Copyright licensing and a cautionary (fairy) tale

Last week it was reported that DreamWorks LLC, the studio behind the popular animated franchise, “Shrek”, is regretting its decision to allow men’s magazine VMan to use characters from the film in a fashion photo shoot.  The photos features characters such as Shrek, Princess Fiona and Donkey in a variety of scenes, “posing” with scantily-clad models.  The magazine spread has drawn a lot of publicity — some good, some bad — and the photos have variously been described as “racy”, “sultry” and even “bizarre” [ed: a quick survey of the IP Whiteboard team went with “bizarre”].  Some commentators have questioned the appropriateness of the spread as a marketing strategy, given the target audience of the Shrek films (children). But for IP lawyers, the tale serves as an animated reminder of the importance of control in copyright licensing, and the potential risks involved when brand owners attempt to push the boundaries in marketing a family-friendly brand.

So, you might ask, how did characters from Shrek end up in a fashion spread shot by fashion photographer Ellen von Unwerth, styled by Lady Gaga’s personal stylist, for a magazine that describes itself as “created for a 21st-century kind of man—one who is stylish and curious, urban and adventuresome, comfortable with himself and at home in the world“? The spread in VMan magazine was part of DreamWorks’s marketing campaign to promote the upcoming film “Shrek: Forever and After”.  DreamWorks appears to have licensed its rights in the characters to VMan, but it is unclear on what terms.  Media reports indicate that although DreamWorks representatives “respect[ed] VMan’s creative licence“, they were disappointed that the product “did not turn out the way they envisaged it” when compared to the initial pitch.   
From a copyright perspective, DreamWorks’ predicament is a reminder of the need for an approval or control mechanism when licensing artistic works.  It would have been open to DreamWorks to add a condition to its agreement with VMan stipulating that its use of the characters was subject to studio approval of the publication.  Such a clause would have given DreamWorks the final say on VMan’s use of the Shrek characters, and ensure complete control over their brand association.   
It is also a cautionary tale for owners of “family-friendly” brands when considering a new marketing campaign that may push the boundaries.  It seems odd that the studio didn’t consider the suggestive use of its characters to be a risk when granting the licence to VMan, given the nature of the magazine.  This aside, the story raises interesting questions about whether DreamWorks’ approach is effective as a marketing strategy.  It’s no secret that the Shrek films are designed to appeal to both adults and children — there are messages at different levels for a varying audience.  Commentators have characterised the photo spread in different ways: on the one hand, a certain “desperation” to get any sort of publicity for the movie, and on the other hand, a clever and inoffensive campaign that was clearly meant for adults.
One thing’s for sure — the campaign has certainly piqued people’s interest.  In the words of Oscar Wilde, “there is only one thing worse than being talked about, and that’s not being talked about“.

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