Trademark and copyright trick or treat
Halloween costumes should be fun. Yet as I’m searching the Internet for ideas my lawyer antenna have picked up that a costume that resembling the character “Sponge Bob,” is called “Squishy Guy” and that some sites feature a disclaimer that says there costumes don’t intend to infringe anyone’s copyright. Intend? Really now, such mumbo jumbo is decidedly not fun.
When it comes to cartoon, movie, TV and book characters, the copyright associated with them belongs to who ever created them. Some of those characters could also have registered trademarks associated with them.
Reputable costume companies obtain a license from the trademark or copyright holder for permission to use the characters’ likeness in their products. If you’re wearing one of those costumes on Halloween you’re legal. However if you make your own costume in the image of one of these famous characters you’re technically infringing their intellectual property. (If you’re an entrepreneur and want to hear more about how to protect your intellectual property, listen to my recent interview on MSNBC here.)
As a business and an intellectual property holder it’s important to protect and police your property. Some companies are more aggressive about it than others. Last year, for example, Warner Brothers put the kibosh on someone planning a Harry Potter costume party (read Harry Potter and the Chamber of Lawyers) at their underground restaurant.
Before you conclude that lawyers are taking the fun out of everything, let me also share with you the story about Times Square Elmo. Someone dressed up as the famous Sesame Street character has reportedly been roaming New York’s Times Square and hustling tourists to pose for pictures. He’s been so insistent that he’s actually been scaring some of them. That portrayal is in total contrast to the family friendly image shown on TV and no doubt a cause of concern for Sesame Street. No one, including Elmo, wants their reputation tarnished.
The “fair use” doctrine can sometimes be used to defend against a trademark or copyright claim. But, fair use is not a license to steal and what’s fair use to one person is infringement to another. What makes the fair use doctrine so tricky is that a particular use of intellectual property is not considered fair use until a judge says it is. And therein lies the trick or treat of copyrights and trademarks.
Happy Halloween!
Hanna Hasl-Kelchner is a business attorney, author and speaker who coaches business people who want to control their business legal risks and avoid lawsuits. She is the author of The Business Guide to Legal Literacy: What Every Manager Should Know About the Law and forthcoming How to Turn Your Business into a Litigator’s Chew Toy: Taking the Bite Out of Legal Liability. Follow Hanna on Twitter @nononsenselawyr.
