Witches, and Bozos, and IP, Oh My

Trick or Tea!

Is she a witch?

And was her father a Bozo?

In observance of the upcoming Halloween and Election Day holidays, and in the spirit of fun, we take a look at the intellectual property issues raised by the candidacy of Christine O’Donnell, the Republican and Tea Party candidate for U.S. Senate from Delaware.

Almost as soon as Ms. O’Donnell upset the party favored candidate in the Republican primary on September 14, video surfaced of her on the “Politically Incorrect” television show confessing that as a young woman, she had “dabbled into witchcraft,” and had had a date on a satanic altar. Her confession made her the punch line of a thousand late night one-liners– and the subject of her very own witch action figure. Internet toy seller herobuilders.com has capitalized on the publicity by offering a 12 inch Christine O’Donnell witch action figure for $39.95, featuring a smiling likeness of Ms. O’Donnell dressed in sorceress basic black flowing cape and pointy hat (sorry, no broomstick).

Can they do that?

Rights of publicity laws in many states prohibit commercial usage of the name, image, signature, or other indicia of the identity of a person without her consent. However, rights of publicity can be superseded by the First Amendment rights of the speaker, for example if the identity is used in news reporting, political commentary, parody, or (at least in California) if significant original transformative content has been added.

At first glance, the O’Donnell action figure seems to qualify under the commentary and parody exceptions.

But even when it is a much closer call — for example, an action figure that is an outright copy of a political figure solely in order to free-ride on his/her popularity — politicians usually decide it is bad publicity to sue. Herobuilders.com also sells action figures and bobbleheads of President Obama, Sarah Palin, Nancy Pelosi, Dick Cheney, and others. A notable exception to the “no sue” rule was California Governor Arnold Schwarzenegger, who sued an online seller of Schwarzenegger bobblehead dolls in 2004, but later agreed to a settlement in which the company could sell the dolls after a few modifications, such as removing the Governator’s toy assault weapon.

IP issues seem to run in Ms. O’Donnell’s family. According to this hilarious clip from MSNBC’s “Countdown,” Ms. O’Donnell’s father was the “fill-in Bozo the Clown” for a Philadelphia television station. He could not be the “official” Bozo because he did not attend the official Bozo training school in Texas.

Indeed, “Bozo” is a registered trademark of Larry Harmon Pictures Corporation (“LHPC”) for “Entertainment Services In The Nature Of A Children’s Television Program; Entertainment Services In The Nature Of Live Performances By A Clown Character.” So as licensor of this trademark, LHPC had a duty to maintain Bozo quality standards, for example by requiring CBE (Continuing Bozo Education) of all those licensees who represented themselves as Bozos to the public. Licensing without such quality controls would have been a naked license— in effect, a naked Bozo license. And that is a thought even more scary than a witch in the Senate.

© 2010, Richard R. Bergovoy. All rights reserved.

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