DISQUS

Eric Goldman · 1 year ago

I'm stunned that you didn't file this in your "Coulrophobia" category. This could be the single most relevant post you've ever had for the category. Eric.

esqmarty · 1 year ago

Absolutely correct. I've added the Coulrophobia tag.

ohwilleke · 1 year ago

There is a good argument that the law should permit a local clown operation to avoid trademark liability in this kind of setting simply by clearly disavowing a connection to the trademark owner (with the parents). As long as it is clear that the local guy isn't affiliated with Nickelodeon and is not selling an authorized product, the justifications for trademark liability are greatly diminished. The gravemen of the offense in a case like this is appropriation of an artistic creation with value, not consumer confusion.

The harder Gordian knot to cut, it seems to me, is liability for breach of copyright through performance of a derivative work.

When actual creators interact directly with the public, without the intervention of a publisher or studio, the cultural norm in the United States is to permit others to create derivative works not for profit so long as any affiliation with the creator is disavowed. But, creators expect more if there is a profit.

But how much of a right a copyright holder should have to prohibit people from creating derivative works that the holder has no intention of creating? There are precedents for creating an "efficient breach" alternative to the exclusive right to create derivative works. One is the right to create a cover of a song and perform it, subject to payment of a statutory royalty. Another is the common provision of copyright laws in non-English speaking countries to permit translations to be written without voluntary licenses where the copyright holder refuses to use that right or grant a license to someone who will.

There isn't much evidence that these efficient breach regimes have hurt copyright holders much. The copyright holder still makes a profit that wouldn't otherwise have been realized, and many of the resulting works have significant public value.

Why not create an "efficient breach" statute for neighborhood clowns? In exchange for a royalty established much like the right to cover a song, one could make no holds barred imitations of Dora or any other licensed character, for private performance, so long as a disclaimer of affiliation was made to the consumer.

Better yet, why don't the owners of this IP make such a license available, much like the automatic licenses available to people who want to reproduce AP stories.