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Avvocato Arlo Canella
In the realm of copyright law, the goal of this article is to provide clear guidance and answers to the most common questions related to concept and character creation, work on commission, and copyright assignment.
In today’s digital scene, creating an original concept and characters that are appealing to the audience is often critical to the success of an advertising campaign. These elements are not only essential to any storytelling hypothesis, but can become real value assets for the client company.
However, defining the contractual conditions associated with this creative process can be complex and require special attention.
It is in this context that our law firm, which specializes in intellectual property, particularly stands out. We often offer support and advice to companies, creatives and advertising agencies in drafting contracts involving the creation of original concepts and characters for many advertising campaigns.
This article is dedicated to all those who wish to better understand the legal and contractual aspects related to this peculiar type of commissioning. As a matter of fact, when dealing with contracts related to content creation, it is important to be familiar with the law, case law precedents and, most importantly, what we are talking about.
A concept is an idea or design that defines the essence of a given product, service, film, book, advertising campaign, etc. In the field of advertising, the concept represents the key idea that guides the creation and implementation of a campaign. It can include a variety of elements, such as visual style, narrative themes, key messages and communication strategy. The concept is often presented in the form of a written document or presentation, detailing the idea and how it will be implemented.
A character, on the other hand, is an imaginary individual created for a narrative work, such as a book, film, comic book, video game, or advertising campaign. The character may have a variety of traits and characteristics, such as a name, physical appearance, personality, life story, and relationships with other characters.
In advertising campaigns, characters can be used to create an emotional connection with the audience, to represent brand values, or to tell a story that includes and enhances the promoted product or service. Let’s see how these original creations are regulated by law.
The “concept” of an advertising campaign can be considered protected by author’s rights if it meets certain requirements. To be protected by author’s rights, a “concept” must be creative as well as expressed in a form that makes it identifiable and distinguishable.
This concept was made very clear in the grounds of the order of the Court of Turin, in an interlocutory complaint proceeding, rendered on March 2, 2015 (G.R. 32855/2014). For example, it is illustrated how the protection does not apply to the ideas themselves, but rather to the original expression of those ideas.
In the case at hand, the idea was for a Fiat commercial: “The 500, so small, ecological, accessible and smart, represents a real philosophy of life. A philosophy that in this commercial is presented through ‘nonsense,’ in a way that is provocative but – precisely for this reason – in its own way very close to the spirit of the car.”
The script indicated a number of elements that fundamentally characterized the advertising message:
The court had ruled that although the basic idea of the campaign could not be protected as such, the original declination of the idea itself (including the arrangement of visual elements, narrative themes, etc.) could be considered a work of authorship and, therefore, protected by copyright.
Hence, to be protected, a concept must show a certain level of creativity and originality, not be an abstract idea but rather an idea developed and defined in such a way that it can be clearly identified and distinguished from others. However, it is important to note that each case is unique and copyright protection may vary depending on the specific circumstances. Therefore, it is always advisable to consult an experienced copyright lawyer when dealing with issues related to the protection of advertising “concepts.”
Court of Rome Judgment No. 6504 of 4/16/2021 offered a clear explanation of the term “character.”
A “character” is a subject created by an author who possesses such distinctive characteristics as to make him immediately recognizable, even outside the original context in which he was conceived. Moreover, the character must be creative, that is, new and the result of human inventiveness, as stipulated in Article 1 of the Italian Author’s Right Law (L. No. 633 of 1941).
Also according to the Italian Supreme Court, creativity is fundamental in determining whether a creative work possesses authorial characteristics deserving of legal protection (ex multis sez. I, March 12, 2004, no. 5089).
The Rome court cited several examples of protected characters to illustrate its point. According to the court, characters such as “James Bond” or “Sherlock Holmes” are immediately recognizable by the public and have acquired such notoriety that they are certainly creative works independent of the context in which they are placed or the image of the actors who played them.
The Tribunal, giving further examples, also cited other protected characters, such as “Gabibbo,” “Diabolik,” the Pink Panther,” and “Tex Willer,” which are, as a matter of fact, immediately recognizable even when placed in a context other than the one in which they were originally created. Context, of course, means the TV show, comic book or movie.
However, in Judgment 16/04/2021, No. 6504, the Court of Rome had denied protection to the character of the “Man With No Name”, played by Clint Eastwood, in Sergio Leone’s Dollar Trilogy. The Man with No Name is not considered an original and creative work because, according to the Tribunal, it is not a new and original idea, but rather a personal reworking of archetypes already known from literary and cinematic narratives.
As a matter of fact, Wikipedia describes the nameless man thus, “He is usually portrayed as an ‘outsider’, often a bounty hunter. Characteristically he is also good with words, often useful for his purposes, but he speaks only when strictly necessary. He often plays dirty, acts cunningly, and does not think twice about shooting first if it satisfies his personal sense of justice. He expresses strength, self-reliance, and great gunslinging skills, but he breaks away from this in so far as moral ambiguity is concerned.” (See Man with no name – Wikipedia).
In short, literature is full of … gunslingers who are outsiders, to speak of an original character, with independent and autonomous protection from the film, according to the Rome Tribunal it would have taken something more specific, original and recognizable by the public.
In summary, according to the orientation of the Supreme Court and the Court of Rome, a character can be considered a copyrighted work only if it is the result of the author’s original and personal creation, but also if it has characteristics that make it immediately recognizable to the public and if it has a certain independence from the context in which it was conceived.
In the context of creating a concept or characters for an advertising campaign, it is very important to understand the difference between a work-for-hire and an assignment of rights contract.
Commissioned work:
In this situation, a creative is commissioned to create something (such as a concept or character) for a specific project. The creative is paid for his or her work, and the company or advertising agency is allowed to use what he or she has created only for that specific project (within the limits and according to the purposes of the assignment contract). The creative retains the moral and property rights to the work for any other exploitation, which means that if the company or agency wants to use the concept or character for other projects they will have to get permission from the creative.
Rights assignment contract:
An assignment of rights contract, on the other hand, requires the creative to transfer all or part of his or her copyright in the concept or characters to the company or advertising agency. This may include the right to reproduce, distribute, perform, display, create derivative works, and economically exploit the concept or characters in any way. Once the rights are assigned, the company or agency may use the concept or characters for their intended purposes without having to seek further permission from the creative.
In either case, the creative may receive a one-time payment and waive any rights to future royalties. Sometimes, more correctly, the creative obtains a contract that includes both an initial payment for the assignment of rights and a royalty agreement for a certain period of time or amount of use.
The choice between a commissioned work (“commission”) and an assignment of rights depends on several factors. It is always advisable to consult with an experienced copyright lawyer and a tax attorney to understand which option is best suited in each specific situation or to move in line with current industry practice.
A contract for the assignment of copyright, as aforementioned, is a legal document that allows the transfer of the rights to a work from one party to another. The contract allows the author to monetize his creations and the assignee to legitimately operate the commercial exploitation of the works.
Key elements of the contract include:
It should also be mentioned that the new Article 110c of the Italian copyright law, implementing the Copyright Directive, provided that “authors and performing artists [… ] have the right to additional remuneration, adequate and equitable, from the party with whom they have entered into a contract for the exploitation of rights or its successors in title, if the agreed remuneration proves to be disproportionately low in relation to the revenues originated over time from the exploitation of their works or artistic performances, taking into account all possible types of revenues derived from the exploitation of the work or artistic performance, for any reason and in any form, including the making available of phonograms online” (I have already discussed this topic in my previous article “The New Obligation to Report to Authors”).
When it comes to the creation of characters or concepts for advertising campaigns, the choice between a commissioning contract and an assignment of rights contract depends on several factors, including the specific needs of the commissioner and the extent of the intended use for the concept and characters.
Let’s take a practical example. Suppose an illustrator is hired to create a character for a specific advertising campaign.
The contract provides for a flat fee and the company’s right to use the character only for that specific campaign. If the company also decides to use the character in other campaigns or in merchandising, but the contract does not explicitly provide for this, the company might have to negotiate additional rights with the illustrator or risk a legal dispute.
Under a different scenario, an author might have already contractually assigned all rights to a concept and related characters to a company for a one-time payment. If the company then uses them to create a series of highly successful films, since the author has assigned all his rights in the original contract, he would not be entitled to additional royalties from the films.
In terms of litigation, a celebrated example involves the creators of Superman, Jerry Siegel and Joe Shuster, who sold the rights to the character to DC Comics for only $130 in 1938. Only after decades of legal battles were the families of Superman’s creators able to get a share of the profits from the character (to learn more about the history of Superman, I encourage you to read this interesting article: https://www.lospaziobianco.it/creato-superman-storia-joe-shuster-jerry-siegel/).
In conclusion, whether it is a work-for-hire or an assignment of rights, it is essential to carefully analyze the contract governing creative work and the copyright of works of genius such as concepts and characters.
In any case, it is always advisable to consult with an experienced copyright lawyer and tax attorney to understand which option is the most appropriate in each specific situation, to protect yourself and to move in line with current industry practice.
Avvocato Arlo Canella
