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Character Copyright


​Character Copyright

Betty Boop Harvey 1950s Model Capser the Friendly Ghost bettybooplover

Betty Boop has been in and out of court which has been ongoing for several decades. The reason the suits was who had actually owned the rights to the character. Aside from the $250,000 Helen Kane (1932-1934) lawsuit, Harvey Films (also known as Harvey Entertainment, The Harvey Entertainment Company or simply Harvey) an animation production arm of comic book publisher Harvey Comics which was founded in 1957 were sold the rights to Betty Boop in the 1950s and according to information in the 1970s the Fleischer family tried to buy the rights back to the character and were convinced they were the exclusive owner of Betty Boop. According to court details Harvey were going to reboot Betty Boop “Presumably to make new movies featuring the character, although there is no evidence they ever did" minus a drawing of Betty Boop from the 1950s that most recently surfaced. It was announced in 2011 that the Fleischer family did not own the copyright or trademark of Betty Boop and cannot sue others for using the character's image. The Ninth Circuit Court of Appeals upheld a lower court’s decision that a half-dozen manufacturers of Betty Boop merchandise hadn’t infringed on Fleischer Studios' copyright because the Fleischer Studios couldn’t demonstrate it has one. The Fleischer family contended that Paramount transferred its Betty Boop rights in 1955 to UM&M TV, which three years later sold them to the company that eventually became Republic Pictures. A decade later, Republic allegedly transferred the rights back to Fleischer Studios. Judge Florence Marie Cooper ruled the Fleischer heirs failed to show proof of any of the transfers the plaintiffs alleged took place after Paramount purchased the rights in 1942. The appeals court agreed in a 2-1 decision, finding that Paramount retained the copyright in its 1955 agreement with UM&M TV, and actually sold Betty Boop to Harvey Films the animation arm of Harvey Comics, now owned by Classic Media some three years later. The panel also dismissed Fleischers’ trademark claims for lack of evidence. It was later found out that the Betty Boop character is a Fleischer trademark but it can’t be used to stop people from redistributing old PD Betty images/items of the character. The Fleischer family tried to say trademark trumped copyright but the Judge said that it doesn’t. One of the main parts of Harvey claiming they owned the character was whether Paramount legitimately sold the Betty Boop trademark to Harvey. According to Leslie Cabarga;  "King Features maintained that they owned the rights to Betty Boop on having issued a Betty Boop comic in the 1930s. King Features agreed to the concept of Max Fleischer family co-ownership because it was easier than trying to unravel true ownership in which it might be revealed that King Features did not actually own Betty. A King Features lawyer told me once in the 1970s that at one point The Fleischers tried to take ownership of Betty away from them but King Features basically told them to go to hell." Which indicated to Leslie Cabarga that the Fleichers really had no power in the situation. The same lawyer also told Cabarga definitely that their research showed that Koko the Clown was in the public domain. Today Betty Boop is fully branded by King Features Syndicate.

​1941

In 1941 the Fleischer Studios had given all the rights to the character to Paramount.

​1955

In 1955 the appeals court considered between Paramount and UM&M TV Corp. The assignment in 1955, under the Copyright Act of 1909. Paramount had granted UM&M all of Paramount's right, title and interest and Photoplays of Betty Boop. Anything to the contrary notwithstanding, no grant or assignment is made hereunder to [UM&M] of the characters and characterizations contained in said Sold Photoplays or said literary material, or of the copyrights in said characters or characterizations, or of any production or other rights in said characters and characterizations, or to use said characters and characterizations or the names of said characters or trade names, trademark and names of the series of Sold Photoplays or of said literary material in any manner except only as part of the particular Sold Photoplay in which they or any of them are contained.

1958

In 1958 Paramount gave the rights to Harvey Films Inc. Harvey went on to license the character in the 1960s. 

1980

In 1980 Harvey Cartoons transferred Betty Boop to Alfred Harvey. It was often stated that Paramount might have not legitimately sold Betty's trademark to Harvey.

2006

In 2006 the Fleischer Studios sued AVELA who were selling Betty Boop on posters. The family of the creator of Betty Boop Max Fleischer lost the suit. As the Fleischer Studios INC at the time could not prove it had title to the character. The Judge stated that if they had ruled that AVELA's depictions of Betty Boop infringed the Fleischer trademark the character would never enter the Public Domain. The Judge also said that AVELA Inc licensed Betty Boop dolls, T-shirts and handbags under a copyright based on vintage posters and it did not infringe any trademark. The Judge then pointed to a 2004 Minnesota search warrant that turned up a large ceramic Betty Boop doll with four concealed, separately wrapped plastic bundles of high-purity-level methamphetamine inside.

2010

In 2010 the case with A.V.E.L.A., Inc., ArtNostalgia.com, Inc., X One X Movie Archive, Inc., and Leo Valencia (collectively, A.V.E.L.A.) A.V.E.L.A., INC., DBA Art & D.C. No. Vintage Entertainment Licensing was argued and submitted. 

2011

In 2011 the case was filed defendants in this action,A.V.E.L.A., Inc., ArtNostalgia.com, Inc., X One X Movie Archive, Inc, and Leo Valencia (collectively, A.V.E.L.A.) , who also license Betty Boop merchandise. The copyright pursuant to which A.V.E.L.A. licenses its products is based on vintage posters featuring Betty Boop’s image that A.V.E.L.A. had restored. A.V.E.L.A. disputed this alleged chain of title, arguing that there was no admissible evidence to establish each link in the chain with the exception of the transfer from Original Fleischer to Paramount. The district court agreed and held that Fleischer failed to satisfy its burden of proof regarding the transfer of rights from UM&M to NTA and from NTA to Republic Pictures. The Judges that if they had ruled that A.V.E.L.A.’s depictions of Betty Boop infringed Fleischer’s trademarks, the Betty Boop character would essentially never enter the public domain. Such a result would run directly contrary to Dastar. 539 U.S. at 37 (“To hold otherwise would be akin to finding that § 43(a) created a species of perpetual patent and copyright, which Congress may not do”). Boop, it cannot assert a trademark infringement action against A.V.E.L.A. Given that A.V.E.L.A.’s use of Betty Boop is functional and aesthetic, and because ruling in Fleischer’s favor would prevent the Betty Boop character from ever entering the public domain, Fleischer’s infringement claim is barred by Job’s Daughters and Dastar. In light of their holding, they also deny as moot Fleischer’s motion to take judicial notice of the incontestable status of its trademark registrations.

2014

In 2014 the High Court delivered two judgements in the landmark character merchandising case. The claimants Hearst Holdings based in New York and The Fleischer Studios Inc based in Califorina. Hearst owned various Betty Boop UK trademarks and Community Trademarks (CTMs) co-owned by Fleischer, including the work mark Betty Boop and the iconic device mark depiciting the image of Betty Boop posing. The defendant being AVELA a US based company. The claimants issued proceedings for trademark infringement of the UK marks and CTMs. AVELA contended that it was a legitimate source of Betty Boop imagery and that any Betty Boop imagery was purely decorative and made no representation about trade origin and could not, therefore constitute trademark infringement. The Judges view was that Betty Boop was not famous today because she was a 1930s character. Many people unlikely seen the cartoons but because of the claimants, extensive licensing and trading activities in the UK since the 1980s. The associations with the Betty Boop character in today's society were more than just a reference to the 1930s era. The character had been modernised and had a current up-to-date appeal. The claimants had continually worked hard to develop the Betty Boop brand and had educated the public to recognise the Betty Boop words and images as a brand. The Judge accepted that in some circumstances the public was aware that two concrete examples of actual confusion were proven at trade level. Despite it being a condition of AVELA's licences that licensees could not use the words Betty Boop, Boop or Betty alone. Or any slogan such as Boop Oop a Doop. The Judge found this was insufficient to avoid confusion. The Judge rejected the defendants contention that their use of Betty Boop was purely decorative and not being used as a badge of orgin. The Judge ruled that the images were not descriptive indications. Many of the images in the library had no connection to the film posters at all. Even if the defendants did own the copyright in the restored posters, it did not give them the right to exploit the work, nor infringe another's trademark. The claimants were successful when the Judge dealt with two issues that arose after his main judgement. The defendants alleged that the claimants had “no rights (eg, copyright)” in the Betty Boop character, so the trademark applications were made in bad faith and the marks were invalid. They also alleged that the goodwill and reputation built by the claimants was founded on a misrepresentation as to the ownership of copyright. The main judgment had already found that the Betty Boop words and image marks were distinctive when the defendants began trading in 2009, and had also acquired distinctiveness when they were registered in 1992. The registrations were therefore valid as the claimants had rights under the law of passing off. The goodwill and reputation had not been based on misrepresentation about ownership of copyright, but based on the claimants’ extensive use of their trademarks. The judge held the UK court did have jurisdiction to hear the English proceedings because the Italian and English actions were not based on the same facts. The judge declined to stay the proceedings on the special grounds that he had already given judgment. This case also distinguishes between cases involving invented characters and real people. While the judge clarified that there was no law that granted invented characters stronger rights than real people, he admitted it would probably be easier to educate the public to believe that goods relating to an invented character came from a single source than it might be for a real person, especially given that copyright law could give the inventor of that character the ability to control the reproduction of that character for a long time. However, that same judge also ruled in Fenty v Arcadia, that the pop star, Rihanna, could prevent reproduction of her image on a t-shirt in Topshop. 


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