Wednesday, July 29, 2009

Clown Law: No Laughing Matter :-}

Dear Rich (and Staff): Karla is a wannabe comedienne who's developed "Karla Klown," a unique and highly recognizable costume/mime act. To try it out, she goes to Times Square where she's videotaped by both tourists and a TV reporter wandering by. People laugh hysterically when they see Karla's persona on TV and in YouTube videos but they have no idea who they're looking at. So someone decides to manufacture thousands of T-shirts bearing her likeness. What should Karla do? How long would it take to trademark the "Karla Klown" persona and would it be worth it? Once "Karla Klown" appears on stage or television, is Karla granted automatic control of the commercial use of her likeness by virtue of established public exposure?  The short answers to Karla's question are: (1) if Karla has been on television and achieved some notoriety for her appearances she may be able to prevent others from copying her claiming unfair competition and violation of her right of publicity; (2) Karla can't register her persona as a trademark but she can register her name and logo (for example, her image in makeup) for sale on goods such as t-shirts. The process costs approximately $300 per class of goods or services and takes about nine months to a year. (You can learn more about trademark registration here); and (3) the point at which Karla obtains a right of publicity for the exploitation of her persona depends on several factors, described below. 
The Other Carla
Before we leave Klown-land for Legal-land, is Karla aware of Carla the Clown (aka Carla the Clown of Love). Unless Carla and Karla are the same -- and the Dear Rich staff assumes they're not -- then the two clowns may be headed for a celebrity clown smackdown. The rights to the name trademark (soundalikes matter) will go to the first person to offer clown services in the geographic region (the name does not yet appear to be federally registered). . Some clowns have not been afraid to assert trademark rights but Karla may want to consult a lawyer before proceeding.
A Clown's Publicity Rights
Whether it's Krusty, Bozo, or Weary Willie, one of the key factors in asserting a right of publicity is to popularize that clown so that it is "identifiable" by the public.  When a performer's persona is embodied in a specific role, make-up, or costume, the question is not whether the performer is identifiable under the make-up, but whether the performer and the role are inseparable. For example, in a 1994 case, a court ruled that Spanky McFarland's character from the Our Gang comedies was so closely identifiable with him that it was inseparable from the actor's own public image and on that basis his estate could proceed with a right of publicity claim. So if Karla is "inextricably identified" with a specific performer, then Karla has secured a right of publicity. If not, then .....