Is it Legal to Create Balloon Versions of Popular Characters?
Copyright law is the body of laws that give authors exclusive rights to their creations for a limited time.
– Todd Neufeld
By Todd Neufeld
A quick look at recent video releases and various promotional material shows that many balloon artists are making balloon versions of everyone’s favorite characters. Disney characters, Looney Tunes, Pokemon – are all being twisted, sculpted, and transformed into latex. The practice is popular, but is it legal? Should balloon artists continue to make balloon versions of characters regularly seen on television?
This is a tricky question because it involves the interplay of various legal protections with many individual situations. As a balloon artist, you must understand the legal framework, and then make an informed decision on how you should act. Unfortunately, some artists have turned to the balloon mailing list for legal advice. Do not rely on an entertainer’s forum to answer your legal questions. You will get bad advice. Please find a good local intellectual property or media attorney who can address your specific needs. This article is a collection of my thoughts and my approach to creating balloon characters.
The Bottom Line
Creating a balloon version of a popular character probably constitutes both copyright and trademark infringement. It is copyright infringement because it is copying the expression of another without permission. It is trademark infringement because it is use of a registered mark without permission.
As balloon artists, we should be comfortable talking about copyrights and trademarks because they are an essential part of our world. Every time you create a new sculpture, you are eligible for copyright protection. Every time you interact with the public, you should be thinking about trademarks.
What is a Copyright?
Copyright law is the body of laws that give authors exclusive rights to their creations for a limited time. It protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture for the life of the author plus 70 years. The most important thing to remember is that copyright law protects the expression of an idea, not the idea itself. The purpose behind the law is to encourage creative expression by granting authors and their heirs the exclusive right to profit from their work for a limited time. That means more than just copying books. It means that nobody can reproduce, transform, perform, or display works without permission during the life of the copyright. After the copyright expires, the work enters the public domain and can be freely copied. My favorite application of public domain law is the Gutenberg Project promo.net/pg, which has made thousands of ebooks available online.
An intrusion on any of the rights granted to authors is called infringement. The penalties for copyright infringement vary with each situation. If your infringement is not making any money, then you might receive a nasty letter telling you to stop. You can, however, also be sued and forced to give the copyright owner all of your profits from the work. In some instances you may have to pay additional fees, which can be quite hefty. In addition, some types of copyright infringement are felonies, which means you go to jail!
The Unites States is a party to a number of international treaties (i.e. GATT and NAFTA). These treaties have set up a system of reciprocity between nations enabling copyright owners to pursue infringement claims across borders.
The internet is a valuable resource for information about copyright law. A good starting point is the U.S. Copyright Office www.loc.gov/copyright.
What is a Trademark?
A trademark is any word, name, symbol, or device used to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name. A service mark is identical to a trademark, but it identifies the source of a service instead of a product. The terms “trademark” and “mark” are used interchangeably for trademarks and servicemarks.
Anything that links a company to its products or services is a called a mark. Names, slogans, and logos are the most common. Examples are all around you: The golden arches is linked to McDonald’s, the phrase ‘just do it’ is linked to Nike, and the name ‘Starbucks’ is linked with the coffee shop giant. Marks are not just limited to names, slogans, and logos. The bright pink color used in insulation is also a mark (remember the Pink Panther in those commercials?). Even certain smells have been granted trademark protection. Anything that associates a company with a product/service is a likely candidate for a mark.
Not surprisingly, the Trademark Act www4.law.cornell.edu/uscode/15/ch22.html> governs most trademark law in the United States. The US Patent and Trademark Office www4.law.cornell.edu/uscode/15/ch22.html> handles the registration of trademarks. Most companies choose to register their marks with the government. This gives the company the legal recourse to stop anyone else from infringing on its mark and free-riding on its image.
Trademark infringement occurs when an individual or company uses someone else’s mark inappropriately. A classic example of trademark infringement occurs when there is a ‘likelihood of confusion’ about the origin of goods or services. For example, if my business card proclaimed ‘The Greatest Show On Earth,’ potential customers might think that I was affiliated with the famous circus. There would be confusion about the origin of the show, is it me or Feld Entertainment?
You have to have both legal and business savvy to deal with trademarks. You might be able to use a similar name, word, or slogan if you are in a different market. But if the owner of the mark is very famous, you won’t be able to touch it. A few years ago a hotel called itself McSleep. McDonalds took them to court. Even though the hotel company is in a different market, the court found they could not use the ‘Mc’ prefix because of the strength of McDonald’s name recognition. In my office I have products from three companies named Apple: a broken laptop from Apple Computer, a CD from Apple Records, and t-shirt from Apple T-shirts. They each share a name, but not a market. Therefore, nobody is confused. Compare that to the number of people calling themselves ‘The Balloon Man’ in our small entertainment market – now that’s confusion!
If you are using someone’s mark without permission you can be forced to stop. In some instances you will have to pay the owner any profit you derived from using the mark, and possibly other expenses as well.
The world of trademark law is more complicated and interesting that these few paragraphs can capture. If there is enough interest I will write a more in depth column. In the meantime you can surf the internet for more trademark law resources. I recommend starting with ‘Greg Guillots page www.ggmark.com.
Cartoon characters and the law
As you may have guessed by now, the popular cartoon characters on TV are protected by both copyright and trademark laws. First, because they are artistic works, they fall under the category of things-that-can-be-copyrighted. The copyright on the famous TV characters has not yet expired, so they are not in the public domain. Second, the cartoon characters instantly identify the company that makes them, so they are trademarks. Mickey Mouse is forever associated with Disney. The peacock is similarly associated with NBC Television. There are many obscure cartoon characters that are not marks, but they are still copyrighted.
The important thing to understand is that the Disney version of Donald Duck is what is protected. It is protected because Disney created it (copyright protection) and because it is identified in the market as a Disney product (trademark protection). If you create a completely original sailor duck that does not conjure up Donald or Disney then you have you not infringed on Disney’s rights.
Balloon characters and the law
This is my favorite topic. Lately there has been a flurry of discussion on this topic in the entertainer forum. Most recently, it was brought up by Mary Wrzesinski marywrz.balloonhq.com in the context of creating a balloon version of a University mascot. The robust thread touched on many of the points that I want to address. Thanks Mary!
Myth: Nobody cares about balloon artists so we are safe
Or, to quote the mailing list,
If it’s ever happened, I figure we’d “ALL” know by now.
This is partially correct — if it has ever happened some of us would know. I do know that several Orlando-based balloon twisters have been stopped from making Disney-style cartoon characters. They were not dragged into court. Rather, they were nicely asked to stop, and then promptly complied. One artist in particular had to remove a wonderful picture from his BalloonHQ portfolio before being able to show the site to clients. This tells us that the people who manage the intellectual property of the big media companies are aware of our community. Currently, however, we are not a threat to them. We are still a small community, and we do not have any legitimate “national stars” who get media attention for creating balloon characters. I like to think that community-based entertainers reinforce the branding of characters rather than harm them. After all, a balloon Mickey Mouse encourages the kids to buy more Disney products! This is probably why none of us have been sued yet. Avoid the temptation to think that Disney, and other companies, are oblivious to our community. Just be grateful that we have not crossed them yet.
Myth: It is not copyright infringement because it is a balloon
Or, as someone said,
Copyrighted material you need to change it by 10%, in order for there not to be a problem.
This is just plain wrong. There is no bright-line rule for copyrighted material. Clearly if you copy something exactly you are infringing. What is not generally understood is that transforming a work into something else is also not allowed. A copyright holder has the exclusive right to all “derivative works.” Congress defined a derivative work as “[A]ny other form in which a work may be recast, transformed, or adapted.” If you don’t believe me you can check the Copyright Code caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/1/sections/section_101.html> yourself.
This notion of derivative works is what we need to be concerned with. As balloon twisters we are essentially transforming a drawn or plush character into inflated latex. The fact that the copyright owner does not twist balloons is irrelevant. The fact that the owner is not losing money is likewise irrelevant. The fact that we are such a minimal market force is also irrelevant. We are still treading on their rights.
Take a moment to read about the legal troubles that our favorite sculptor, Jeff Koons www.balloonhq.com/highlights/koons, got into. Mr. Koons took a photograph of some cute puppies from a greeting card and used them as a model for sculptures. He was sued and lost. Would Mr. Koons have been sued if he made the sculptures out of latex instead? I bet if those balloon figures sold for $367,000 (like the puppies did) he would still have landed in court! A nice short summary of derivative works and Mr. Koons’ case is online www.artslaw.org/DERIV.HTM>. If you want to read the original case I will send it to you. Just ask.
There is a world of difference between inspiration and knock-off. It is okay if a cartoon character inspires you to make “cartooney” balloons. It is not okay if it inspires you to make a cartooney black mouse with a round face, white hands, red shorts, yellow buttons, that is a dead ringer for Mickey.
Generally, balloon twisters try to make their balloon characters as detailed and impressive as possible. Each added detail brings you closer to the original and closer to copyright infringement. If you try to twist a Mickey and it actually looks like Mickey then two things have occurred: You are a darn good twister and a darn good copyright infringer.
Myth: Some famous characters are in the public domain
Occasionally I hear twisters say that certain characters are ‘in the public domain’ so we can copy them. They are wrong. You do not have to place a copyright notice on a work in order to protect it. Therefore, even if I do not end this article with the words, “Copyright 2002 Todd A. Neufeld” you would still be forbidden to copy it without my permission. So if you have a video tape, poster, CD or hat with a character do not think that it is in the public domain because the copyright notation is missing. Understand that copyright protection attaches the moment the author finishes making the work. So as soon as I hit the ‘save’ button I have effectively ‘copyrighted’ this article, with or without the copyright notation.
The bottom line is that the popular cartoon characters have not expired yet. Mickey was supposed to expire next year, and Donald in 2009. However, Disney & Co. effectively lobbied Congress to extend the life of their lucrative characters. The result was the Sonny Bono Copyright Term Extension Act which adds an additional twenty years to the life of a copyright. That law is going to be examined by the Supreme Court this year, and I will be following the case very carefully. If you go back to the official copyright law you will see that Mickey Mouse and friends will live with Disney for 95 years:
Copyrights in Their Renewal Term at the Time of the Effective Date of the Sonny Bono Copyright Term Extension Act. – Any copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured.”
As you might imagine, this new law has many friends as well as many foes. I recommend that you read about it. Start with this nice AP article www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/commentary/ChiTrib10-17-98.html>. Then check out the ‘Opposing Copyright Extension’ www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/default.htm> web site that hosts it.
Please, do not be mislead into believing that your favorite Disney cartoons are in the public domain. If the Supreme Court overturns the Sono Bono act it will be on the front page of every newspaper. We can all celebrate it by hitting the streets and twisting our favorite Mickey knock-offs!
Myth: if they like you, you will not be sued
Also expressed as,
Knowing the kind of work you do it seems like they should be flattered.
If you stop and think about it, the more successful you are the less flattered the copyright owner will be. I do not want my TV stolen, even by a really talented cat burglar. I don’t care if the thief is hungry, poor, talented, or insane. I do not want to lose my TV. I don’t even want him sneaking into my house when I’m on vacation to watch it. I have the exclusive right to control who watches my TV, when they watch it, and how.
As a community entertainer you are below their radar, and not a threat to their income. However, if you are good enough to sell your sculptures for lots of money (like Jeff Koons), then you are good enough to be stopped.
Likewise, if you are good enough to come across their radar, then you are good enough to ask permission. Which brings me to the next point . . .
Truth: You can receive permission to twist famous characters
In Mary’s case, someone on the mailing list suggested she obtain permission to sculpt the University’s logo. She said,
Go to the school’s president
This suggestion puts you on the right track. Just like the legitimate hat and t-shirt makers you should get permission to sell your products. It is easy to prepare a licensing agreement but not always easy to get it signed by the proper entity. However, it can be done. I believe that Marvin Hardy received permission from the late Charles Schultz to make his classic Snoopy. Royal Sorell obtained permission from the wife of Theodor Suess Geisel to make his Cat-In-A-Hat. Walt Disney World does employ balloon artists and they have express permission to make balloon versions of Disney characters. Unfortunately, you and I do not.
If you want to act without trampling any rights find the right person and ask. I do not recommend bothering the University President or a CEO. Presidents do not deal with small licensing agreements. Find out which office handles the company’s image and media. You can probably find the proper office by clicking on a logo link from their web site or checking out the page with legalese from their site map. If you do have a personal relationship with the president or another important company official then use them as a reference when you approach the media office for permission.
Myth: A non-profit will not sue you, or, Logos do not matter
On the Entertainer Forum, someone felt that a University would not zealously protect their logo. The quote is:
They’re not a for-profit organization and Bucky isn’t their chief money maker
It does not matter that the school is a non-profit entity. It does not matter that your tax dollars help fund it. A non-profit corporation is a legal entity that can own, license, sue, and more. Universities take their logos VERY seriously. They make a lot of money from selling T-shirts and other licensed material. If you don’t believe me just walk into the campus bookstore on Parent’s Weekend and watch the merchandise move out the door.
Please do not think that your local University will ignore you.
The changing landscape of Trademark Law
As I pointed out above, all companies take their logos and protected images very seriously. After all, the marks are how their customers identify them. A conglomerate of companies went so far as to get Congress to extend the life of their works. (The ‘Sonny Bono Copyright Amendment’ discussed above). If the big companies care enough about their works to change the law, they care enough to send a couple of balloon artists cease-and-desist letters.
Here is the murky area: Instead of being accused of confusing customers, an artist can now be accused of merely using a mark without permission. With the Federal Trademark Dilution Act of 1995 the media companies no longer have to prove a likelihood of consumer confusion, only that their marks were used. Let me repeat that: Trademark owners no longer have to prove that we confused any of their consumers. Just using their trademark inappropriately is enough to violate their rights. That is a very low threshold. A good summary of the law can be found online here www.bitlaw.com/trademark/dilution.html>.
This revised version of the law was designed to target cyber-squatters. Those are the people who buy domain names of famous marks and try to sell it to the trademark owner. They are frequently sued. The new law only applies to ‘famous’ marks. What is famous? I don’t know, but I bet Mickey Mouse is one of them.
The Fair Use loophole
Now that you understand the law, I am going to touch on the convoluted exceptions. The most important is the notion of Fair Use. This is a part of copyright law that allows you use an author’s work without permission in limited circumstances. What are those circumstances? There is no bright-line rule, rather, Congress has established a balancing test. The factors to balance include (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the work used, and (4) the effect of the use on the market value of the original.
The first factor is the most important. The Supreme Court has said that copies made for commercial or profit-making purposes are presumptively unfair. [‘Heres the: case file, look at page 449.] They later elaborated in a famous case concerning President Nixon’s memoirs. They explained (on page 562 of the case) that the crux is ‘whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” That means if your use of the copyrighted work is more likely to be fair use if you are not making money. Well, that makes sense. Use of a work to teach, write a review, practice, or quote is generally acceptable.
Think about this in terms of your business as a balloon artist. It is not fair use to sculpt a Mickey Mouse balloon and sell it as a centerpiece decoration. It is probably fair use to sit in your living room and practice your balloon skills by copying Mickey Mouse. The first is definitely an exploitation of Mickey. Further, the guests seeing the Mickey centerpiece will probably think it is a licensed Disney product. The client might have even wavered between using a plush Mickey Mouse centerpiece or a balloon one. There is a good chance that the centerpiece both confuses customers and takes a sale away from Disney. Compare that to the second instance. The second use was in private and for artistic growth. You are not making any money in the second situation. Do you see the difference? Context matters.
The Parody Exception
Lately, balloon artists have begun calling their work ‘parodies.’ I am a big proponent of this, because a parody is one form of fair use. Do not think, however, that the label makes the difference – it is the context that counts. If you are accused of copyright/trademark infringement for your work, and you can prove that is a parody of the original, then you are home free!
So what is a parody?
The court in the Koons case said it best:
Parody or satire, as we understand it, is when one artist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new art work that makes ridiculous the style and expression of the original. Under our cases parody and satire are valued forms of criticism, encouraged because this sort of criticism itself fosters the creativity protected by the copyright law. 960 F.2d 301, 309 (1992).
It is difficult to give a formula for creating parodies. Generally, in a parody you can use more of the original work than in other fair use instances (such as a book review). But the audience must understand that there is an original and separate expression, attributable to a different artist. Therefore, the copied work must be publicly known or somehow acknowledged by the parodist in connection with the parody. Id at 310. Also, you can profit from a parody and it is still considered fair use.
Please realize that a parody is more than just a funny presentation. It should include social or political commentary. It should include criticism and ridicule of the original work. It should push the bounds of your audiences’ expectations. It should make them laugh and think. It should be the performance that they talk about over breakfast the next day. As stated by the Second Circuit Court of Appeals:
[I]n order to constitute the type of parody eligible for fair use protection, parody must do more than merely achieve comic effect. It must also make some critical comment or statement about the original work which reflects the original perspective of the parodist–thereby giving the parody social value beyond its entertainment function. Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252, 253 (2d Cir. 1980).
Once again, context matters. A balloon cartoon character that copies the original and is sold in your gift shop is not a parody, no matter what label you stick on it. However, that same balloon sculpture, created as you deliver a witty, insightful, and sarcastic presentation, is a parody.
Why does the context matter? If you stop and think about it, your parody is bringing valuable ideas and expression to the public. You are giving them insights, opinions, and information that is not normally associated with the cartoon character. There is no chance your audience would confuse you with the originator of the character, because your presentation is so original and mocking. You are starting with the original cartoon and using it as a vehicle for social commentary. You are not stealing customers from the originator, you are creating an entirely original product.
Creating parodies is not easy. But the effort is worth it!
What should you do?
But the big question still remains: Should you continue to make balloon versions of famous characters? If so, will you be sued?
I cannot answer that question for you. What are the risks? Are you visible enough in the market to attract their attention? What will you do if you are asked to stop?
From the perspective of a huge media company, a few balloon twisters around the world are not a problem. If one gets too close to home (perhaps near Walt Disney World) they can ‘swat them’ with a nasty letter. Are they willing to go to court to stop the balloon artist? Perhaps. But are you willing to be a test case? It may take tens of thousands of dollars in legal fees just to prove if you are right or wrong. Do you have those resources?
Are you more likely to be noticed if you work near the copyright/trademark owner? Probably. Who knows? Maybe they won’t bother you. Maybe the publicity will be good for you — you’ll get on the local news. Maybe it will scare off your corporate clients who don’t want to be associated with an infringer. If you land a large TV contract to twist balloons you will probably be stopped if you made character balloons without permission. But there is a huge sea of gray between being a community entertainer and a national TV star. Where do you fall?
The Twistin’ Todd approach
As both a balloon entertainer and attorney, I am very sensitive to these issues. I do not want to be in the business of copyright/trademark infringement, and yet I want to offer my clientele the best balloons that I can make.
First, I try not to twist famous cartoon characters at gigs. I do make a number of balloon cartoons, but they are rarely balloon versions of Mickey, Goofy, Pooh, or other cartoon celebrities. I make fun cartoon ducks, chickens, bears, and others. When ‘forced’ to make a cartoon celebrity I make a balloon version that takes as little from the original as possible. For example, a red circle with white eyes and an orange nose looks nothing like Elmo from Sesame Street. Yet somehow, the combination of those colors makes little kids scream out ‘Elllll Moeee’. I do not understand why or how. The balloon lacks arms, hands, legs, feet, a body, a round head, fur, etc. But it still gets the funny response.
So instead of copying the original, I am merely referencing it. It is a subtle distinction, but very important. If you look at the list of fair use factors, you will note one of them balances the amount that you copied. Obviously, the less you copy, the less likely you are to be an infringer. Similarly, the further away you are from the company logo, the less the likelihood of confusion.
Second, I try to twist character hats, not the characters themselves. I explain, ‘no, I can’t twist a balloon Goofy for you, Goofy is an actor on TV. But I can give you a goofy-looking hat and you can pretend to be the TV star!’ Note the double meaning attached to the word ‘Goofy’. I then create a hat with a cartoon face that minimally evokes the famous character. I put it on the person’s head, and tell them to become the TV star – they will start to act silly and use funny voices. I move the focus away from my skill in copying to the experience of wearing a hat with character. What if they insist on having a balloon doll just like the cartoon? I refuse. First, I do not have time to twist one of those, and second, I do not want to infringe on any copyright/trademark.
Third, when I want to impress a client, I make something else. I make a caricature of a person at the event, not a caricature of a cartoon. I show them a balloon magic trick. I set up a balloon game. I use the balloons to tell a story. I use the balloons to transform an audience member into a fantasy figure. Everyone has seen cartoon characters – but not original balloon sculptures.
Fourth, I create a humorous presentation imbued with social commentary. Once of my favorites is to mock the influence of television on educating our youth.
Finally, I only twist detailed characters for practice or for free. When I am not busy I will go to my favorite street performing venue and practice. I practice to try out new techniques and create new presentations. Some of the sculptures look like characters on an audience members t-shirt. Some do not. As a street performer, I do not charge for my work. My hat is filled if my audience likes me – none of that one-dollar-for-a-balloon-thing. I know that I can take what I learn in my practice sessions and apply it to my own original work. Some of it will result in original sculptures, others in original presentations, and a small percentage might become a parody of a famous work
If you have read this far then you know more about balloons and intellectual property law then most people do. Make an informed choice. Be original. And try not to get sued!
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