On the features of civil liability for the illegal use of images of fictional characters as objects of copyright

Theoretical and practical issues of civil liability of business entities that use images of fictional characters, mainly from feature films, without having the appropriate permission from the copyright holders, have been studied. The author has established that the illegal use of images of characters, as a rule, is associated with the production of goods whose packaging or appearance embody well-known fictional images. Consumers are subconsciously guided by these images and form demand necessary to increase sales. The infringer, embodying the images of famous characters protected both by copyright and as part of trademarks in goods and on their packaging, significantly reduces their costs due to non-payment of a license fee to the right holder and thereby reduces prices for these goods. The actual damage may be the costs of the right holder, which they have incurred or will inevitably incur when restoring their violated right. These costs can be incurred when making test purchases of counterfeit goods on which cartoon characters are placed, upon receipt of information fixing relevant violations, information on sales volumes of counterfeit goods, etc. Losses caused by violation of the exclusive right to depict a fictional character may also be expressed in the form of lost profits. Such a loss may manifest itself either in the failure of the right holder to receive remuneration for its illegal use, or in the failure to receive income from the independent use of the character in the implementation of certain entrepreneurial activities. If it is proved that the illegal user received income in a certain amount as a result of such a violation, then the right holder has the right to demand compensation, along with other losses and lost profits, in an amount not less than the income received by the violator. From the analysis of the judicial practice widely presented in this article, it follows that the most common way to protect violated exclusive rights to images of fictional characters is to claim monetary compensation, which is a borrowing from the Anglo-American legal order with its institution of statutory damages. The article analyzes the judicial practice related to the application of this sanction, notes its main shortcomings and concludes that the explanations of the Supreme Court of the Russian Federation in this part are rather superficial, not presented systematically and contradict the doctrinal provisions of the science of civil law. The author concludes that, to eliminate this shortcoming and to implement the principles of justice, equality of participants in civil relations, it is necessary to exclude the lower threshold of compensation from these norms.

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