different; they might also argue that the Dhoom 3 butter ad is actually a tribute to the film. However, the primary purpose of advertisements is to sell products and advertising can significantly impact consumer choices; one of the reasons why Pepsi sells and a beverage ‘X’ does not is because of the celebrities endorsing the carbonated drink; this is why companies spend considerably on advertising.
If in future, a claim for character merchandising is filed successfully against Amul ad-makers, it would significantly change the way Amul products are advertised and might just result in the Amul girl quitting her filmi avatars.