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Can you sell an Oscar?

08 February 2019. Published by Lucy Baughan, Trainee Solicitor

An Academy Award (an Oscar) is one of the most prestigious accolades which a person in the film industry can receive. The awards symbolise tradition, exceptional quality and exclusiveness. Leaving the film reviews to the Academy itself, we focus on what is behind the Oscars brand: what the brand stands for and the steps the Academy has taken to protect the brand's integrity.

The history

The first Academy Awards ceremony was held in 1929 at the Hotel Roosevelt in Hollywood. This year, the Academy will host its 91st ceremony. Indeed, the Awards are nearly as old as the US film industry itself and this has led to the Awards becoming almost synonymous with it. Over the years, many Hollywood legends have won Academy Awards, including Audrey Hepburn, Elizabeth Taylor and Marlon Brando. The Awards are long-established, which contributes to the fact that the Oscars are seen as traditional and prestigious. However, there is a downside to this aspect of the Oscars brand. The Awards have been criticised as being old-fashioned and not reflective of modern values. For example, many people feel that there is not enough racial diversity among groups of award nominees. Another criticism relates to gender equality which led, in 2018, to many award attendees wearing a 'Time's Up' pin to highlight the need for modernisation of the awards and the film industry more generally.

The statuette

The statuette is symbolic of the Oscars and is instantly recognisable. One of the ways the Academy has prevented the dilution of its brand is through restricting the sale of award statuettes. Since 1951, every award winner has been required to sign an agreement giving the Academy a right of first refusal. A prohibition on the sale of the statuettes also forms part of the Academy's bylaw. Accordingly, if ever a person were to offer their statuette on the open market, they must first offer it to the Academy for a nominal price, which used to be $10 but has more recently been reduced to $1. The Academy has been scrupulous to enforce its right to the statuettes. In 2015, a Los Angeles superior court judge prevented a winner's relative from selling their statuette and upheld the Academy's bylaw. Even though the award had originally been won eight years before the Academy introduced its bylaw, it was found that the bylaw still applied because the winner had retained their membership of the Academy. Ultimately, by making the statuettes harder to get hold of, the Academy protects the rarity of the statues and therefore the association that they are exceptional, important and unique, like the accolades they represent.

The Academy protects the copyright to the statuettes with equal rigour. Most notably, the Academy sued to prevent party rentals of 8-foot faux Oscar statuettes and it took legal action against a chocolatier for making an Oscar-shaped chocolate. In 1991, the US 9th Circuit Court of Appeal ruled that the statuette was not part of the public domain and was protected under federal copyright laws, stating: "We conclude that the Academy's sleek, muscular gold statuette known as 'Oscar', which is recognized [sic] worldwide as a distinctive symbol of outstanding achievement in film ... is entitled to protection". By enforcing its copyright, the Academy is more able to control public perception of the Awards to ensure that they are held in high esteem.

The name

Nobody knows why the Academy Awards began to be called the Oscars. One theory is that Bette Davis, who was a president of the Academy, named the statuette after her first husband. Alternatively, Margaret Herrick, who was the Academy's Executive Secretary, allegedly stated in 1931 that the statuette reminded her of her 'Uncle Oscar' and the name stuck. Despite its unclear origins, the name is memorable and unique. As such, the name has been afforded protection against its use outside of the Academy. For example, the Academy sued the website “Oscarwatch,” in 2007 for trademark infringement. Similarly, a lawsuit was brought against an Italian TV station which tried to broadcast its own “Wine Oscars,” “TV Oscars,” “Fashion Oscars” and “Theater Oscars [sic]". The message from the Academy was clear: no imitations allowed.

By protecting the use of the name, the Academy has ensured that the word 'Oscars' is associated with the Academy Awards only and that no one else can free ride on the back of publicity surrounding the awards and thereby limit the effectiveness of the Academy's own publicity.

The whole picture

The Oscars' brand is multifaceted and involves the interplay of the Award's history, its symbolic statuette and its unique yet familiar name, among other things. Above all, comparing the Oscars to other awards ceremonies, its brand stands for exclusivity, tradition and prestige (and that's something not even Seth McFarlane could change after his questionable 2013 sing-song).