The Teletubbies, aesthetic functionality and the section 51 paradox: on the interplay of copyright, design and trademark principles in character merchandising

This article critically evaluates the interplay between trademark and copyright rules in regulating rights over pictorial or sculptural depictions of invented characters in the UK. Although trade mark law offers some protection to artistic depictions of fictional characters in merchandising, the extent to which copyright is available as an alternative cause of action remains weakly articulated in the jurisprudence. This article highlights, in particular, an internal paradox in s.51 of the CDPA , which generates considerable uncertainty in defining the applicability of copyright protection for manufactured articles bearing features of fictional characters. In reforming the approach to s.51 , this article argues that intellectual property law in the UK is in need of a more internally consistent approach to the "functionality" doctrine, which is necessary to promote fair competition in the manufacturing and design sectors, particularly in the wake of emerging technologies such as 3D printing and artificial intelligence.