Recently, there was a consultation from the brand side that it is too expensive to hire celebrities to endorse. Can we use well-known film and television character images to advertise? Who do I need to sign up with if I use movie and TV characters to advertise? Correspondingly, there are also questions raised by film and television companies about whether the company, as the copyright owner of the film and television series, can authorize the role of the film and television series to others for use? Where is the boundary between the use of the right to portray characters and actors in film and television dramas?

 

1、 Using movie and television characters as endorsements requires a dual license

 

The use of posters, stills, and character images for product or brand advertising generally involves two aspects of licensing. On the one hand, it is necessary to obtain the consent of the copyright owner of the characters in the film and television series, that is, the copyright owner of the film and television series. On the other hand, it may also involve the issue of the portrait rights of role playing actors.

 

If the character is very close to the actor's own image, that is, the role's changes to the actor's appearance cannot obscure the actor's own image, and the audience can identify the actor playing the role and establish a cognitive connection with it, then it is necessary to obtain the actor's portrait authorization. However, if it is a special actor or a facial makeup actor, and the general audience cannot distinguish the actor's own image, it does not constitute the use of the actor's portrait rights, and it may not require the authorization of the actor.

 

2、 Game between Film and Television Companies and Actors on Portrait Rights

 

Seeing this, some people will think that using movie and television character endorsement requires both the authorization of the movie and television copyright owner and the authorization of the actor. Isn't the cost even higher? However, this is not always the case in industry practice. This issue involves the agreement on the scope of authorized use of portrait rights in actor employment contracts signed between film and television companies (i.e., film and television copyright owners) and actors (including actor brokerage companies), which is also the focus of disputes between film and television companies and actors in the negotiation of actor employment contracts.

 

Based on practical experience in the development of film and television drama projects, the author summarizes the following aspects of the authorization agreement on the use of portrait rights in actor employment contracts.

 

//There is no doubt about the use of actor portraits in the film and television dramas themselves

 

The issue of the use of actor portraits in the film and television series itself should be uncontroversial. Once a film and television company signs an actor employment contract with an actor for a film and television work, and the actor agrees to perform in the film and television work, it means that the actor has authorized the use of his or her portraits in the film and television work. The performance of actors in film and television works has become an inseparable part of the film and television works, and actors cannot claim additional portrait rights to the film and television works themselves. Therefore, even if there is no such agreement in the contract, the film and television company has the full right to use the portrait of the actor in the shooting, distribution, and broadcast of the film and television work, without obtaining additional authorization and consent from the actor.

 

//There are restrictions on the use of actor portraits in the promotion of film and television dramas

 

The use of actor portraits in the promotion of film and television dramas is a reasonable extension of the use of actor portraits in film and television dramas. Generally, there are special film and television drama promotion clauses in actor employment contracts, which explicitly stipulate that film and television companies have the right to use actor portraits in the promotion and promotion of film and television works. The content of the terms is similar to: "The film and television company has the right to use, in various ways, free of charge, promotional texts, lines, posters, stills, screenshots, plot GIFs, highlights, documentaries, trailers, promotional films, cut pieces, audio-visual works, and other materials containing the image, portrait, voice, and name of the artist of Party B for the purpose of promoting the play." Under normal circumstances, Actors are generally able to accept such terms.

 

However, in order to maintain their image as much as possible, some actors, especially star actors, may require in their contracts that all promotional materials using the actor's portrait must be confirmed in advance by the actor to ensure that their character image conforms to their personal settings, in order to avoid situations where the zodiac image is vilified or derogatory. This arrangement has to some extent increased the burden on film and television companies. The promotion and distribution of a film and television series may involve many promotional activities and the production of a large number of promotional materials. If all of them are to be submitted to the actors for prior confirmation, considerable manpower, material resources, and time costs need to be invested. Therefore, film and television companies generally treat actors differently based on their popularity, granting star actors the right to confirm in advance.

 

//3. The use of actor portraits in the promotion of the broadcast platform, and the mandatory requirements of the platform

 

The use of actor portraits in the promotion of broadcast platforms has emerged as a new phenomenon in recent years. Generally, new media broadcast platforms such as online video platforms (Youku, Tencent, iQiyi, etc.) have such requirements. Different online video platforms have different requirements for the use of actor portraits in the promotion of broadcast platforms, generally in the following aspects:

 

(1) Publicity platform itself or platform VIP member services

 

In order to promote the needs of the platform itself or the platform's VIP member services, the online video platform will stipulate in the copyright licensing agreement signed with the film and television company that the platform party and its affiliated companies have the right to promote the platform party and the platform party's video VIP member services for the purpose, Permanently and gratuitously use Party B's materials (including but not limited to main posters, character posters, stills, character images, etc.) in film and television dramas and related content.

 

(2) Related parties and related elements of the promotion platform

 

In some cases, online video platforms will also expand the scope of use of actor portraits in the promotion of broadcast platforms, requiring them to have the right to use, in various ways, the promotional text, lines, posters, stills, screenshots, and plot GIFs of characters/character images, portraits, and sounds of film and television dramas for the purpose of promoting the platform's/platform's associated elements/platform's associated companies/platform's collaborative Internet TV terminals Various material materials such as flashbacks, documentaries, trailers, promotional films, sliced fragments, audio-visual works, etc.

 

(3) Publicity for platform partner customers

 

Some stronger online video platforms will additionally request that they have the right to add information about platform partners and their products during the process of using film and television drama materials (including characters/character images/portraits of film and television dramas) to promote film and television dramas and broadcast platforms. Platform parties, their affiliates, and platform partners also have the right to use the above materials during the process of advertising, promotion, and placement through online and offline channels.

 

This approach is a shortcut for brand owners who want to use movie and TV series characters to endorse their products and platforms. The brand owner can use movie and TV series characters together with the Taiwan side to jointly promote their products and platforms during the promotional period of the movie and TV series. At this time, the cost is generally lower than the skyrocketing cost of finding a star to endorse them alone.

 

Not all actors can accept the above three levels of terms and requirements, especially Article 3, which is equivalent to authorizing actors' portrait rights to platform partners for commercial advertising promotion. However, such commercial use authorization generally requires signing a separate agreement and paying related fees. Film and television companies often require multiple rounds of negotiation with actors to determine the relevant terms. If a film and television company and an online video platform have agreed on the terms for the use of the aforementioned actor's portrait rights in the film and television drama copyright license agreement, they must be agreed in the actor employment contract as is. If the actor does not agree to the above agreement, he or she can only change the actor to perform. There is also a possibility that the online video platform is particularly optimistic about an actor and strongly demands that the actor act, but the actor does not agree to the above terms. Therefore, the film and television company needs to sign a supplementary agreement with the online video platform to exempt the use of the actor's portrait rights in the platform's propaganda.

 

//4. There are disputes over the use of actor portraits in the development of film and television drama derivatives

 

Film and television derivatives mainly refer to products or services that can be sold through development and design based on film and television elements such as characters, storylines, scenes, props, and logos in film and television works. Derivatives generally include audiovisual products, toys, accessories, clothing, models, various derivative products including works related elements such as clothing, food, housing, and transportation, as well as derivative services such as theme parks, exhibition halls, restaurants, cafes, and recreational facilities.

 

The use of actor portraits in the development of film and television derivatives is generally divided into two categories. One category is for the promotion of film and television dramas. For example, film and television companies have agreed that they have the right to use actor characters/character images/portraits in a non-profit form to develop and design derivative products such as souvenirs, giveaways, and public welfare products for the promotion of film and television dramas. Most actors will accept such terms, and some individual star actors do not agree to the terms, requiring a separate cooperation agreement to be signed and relevant fees to be paid.

 

The other category of actor portraits used for film and television derivative development is used for commercial derivative development, such as the development of audio-visual products, toys, jewelry, clothing, models, and other derivative products for sale and profit, or the licensing of theme parks, exhibition halls, restaurants, cafes, and amusement facilities for profit. Most actors cannot accept such terms, and need to sign a separate cooperation agreement and pay licensing fees.

 

If film and television companies can strive for such clauses in actor employment contracts, they can cooperate with brand parties to develop and sell commercial derivatives (such as co branded products) using film and television series characters. The cost is generally lower than the skyrocketing cost of seeking celebrity endorsements alone.

 

//5. The use of actor portraits in implanted advertisements and difficulties in negotiation

 

Implantation advertising is a method of advertising that integrates product or service or brand symbols into film and television dramas, allowing viewers to leave an impression on the product or brand while watching the film and television dramas, in order to achieve marketing purposes. If a film and television company plans to introduce implanted advertisements into a film and television series, and the implanted products or brands require actors to hold, wear, orally broadcast, or share the same frame with the actors, they need the prior consent and confirmation of the actors, otherwise the actors have the right to refuse to cooperate with the shooting. This is also a difficult issue in negotiations between film and television companies and actors. Ordinary actors are more likely to agree to such terms, while well-known actors are likely to disagree. Even if they agree, they will need to pay additional fees.

 

It should be noted that star actors generally act as spokespersons for several products or brands at the same time, and there are often restrictive clauses in endorsement contracts that require actors not to participate in movies and TV dramas with advertising implants for the same category of products during the endorsement period, or not to hold, wear, or broadcast the same category of products or the same frame as the same category of products during the participation. Therefore, film and television companies should require actors to disclose their endorsement product/brand related information in advance before signing the employment contract to avoid conflicts between the products implanted in the advertisement and the products already endorsed by the actors.

 

//6. The independent use of actor portraits in commercial licensing has little hope

 

For example, if a film and television company wishes to independently use movie and television drama characters for the advertising of products or services of other brand parties, which is the ideal state mentioned in this article - using movie and television drama characters to represent the brand party, it must obtain the explicit permission of the actor, otherwise it will constitute an infringement of the actor's portrait rights.

 

However, there is very little hope that film and television companies will obtain licenses for actors (especially famous actors) regarding this provision. As Weiya once said, "The fate of stars is to bring goods." The commercial value of actors ultimately lies in their remuneration and advertising endorsements. Ordinary actors do not authorize their portrait rights to film and television companies without restriction because they shoot a film and television series. They agree that film and television companies use their film and television series roles for advertising purposes on several brands. There are endorsement opportunities. Isn't it good to sign your own contract and pay your own endorsement fee?

 

Of course, new unknown actors may agree to such terms, but their roles in films and TV plays are generally minor supporting role, lacking the popularity and commercial value required by the brand. If the brand chooses to endorse the role of the film and television series, it only needs to sign a contract with the copyright owner of the film and television series, with a lower cost.

 

Therefore, the advertising and promotion of "movie and TV series characters" have many bonuses, and they are not meant to be used when they want to; The use of celebrity portrait rights has boundaries and requires extensive research

 

(This article is translated by software translator for reference only.)