July 27, 2006
Send in the Clowns' (Lawyers)
By Eric Goldman
In response to parental demands, some clowns wear (without permission) costumes that imitate Barney the dinosaur, Bob the Builder, Thomas the Tank Engine, Clifford the Big Red Dog and other cartoon characters as part of their birthday party packages. The owners of those brands don't like it, so they sent nasty C&Ds demanding, among other things, immediate cessation, possession of the imitative costumes and a $100,000 settlement fee.
I don't know how lucrative the clowning business is, but I suspect that many clowns will not make a total of $100,000 over the course of their entire clowning career. I understand why the brand owners don't want people running around portraying their characters--especially clowns, who can be downright scary (e.g,, see this photo from the SJ Mercury News article)--because the clown's behavior can shape the kids' perception of the character. Plus, it's very possible that the law is squarely on the brand owner's side. However, surely there has to be a better solution. Maybe the brand owners are missing a good market opportunity?
In any case, the clowns may not be rolling over. A local lawyer, James McManis, has stepped up and may offer to defend the clowns pro bono (or, is that pro bozo?). Word is that instead of sending a written response to the C&Ds, he's planning to respond with some banana cream pies... (just kidding).
UPDATE: Now comedians are getting in the act (HT: EFF)
So everyone agrees that's ok for Barney to kill the good clowns?
The ones that brought Joy to paties with a "perk" appearance. The ones that encouraged the good things that "Barney" stood for? The one's who probably brought great publicity to that purple dinasaur?
Posted by: JANICE GRIFFIN at August 18, 2006 11:45 AM
What about INDUCED INFRINGEMENT? By creating a market for the infringement, everyone who throws a party is guilty of inducing the infrigment. Remember the Napster/ Grokster cases.
Posted by: Marv at September 2, 2006 10:06 AM