Who Owns Little Cheburashka?
By Alexander Bratersky
Special to The St. Petersburg Times
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http://chebur.polyn.kiae.su
Cheburashka and his pal Crocodile Gena in a still from one of the original cartoons.
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MOSCOW - Cheburashka, the Soviet-era book and cartoon character who could be considered Russia's answer to Mickey Mouse, has unexpectedly and somewhat belatedly hit the big time in Japan - but any celebrations have been marred by a legal battle over the proceeds. Eduard Uspensky, author of the 1966 book that inspired the animated films, is seeking to sue U.S.-based distributors Films by JOve over use of the Cheburashka name and image in merchandising in Japan. Meanwhile, animation giant Soyuzmultfilm wants to annul the contract under which it sold Films by JOve film distribution and merchandising rights for 30 years. While Cheburashka has been struggling on home turf to compete with foreign newcomers like Pokemon and Teletubbies, the cute, furry creature managed to become a hit in Japan last year after Japanese film distributors bought screening rights. Japanese audiences were won over in spite of - or perhaps because of - the 1969 film's use of hand-made puppets, an endearingly old-fashioned touch compared to the high-tech animation techniques of today. The ''small animal, unknown to science," who is found in a box of oranges and then meets the lonely and intelligent Crocodile Gena, became an instant celebrity in one of the most sophisticated markets of the animation world. T-shirts, toys, note pads and other merchandise featuring Cheburashka and Crocodile Gena have since been selling like hot cakes both in Japanese cinemas and on the www.cheb.tv Internet site. Kaori Tanabe, a spokesperson for Japan-based Petit Grand Publishing Inc., which deals with Cheburashka merchandising in Japan, said in an interview that Cheburashka films had been shown in 15 cinema across the country, with one theater alone taking as much as 37,000,000 yen or about $280,000. Merchandise is sold at the screenings, Tanabe said, with about 30,000 Cheburashka books and 20,000 stuffed toys sold so far. Tanabe added that five more theaters are expected to show Che bu rash ka films this year. Cheburashka first achieved fame in the Soviet Union thanks to Eduard Uspensky's 1966 book "Krokodil Gena i Ego Druzya" or "Crocodile Gena and his Friends." "Thank God Cheburashka became popular in Japan," Uspensky said in an interview. "Cheburashka can become a friend of children in every country, but the bad thing is that he is marketed by people who want to steal money, thinking they are beyond the reach of Russian retribution." Uspensky's grievances are with former Soviet actor Oleg Vidov and his wife, American journalist Joan Borsten, who are the owners of the Los Angeles-based Films by JOve production and distribution company. In 1992, the company entered into a licensing agreement with the old Soviet animation giant Soyuzmultfilm, which gave Films by JOve distribution rights for all countries except former Soviet states. The contract covered 1,200 animated films produced between 1936 and 1991, including the four Cheburashka films, which were made in 1969 and 1970. According to Borsten, the contract included the payment of more than $500,000 in acquisition fees, advance of legal fees to protect the studio copyright around the world amounting to $400,000 to date, and payment of 39.5 percent of profits. She said the 30-year agreement covers merchandising rights. Soyuzmultfilm's new management is trying to annul the contract. "This contract is an extortionate one that has destroyed the national heritage," said Soyuzmultfilm's deputy director Vyacheslav Shelobreyev, adding that the contract, signed by ousted former director Sergei Skulyabin, has been the subject of numerous court appeals by the studio's new management. "We know that we have an absolute right to own the collection," Shelobreyev said. Uspensky, who agrees with Soyuzmultfilm's claims, is however more concerned about the merchandising rights. He said that his own company, OOO Cheburashka, registered the word "Cheburashka" as the character's name and his image with state patenting agency Rospatent in 1997, and that his company owns rights for all of his books' characters. Uspensky's other claim is that Cheburashka books were illegally printed in Japan. "[Vidov] has rights for the film - which, while semi-legal, is a fact," Uspensky said. "But when he offered me a percentage from merchandising, I said that I hold all rights for Cheburashka. My lawyers sent him a copy of my contract with the studio, which doesn't say anything about the transmission of rights." The image that Uspensky patented with the Cheburashka name is reminiscent of an image created by animation artist Leonid Shvartsman. Shvartsman, 80, is a former leading Soyuzmultfilm artist who worked with Uspensky on a Cheburashka film. The film image of Cheburashka created by Shvartsman became the most widely recognized one, and it differs from the one that appeared in Uspensky's first book in 1966 and those in books that continue to be published in Russia. Some contemporary incarnations even have Cheburashka in a skirt. In an interview, Shvartsman said no one can copy his style, not even Uspensky. "There is a writer called Uspensky, but an artist called Uspensky does not exist," said Shvartsman. According to Russian laws on trademark and patents, Shvartsman cannot claim any money for the use of the image, since he created it when he was on staff at the studio, which owns all of his rights. His only right is to have his name published together with a reproduced image. Borsten, however, said that her company included Shvartsman in the Japanese merchandising contract. "We didn't have to do this, but we felt it was morally right," she said. Borsten said her company's copyright lawyer told her that Russian trademarks are good for Russia only. "He said in his experience Uspensky's claims would not hold up in Western countries or Japan because it is clear that he did not create the image of Che burashka, at least not the one in the movie, and that he cannot interfere with our using the name of the movie and the name of the character in relation to exploitation of the movie," Bors ten said in an email interview. Vidov said the word "Cheburashka" is not Uspensky's creation, since it originally appeared in the Russian language dictionary by prominent scholar Vladimir Dal in 1863. The dictionary says "Cheburashka" is "a children's doll that wakes up when pushed." Yevgeny Arievich, a patent specialist and international partner with Baker & McKenzie, said that he "feels doubts" about Uspensky's legal rights to patent Cheburashka's image as a trade mark. "A book description is not enough to claim rights, since according to this description you can draw a character in five different styles," Arievich said. Uspensky has already won several cases against foreign and local companies that used his characters without his permission. He previously filed a suit against the Krasny Oktyabr chocolate maker, which had manufactured Cheburashka candies. Sergei Zatitsky, a head of Russia's Multimedia and Digital Networks Society (ROMS), which represents Uspensky's interests in Japan, said the company will sue the distributors for illegal use of intellectual property. Lawyers have been to Japan and prosecutors have been investigating the legality of use of Uspensky's Cheburashka trademarks. Uspensky is one of the founders of ROMS. "It is a very serious case," Zatitsky said. "Russia is accused of piracy and stealing, but this is a case in which our children's national treasure has been stolen."
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