The foundation of the licensing business is the existence of unique, legally protected properties that create a real point of difference for licensees.
As a number of current initiatives attest, however, it is possible to oversee a viable licensing program even when full copyright or trademark protection is impossible.
The vagaries of international trademark law sometimes result in parallel consumer products efforts, for example. Even as Disney/Lucasfilm’s Star Wars licensing is in full gear leading up to the new feature film in December, licensing agency Golden Goose is assisting the designer of the Original Stormtrooper costume, Andrew Ainsworth, with a parallel program in the U.K. market.
The property became licenseable after Ainsworth won a series of legal battles against Lucasfilm and Disney in his home country, allowing him to maintain ownership rights to the original costume design there. It is being licensed for high-end collectibles.
Another example has to do with expired copyrights. Once the copyright-protection period is over, creative assets such as text and images move into the public domain, meaning that several companies can concurrently oversee licensing programs tied to the source material. Each is typically associated with its own trademarked brand, but the fact remains that anyone can create products tied to the original story or graphics.
Van Gogh’s imagery, all completed before 1890, is licensed by a variety of museums that have his paintings in their holdings, including the U.K.’s National Gallery and the Van Gogh Museum in Amsterdam. This results in ranges of similar-looking products under the different brand names. Meanwhile, images associated with the 150-year-old book Alice in Wonderland are licensed under several museum-, retailer-, and publishing-related labels, as well as appearing in unlicensed (but perfectly legal) products by a handful of manufacturers and retailers. (See our October 15, 2015 post for more details.)
Some properties are non-protectable, or at least very narrowly protectable. An array of companies are currently overseeing licensing programs tied to trademarked emoji-related brands and copyrighted emoji-related designs, for instance. While these properties technically may be unique, they bear a strong resemblance to each other.
Licensing efforts falling into all three sectors have resulted in successful programs, attracting numerous licensees and generating substantial sales. Still, there is typically at least a degree of market confusion and/or oversaturation in situations such as these.
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