Tuesday, August 4, 2009

Impersonating and Disclaiming Licensed Characters

Dear Rich: I read your entry about impersonating licensed characters at parties and have a question. Is it the use of the costume or the use of the name or the combination of both that is the actual infringement? For instance, if a company publicly disclaimed any connection with the actual character, its owners, etc. and advertised by a name that wasn't copyrighted, is that infringement? If so, what if the company coordinates other services and threw in the look-a-like appearance for free? I ask because there are a lot of celebrity look-a-likes for hire from small and large talent organizations and want to know how they get around actually infringing when they charge for this service. Some basics: a character name cannot be protected under copyright law (unless in conjunction with other character elements); a character name can be protected under trademark law. 
The Thing About Disclaimers
Your plan to disclaim any connection with the actual character seems unworkable. First, disclaimers -- where someone attempts to disavow legal responsibility -- rarely provide a shield unless they are sufficiently prominent, carefully worded, and are in close proximity to the thing you're trying to disclaim. In some cases they create more confusion and in other cases they serve as an acknowledgement that you knew you were confusing consumers. Second, there is the practical application: for example, do you show up at the birthday party and tell all the kids that you're not really affiliated with the Harry Potter franchise? The Dear Rich Staff is not sure how that would go over -- probably something like this. In any case, offering the lookalike services for free would still be an infringement. 
How Do Others Get Away With It?
Some people manage to get away with infringing activity usually by staying so low on the radar that the copyright owner isn't aware of them, or if the copyright owner is aware of them, the owner  (a) doesn't consider them big enough fish to fry, or (b) doesn't have the resources to pursue everyone. (Photo shows the Dear Rich staff with one of our favorite licensed characters, the lovely Strawberry Shortcake).

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