trademark – The Animation Anomaly

Scrat? SQRAT? Clearing up Some Confusion Surrounding the Lawsuits over the Ice Age Character

This week, ‘SQRAT’ creator Ivy ‘Supersonic’ Silberstein celebrated the postscript of over a decade of litigation against Blue Sky Studios/FOX (subsequently Disney). A lot of articles (and there are quite a few) comment that Disney can no longer use the character ‘Scrat’ or create any more films featuring him. Such an assertion isn’t entirely correct and once again highlights the muddy waters that lie between copyright and trademarks. Read on to find out why. …

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Those Frozen Posters and the Curse of The Modern Blockbuster

Analysis / Charles Kenny

A few weeks back, some images escaped onto the internet purporting to be for the next film in the Disney cannon, Frozen. They were quickly disavowed but the company nonetheless made an effort to rescind the impossible from the public’s mind. Here are said Frozen posters for informative purposes:

Disney_Frozen Poster A

Disney_Frozen Poster B

Disney_Frozen Poster C

The entire saga raised a number of questions but the true answers to them are rather straightforward.

Why Were They Disavowed?

The posters were disavowed for the simple reason that they are unofficial. While the posters do exhibit traits previously linked to the film (such as the title design), as a whole, they are not officially sanctioned by the Disney company. The studio is therefore obliged to distance itself from them, but there’s is more to it than that.

Poster trademarks is something that’s been talked about here on the blog before, and with these posters, there is very high possibility for confusion among the public. This is especially so given that the posters feature two characters that could easily be thought to be from the film. Trademark law requires holders to defend or face losing them. In that respect, Disney cannot simply let them slide because it could underpin future litigation.

Why Were They Even Released Then?

That, we don’t know. Cine 1 is based in Argentina, and we can only speculate wildly how they a) got the poster designs at all and b) would post them for any reason besides attracting publicity for themselves. Either way, it’s a fishy background to the entire affair but does not dilute the fact that it got a lot of people talking about the film.

So Where Does The Curse of the Blockbuster Come Into All This?

Where the curse of the blockbuster comes into this is that Disney were also duty bound to stifle the public’s interest in the film at this point in time. Why? Quite simply, they’re not finished selling the current one yet.

Yes, Wreck-It-Ralph comes out on DVD in March and as successful as that film was, it doesn’t do the Walt Disney Company much good to start flogging the new one before they’re done with the old one.

The curse of the modern blockbuster is that it makes money in precisely defined, extremely short periods of time. They have a few weeks at the box office before being pushed out on home media a few months later. The former brings in some money, but the real dough is (and has been for many years) in the latter. Disney simply cannot, through sheer necessity, ignore this period.

As a result, it will continue to devote any and all resources to Wreck-It-Ralph in the coming weeks. A distraction such as the posters above represents a significant problem with that strategy. It thrusts into the minds of the public who are constantly demanding new things and serve as a shocking reminder that yes, Wreck-It-Ralph is a done and dusted film while Frozen is so new and sparkly, we haven’t even seen any animation yet.

This bodes poorly for Disney, so they swing into crisis mode and attempt to stop it while they can. That’s not a bad thing, but it does reinforce the fact that studios like to dictate the publicity for their films despite the fact that the internet is an unwieldy beast that eats such control for breakfast, lunch and dinner. In the case of Frozen, the internet is clearly very hungry

The Alternative?

Back in December, we were given a single, concept sketch in an official capacity but then, nothing. Why do it then if there was nothing to follow? Disney may have been better off waiting until after Christmas before beginning to periodically (and predictably) releasing stuff. Independent animator Elliot Cowan is doing precisely that on his twitter feed; posting artwork from his feature film on a regular basis as he completes it. Disney could have handled this better; here’s hoping it’s a once-off event.
Just when should a studio start releasing artwork? Let us know with a comment!

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My Little Pony Trademark Dispute Shocker

5 Comments / Animation / Charles Kenny

The latest incarnation of My Little Pony has been worthy of plenty of discussion since its debut. The quality is excellent, the artists behind it are superb and its fans are devoted at a level most marketers can only fantasize about. Thankfully, the network that broadcasts the show, The Hub, has been smart enough to realise this and have allowed the fan community to grow freely, sometimes offering a little fertiliser of their own to give it a helping hand. I’ve discussed the whole phenomenon numerous times too, praising the progressive approach shown by the network to the entire affair.

However, a dark cloud has begun to cast its shadow over Equestria. I was expecting to discuss just one example, but this morning a second, and much more vicious example of a My Little Pony trademark dispute came to light. Both concern fans and both concern, not the Hub, but its parent company, Hasbro.

The Game

Via: Equestria Gaming

The first example to come to light (via Techdirt) is the fan-made online game MLP: Online. It was an entirely independent exercise and the developers apparently spent over a year and a half creating it before releasing the first episode just there in October.

Unfortunately, all the effort appears to have been in vain as Hasbro’s lawyers pounced on the unofficial game, going after it for both copyright and trademark infringement:

Shortly after that–exactly 4 weeks prior to now–we received a complaint about copyright and trademark infringement. We initially dismissed this it was most likely submitted by some trolls, as they could be submitted anonymously by anyone through our CDN. However, we continued to look into it, and by the following Monday, found it to be very real.

The developers admit that they weren’t exactly in the clear:

Hasbro is not to be blamed here. As per U.S. Trademark law, as soon as an infringement comes to light, they are obligated to defend the trademark, or they will lose it. They had no choice in the matter, regardless of what they thought of the project or how it benefited them.

However it appears that Hasbro was having none of it, even though there was a willingness on the developer’s side to work with them:

The matter was quite strict: there was little that we could do to work around it. We removed the download link and development was suspended. Discussions continued through the month, but it came down to one fact: MLP:Online had come to an end.

Now there are plenty of official MLP games out there, but the real issue here is whether or not they cater to the fans. A cursory glance of the Hasbro website raises questions about whether it caters to the brony crowd (hint: not if you’re over 10 or a boy). So it would seem natural that someone somewhere would create a game that does cater to the older crowd. MLP: Online appeared to fit that bill. Sadly, Hasbro, while legally right to defend their trademarks, chose the ‘nuclear’ option that will do nothing to foster the fan community.

The Plush Artist

Via: Tomopop

The other, and far more intriguing story, popped up today and concerns Sherry Bourlan. Sherry is a MLP fan as well as an expert at creating plush toys (check out this very thorough post featuring her recent appearance at the Silly Filly Con in Kansas City). Her’s are not the cheapo kind though, they are expertly crafted and sold for a hefty price (this one sold for over $1,300 and has surely risen in value since). Ms. Bourlan was served with a notice of trademark infringement for selling her replica ponies through eBay with which she promptly complied (her store is empty at the time of writing)

What makes this case fascinating is that it is purely a trademark case (no copyright is involved) and because it centers around the concept of trademark known as ‘dilution‘, where an unofficial product may threaten an official product or cause confusion in the mind of the consumer.

In this instance, although Bourlan operated independently, there doesn’t appear to be any real dilution of a competing Hasbro product or even the My Little Pony trademark. Her products were of stunningly high quality and in any case, Hasbro doesn’t even make a competing plush toy!

So are they right to send a cease and desist? Legally, yes, but on the shooting-yourself-in-the-foot scale, this scores s blunderbuss. The company could so easily have come to an agreement with Bourlan for either a small or negligible -cost license and allow her to continue making her fantastic plushes. The My Little Pony brand is hardly being harmed by these stunning creations although they do show up Hasbro’s shortcomings as a brand; they could never hope to charge that much for a plush.

The Moral

The moral of both stories is that large corporations can be incredibly short-sighted when it comes to the little people who actually support them. As noted at the top, the actual studio and network (The Hub) has nothing to do with both cases, a not entirely surprising state of affairs given their known stance on the show’s fans.

The parent corporation, Hasbro, on the other hand, sees things in a different light; towing the line of many similar behemoths by simply assuming that any unofficial activity is bad activity that needs to be put down. Little do they know that they are only hurting themselves. Especially so with the plushes. Hasbro doesn’t target adults but Ms. Bourlan clearly does. It’s a market they have actively neglected and are highly unlikely to get into anytime soon, so there’s no skin off their nose at the end of the day. The game is a similar matter and by actively stating that they are ignoring older fans (who have money!), the company is only fooling themselves.

Personally, if I were head of Hasbro, I would be taking a close look at the activity of my legal affairs department and whether or not they are justifying their activities. Defending trademarks is one thing, but you do not need to annihilate to win. Heck, even Disney back in the day found it much more agreeable to get a license out of infringers than to shut them down. They won by coming into the legal fold and Disney won because he sold more products that paid royalties!

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Animation Case Highlights Distinction Between Copyright and Trademark

1 Comment / Animation / Charles Kenny

Back in September of this year, a case came to prominence in the UK whereby Disney threatened to sue independent studio, Brightspark over their strikingly familiar animated films. Take a look at the images below from the 1709 Blog (a really great copyright resource):

There’s plenty of similarity isn’t there? One might be tempted to think that there was some sort of copyright infringement going on. However this case is special because it throws up the devilishly tricky line that is the distinction between copyright and trademark.

You see, Brightspark didn’t simply knock out a film in a similar vein to Pixar’s Brave. Nope that would have been too difficult given the time constraints. Instead, they simply took one of their films that was already made, and being sold even, called ‘A Fairy Tale Christmas’ and re-branded it as ‘Braver’. This wasn’t the first time they had pulled such a stunt either. ‘Tangled Up’ was previously released as ‘Britannica’s Fairy Tales from Around the World’.

So what exactly did Disney sue for? Can you guess?

If you said copyright infringement, you’d be right. if you said trademarks, you’d also be right. Huh? I hear you say, aren’t they both mutually exclusive? Well yes, they are. However in this case, Brightspark made the critical mistake of trying to hit two artistic birds with one stone.

Copyright covers artistic and creative works. Insofar as films are concerned, the title cannot be copyrighted. It can, however, be trademarked. Brightspark went one further though and made covers that also bore a bit more than a passing similarity to their more famous inspiration.

According to Wikipedia, a trademark “is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.” So in the context of Disney’s films, the trademark would not only cover the film title itself but would also extend to the title design as well. Ever wonder why studios have a propensity to use custom typefaces for their titles? Now you know why; they get double protection.

With a fairly solid trademark case (dilution of brand, etc.), Disney also aimed for the jugular and sued for copyright infringement, most likely over the title design as well as the covers themselves.

Long story short, Brightspark lost the case and this week, was ordered to stop producing the offending titles and destroy any remaining stock.

Why is this case important? Well there are no shortage of small studios willing to feed off the success of a major film. Chop Kick Panda is probably the more blatant recent example but in that case, the studio made a solid effort to distinguish their product just enough to make it legally distinct. This included a similar, but different title and a wholly distinct cover design for the DVD, not to mention the story. At best, consumer ignorance would be to blame for any parent picking that film up, something the studio no doubt relies on for sales.

Brightspark simply tried their hand and strayed a bit too close to the chalk to get away clean for which they are now paying the price. It’s just yet another example of how one needs to be aware of the legal rules in the entertainment game.

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The Atlanta Braves Oppose Pixar’s ‘Brave’ Trademark Application

Animation, Pixar / Charles Kenny

Hilarious image shamelessly yoinked from Filmdrunk

I’m really not quite sure what to make of this. According to /film (who got it from Stitch Kingdom), the Atlanta Braves baseball team have filed an objection to Disney/Pixar’s use of the word “Brave” as a trademark for the upcoming film, Brave.

Trademark law make a distinction between singular and plural versions of a word, but that has not stopped the baseball team from claiming that:

that damages will occur as a result of Disney’s trademarks being approved as they have used the singular form before on merchandise and insist it is common for fans, media, et. al. to use the singular form when referring to a single player, whereas the pluralized form refers to the entire team.”

Long story short, they’re saying that by Disney trademarking ‘Brave’, poor Joe Public might get confused between a baseball player and a red-haired Scottish heroine who lives in the middle ages.

Yup, that sure is real confusing, especially as one is an actual, real-life team of people playing sports for money and the other is a fictional character who only exists within the film (and on related merchandise).

There’s no way this objection should fly although, as ever, “discussions are ongoing” between the two parties. So expect an “agreement” to come eventually.

Just what a waste of resources though and it doesn’t exactly put the Braves in a good light either, what with the pettiness of their claim and all.

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Apparently Lady Gaga Doesn’t Like Animation

Animation / Charles Kenny

Via: TBI

This just in, yesterday, The Hollywood Reporter among others posted that Lady Gaga has won an injunction against a parody creation from Mind Candy called Lady Goo Goo. The reason?

“Lady Gaga argued that the character would confuse consumers.” – AWN

There’s a couple of different aspects to this decision but all spell potential trouble for animators or studios so they are well worth being aware of.

Firstly, there’s the issue of confusion with the real Lady Gaga and secondly there’s the issue of parody works and whether or not they are legal. Before you carry on reading though, here’s a video of Lady Goo Goo herself:

http://www.youtube.com/watch?v=v53lmd5URQQ

Starting with the confusion, Gaga relied on trademark law and its reliance on the famed tests which essentially boil down to the “moron in a hurry” scenario. The court ruled that consumers and fans of Gaga would be susceptible to confusion between Gaga and Goo Goo and thus the latter should not be permitted .

Anyone with half a brain would conclude that this is a clear admission from Gaga that her fans are clearly idiots but as Mike Masnick at Techdirt put it:

Unfortunately, Lady Gaga doesn’t have a sense of humor about the situation and it appears that neither do the UK courts.

Michael Action Smith of Mind Candy puts it fairly bluntly:

“It’s pretty obvious that kids will be able to tell the difference between the two characters.” I can certainly tell the difference, but Lady Gaga and the courts couldn’t

The shame is that millions of kids fell in love with Lady Goo Goo’s debut single on YouTube and now won’t be able to enjoy her musical exploits. It was all done in the name of fun and we would have thought that Lady Gaga could have seen the humor behind this parody.

This leads us nicely into the second aspect of the ruling, which is that parody works are not strictly legal in the UK, where the lawsuit was filed.

The importance of this aspect? Well, in the US, parody works are considered legally distinct from the original material and as a result, do not require prior approval from the copyright holder. This is not the case in the UK, which has no laws regarding parody works. The result is that Gaga was legally able to sue over a parody featuring an animated baby and some Eurotrash music.

Why is this a concern for animators and studios? Because animation has relied on parody and making fun of things since almost the day it was invented! Imagine if all the classic Warner Bros. shorts couldn’t have parodied the political and entertainment figures of the day? Imagine if the Simpsons couldn’t send up films like Citizen Cane? Imagine if Weird Al Yankovic couldn’t release a video to go with his parody of a song? (Side note, Al had is own run-in with Lady Gaga but because he’s in the US, he could release his single anyway).

Our ability to create would be seriously hindered wouldn’t it? The world would be a much more serious place in the absence of all this comedy and poking of fun.

Animation has delighted in being one of the prime candidates when it comes to sources of parody. Nevertheless, this lawsuit simply proves that you have to be on your toes when it comes to this kind of thing, because as bad of a control freak as it makes Lady Gaga look (and all the increased attention the lawsuit has garnered as a result), it ultimately forces a studio to write off an investment it made and to swallow the costs of the project with no hope of getting them back.

Small studios and animators cannot be expected to be effective economic units if they face the prospects of lawsuits like this. There is no reason why Lady Goo Goo had to be yanked in the UK, the decision hurts everyone, including Gaga herself.

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Animators and The Law: When Will Mickey Mouse Enter the Public Domain?

9 Comments / Animation, Disney / Charles Kenny

This is the fourth and last in a series of posts that take a look at just some of the many legal aspects of the animation industry.

It’s a question that seems to lead plenty of people to this blog but the post they land on is not entirely relevant. So here, for all those people is the post they’ve been looking for.

When Will Mickey Mouse Enter the Public Domain?

The most important piece of recent legislation concerning our hero is the Sonny Bono Copyright Term Extension Act, which basically extended the period of time for which creative works are covered by copyright. The interesting thing about this act is that it has a nickname. Care to guess what it is?

How about the “Mickey Mouse Protection Act”.

Yes indeedy, but first, it’s important that we define just how Mickey is covered and in order to do that, we must first define just exactly what “Mickey” is.

Mickey Mouse and similar characters inhabit the gray area where copyright and trademarks collide. A quick and dirty explanation is as follows:

Mickey Mouse’s films are covered by copyright
Mickey Mouse’s design/looks are covered by copyright
Mickey Mouse as a cartoon salesman is covered by trademarks.

Can’t tell the difference? Not to worry, that’s the purpose of this post.

Mickey Mouse is a creation, and as such his design is covered by copyright. His films are also subject to copyright in that they are expressions of the creation that is Mickey Mouse.

The distinction comes when Mickey Mouse is used as a tool to sell things. In that capacity, he is a trademark that is for the exclusive use of the Walt Disney company and anyone it licenses the character to.

Confused? Don’t worry, it will all be clear in a moment. 🙂

Why the distinction? Well, a trademark is sometimes not a creation, it can, in fact, have existed for hundreds of years. What a trademark does is extend to the owner the exclusive right to use the trademark for the business purpose that they applied for the trademark for. Sounds tricky doesn’t it?

It isn’t though. It basically means that someone setting themselves up as, say a record label called Apple is granted the privilege of being allowed to be the only record company called Apple. This is to avoid confusion in the mind of the consumer, which could result in “brand dilution”.

It does not prevent someone else from calling their company Apple and selling, say, computers. Why? Because selling records and selling computers are two completely separate market sectors that are unlikely to lead to confusion among consumers*.

Mickey Mouse is a trademark of the Walt Disney Company insofar that he acts as a salesman, mascot and calling card for the firm. Such uses are covered under trademark because they can be (and are) used by consumers to identify a particular company.

So now that we’ve established what copyright and trademarks are and the main difference between them, why are they important in the case of Mickey Mouse?

The reason is time.

You see, copyrights have term limits, trademarks do not (as long as they are actively enforced). Mickey Mouse can remain a trademark forever but his films will at some point enter into the public domain.

However, that remains to be seen:

Thanks to the lobbying muscle of Disney and its allies, U.S. copyright protection has protruded further and further into the future, from the 14 years of the first copyright law in 1790 to the 120 years of today — far beyond the lifetime of any artist.

That quote is taken from a superb article by Charles Kenny. No, not I, but a senior fellow at the Center for Global Development in Washington DC who I coincidentally happen to share the same name with. The full article is well worth a read to see how such actions by Disney and other entertainment giants are affecting the developing world in detrimental ways.

If Mickey Mouse’s films ever do enter (or are acknowledged as entering) the public domain, it will allow people to view them, edit them, remix them and so forth, it will not however, allow anyone to sell any merchandise branded as being “Mickey Mouse” merchandise. Why? Because unless they are officially sanctioned by the Walt Disney Company, they will be in breach of trademark law.

So, to answer the original question:

Mickey Mouse’s films will enter the public domain when their copyright terms expire. As of right now, that is 2020 for Steamboat Willie (barring further term extensions). As long as Disney maintains their trademark over the character, he will remain for their exclusive use indefinitely.

*As you may well be aware, when two market sectors do collide, a lawsuit results, as happened when Apple Computer launched iTunes, a breach of an agreement with Apple Corps.

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You Know You’re Successful When Someone Copies Your Idea

Animation, Disney / Charles Kenny

Here’s an old one for you.

No, it’s certainly not Mickey Mouse and if you watch the whole thing, you’ll see ‘Minnie’ engaging in some things that Walt would never have allowed get off the animator’s table!

From what I can tell (thanks to this post over on Classic Cartoons), it’s by the Van Beuren Studios and features the characters of Milton and Rita Mouse.

Released in 1930 at just about the time that Mickey was gaining traction with audiences, Circus Capers makes it seem pretty clear as to how Milton came about.

What’s interesting though is that someone was copying Walt at all. I’m willing to bet he found it amusing on some level, that as someone who was derided Hollywood for making animated films and who ran up against con-men everywhere he went, was actually being copied from by someone else!

Copying has pervaded the Hollywood ecosystem pretty much since its inception. It goes for other forms of creation too, books, paintings, songs, you name it, if you become a success, people will attempt to emulate you. Of course, the real money can’t be found in copying someone, only in creating something new that people like.

Is copying all bad though? Nah, I don’t think so. I’m willing to wager that the blatant knock-offs only served to increase the popularity of Mickey and Minnie. Walt was right to sue in this case though as Milton and Rita are blatant carbon copies. He won the case, most likely as a violation of trademark no copyright.You can be sure though, that whenever a major studio decides to copy an idea, they’ll have an army of lawyers pour over it to make sure it can stand up in court as an original idea.

In the end, I think Milton and Rita did Mickey and Minnie no harm at all. By that stage, Disney had enough experience as a studio to out-create others and Walt’s eye for quality ensured that their films would resonate most with audiences around the world.

I, on the other hand, continue to await the day when someone copies me. 🙂

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