Disney: The Only Fun Allowed At Children's Birthday Parties Is Properly Licensed Fun

from the mouse-in-the-house dept

Readers of this site will hear the name Disney and immediately begin rolling their eyes. By virtue of its insanely aggressive and expansionist views on intellectual property matters, Disney manages to find itself on the wrong side of nearly every issue. Disney is in the business of making money and it often looks to do so in the most draconian of manners, but the company also bills itself as being dedicated to children’s entertainment, growth, and happiness.

Which is why it’s somewhat odd to see the giant media company going to IP war against a company that sends unlicensed, poorly-disguised homage characters to children’s birthday parties.

Characters for Hire in New York has been hit with a lawsuit after being accused by Disney of infringing upon “highly valuable intellectual property rights” (via the Hollywood Reporter). This includes Star Wars and Frozen characters, as well as superheroes such as Iron Man.

Except that those characters are altered ever so slightly and renamed in an obvious attempt to get around the exact intellectual property laws — copyright and trademark — over which Disney is suing. Darth Vader, for instance, is listed as Dark Lord, while Chewbacca has been rebranded as Big Hairy Guy. No, that’s not a joke. On the company’s homepage, it displays the following disclaimer:

DISCLAIMER: ALL COSTUMED CHARACTERS ARE GENERIC/INSPIRED AND ARE NOT AFFILIATED, LICENSED OR ASSOCIATED WITH ANY CORPORATION OR TRADEMARK. It is not our intention to violate any copyright laws. The characters that we offer are NOT name brand copyrighted characters, and Characters for Hire, LLC. costumed characters are named of our own creation. Any resemblance to nationally known copyrighted characters is strictly coincidental. Should you have the need for a licensed, copyrighted mascot or character at your event, we encourage you to contact the company/copyright holders for your specific targeted character. If you have any questions regarding this issue, we encourage you to contact us. We DO NOT offer nor do we present any licensed and/or copyrighted characters.

For that reason, Characters For Hire is claiming that both the copyright and trademark claims from Disney aren’t valid. The characters are altered and renamed in an effort to gain protection from the idea/expression dichotomy, with those same changes and the disclaimer making it clear to the public that the company has no affiliation with the IP owners of the original characters from which these generics are inspired.

That said… yeah, but no. The point made in the disclaimer that the likenesses are strictly coincidental is laughable at best. It’s very likely that the copyright portion of Disney’s claims will hold up in court. The trademark claims have less a chance of success, as it’s abundantly clear that these are not licensed characters or associated in any way with companies like Disney. But, still, the so-called generic characters of Characters For Hire appear to be more than merely “inspired” by the originals and are instead near identical characters with alterations made only to get around copyright law.

But the larger point is: hey, Disney, why? Given that the copyright claims are the most substantive, there was nothing requiring Disney to take this action. Certainly it is laughable for Disney to claim any serious harm from a copyright perspective due to Characters For Hire’s actions. All this is really doing is keeping some fun, if unoriginal, characters from entertaining kids and people at birthdays and related events. Is giving up the stated aim to make children happy really worth smacking around a relatively small company that works these sorts of parties?

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Companies: characters for hire, disney

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Comments on “Disney: The Only Fun Allowed At Children's Birthday Parties Is Properly Licensed Fun”

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nate Hoffelder (user link) says:

is it really so hard to understand?

“But the larger point is: hey, Disney, why? Given that the copyright claims are the most substantive, there was nothing requiring Disney to take this action.”

I’m surprised you can’t see Disney’s motivations. I can’t read their minds but I can guess.

Disney has licensed so much merchandise over the years that it is entirely plausible they have decided now is the time to start licensing for their characters to show up at parties.

I can’t find any officially licensed characters, but I wouldn’t be surprised if that will change soon.

SirWired (profile) says:

It's about a deterrent, not this individual company

It’s almost certain that Disney’s legal costs will exceed anything they could hope to recover from this company, but it’s a perfectly sensible exercise of copyright for the copyright holder to nevertheless pursue such a case as a warning to any random schmuck that wants to trade off Disney’s IP without paying for it.

Certainly Disney makes boatloads of cash off of licensing, and they’d like companies to be aware that there’s real peril to your business involved if you try and avoid giving Disney their cut. They might not recovery much from this place, but if it deters a larger number of other businesses from doing the same thing, that’s still a win.

And if they are going to file a copyright action already, they might as well toss in trademark claims while they were at it in order to deflect any future claims of abandonment by others; it’s not like it costs much extra to add those to the suit.

takitus (profile) says:

Re: It's about a deterrent, not this individual company

it’s a perfectly sensible exercise of copyright for the copyright holder to nevertheless pursue such a case as a warning to any random schmuck that wants to trade off Disney’s IP without paying for it.

A more sensible exercise would be to send the sort of cease-and-desist boilerplate. Or they could issue a polite demand that the company obtain a license, with the contact info for the appropriate Disney official.

Or they could just thank them for the free advertising.

SirWired (profile) says:

Re: Re: C&D's aren't very fear inspiring

The point of the exercise isn’t to discourage a single company (though this does appear to be a pretty large outfit) where a C&D or nominal licensing fee might make sense. The point is to strike fear into everybody else, and a C&D to one place isn’t going to do that. (And only charging the licensing fees they’d have to pay anyway makes about as much sense as letting any shoplifter go if they just pay for the value of the item they were trying to steal.)

And I’m pretty sure the costume company is getting a lot more value from Disney coming up with this IP for these guys to rent out than Disney would get from “free advertising”.

BernardoVerda (profile) says:

Re: Re: Re: C&D's aren't very fear inspiring

And I’m pretty sure the costume company is getting a lot more value from Disney coming up with this IP for these guys to rent out than Disney would get from "free advertising".

What’s wrong with that, exactly?

I’m pretty sure I’m getting more value out of Dell for this computer, than Dell or Microsoft gets from me using their products.

That’s kind of the point — even for material goods.
All the more so for "cultural" products.

The problem isn’t that this relatively small, Children’s Entertainers company is making money from "Disney’s" so-called "product" . The fact that we even get caught up in this blinkered mindset is telling.

The real problem is that we’ve somehow manoevered our society into such an intellectual/social/cultural cul-de-sac, that we’re willing to treat huge swathes of our common or popular culture as the private property of a few large corporations, who have the sole power to regulate and exploit the various uses of our society’s cultural resource — and have such difficulty in even seeing outside that paradigm that we treat this state of affairs as a perfectly natural set of assumptions, perhaps even necessary or unavoidable, assumptions of what’s reasonable, of what’s fair, and of how the world should work.

SirWired (profile) says:

Re: Re: Re:2 C&D's aren't very fear inspiring

If Disney doesn’t own “huge swathes” of our common or popular culture. E.g., one can totally sell a costume of a generic princess without paying Disney one thin dime.

But if that princess is a spitting image for Snow White or Elsa, then Disney most certainly does own that, since they did the design.

Anonymous Coward says:

Re: "Readers of this site will hear" -- AMAZING! However, I heard nothing.

But apparently you can’t see (er, I mean hear) that allowing just one tiny little company that “only wants to make children happy” leads to a thousand more.

Problem for defendants is again with using someone else’s “creation” — in quotes because I consider the characters as such minimal effort — but there is much supporting effort that gives value to the semblance, I mean soundance. IF no settlement and the case is heard, I mean seen, it’ll be open and shut.

You’d do better attacking Disney corporation as such, they’re ALL evil, not its defense of copyright / trademarks. You haven’t made any progress on latter fronts for 20 years now. But you won’t hear of, nor see, taking any other line.

Sirra says:

“Disney is in the business of making money” — All businesses are in the business of making money. If they aren’t, they aren’t “in business”.

“But the larger point is: hey, Disney, why?”
— See above.

Disney owns the stories, they own the characters, they own the rights for public performances, which these cases clearly are.

There’s nothing here that’s not a slam dunk “DUH!” as this is a business trying to piggyback on Disney’s collective copyrighted works.

It’s not a father trying to organize a birthday party with a rented costume and some party favors from Walmart for their kid. It’s a company who’s major business is renting out actors wearing the costumes of copyrighted characters for a profit without an agreement with Disney to do so. Big difference!

Now I’m going to go take an antihistamine as I’m breaking out in hives supporting Disney’s position.

Anonymous Coward says:

Re: Re:

It’s not a father trying to organize a birthday party with a rented costume and some party favors from Walmart for their kid. It’s a company who’s major business is renting out actors wearing the costumes of copyrighted characters for a profit without an agreement with Disney to do so. Big difference!

You’re missing the point of the article’s question. It’s not about whether Disney has a good case. It’s about whether it is in anyone’s interest for Disney to pursue (and likely win) this case. If Disney is in the business of competing with Characters For Hire, why haven’t we heard about it? If it isn’t in the business, then it’s not losing any money from letting Characters For Hire operate, because it wasn’t going to get any revenue from hiring out costumed characters anyway. Maybe the goal is to secure a licensing agreement whereby it gets a cut of every Characters For Hire appearance. However, there’s no mention that they tried anything like that before jumping straight to a lawsuit. Further, there’s a question of how big a cut Disney could demand before Characters For Hire decides that it’s cheaper to eliminate all the Disney-owned characters (or perhaps all characters – and then shutdown entirely) than to pay up. Whose interests are served by forcing Characters For Hire to cease operating Disney characters, if Disney itself has no interest in taking that market niche once the current occupant is forced out?

MyNameHere (profile) says:

Re: Re: Re:

It’s in the interest of every creator, every writer, and everyone related to this sort of thing, and indirectly in the public’s own interest.

You have to remember that this isn’t just an abstract IP issue – it’s also a performance issue. When they do the Dark Lord and Hairy Guy thing, they aren’t just making pictures or whatever, they are offering a performance. They appear at your event and perform as those characters.

The question is pretty simple: if they can do this in public, then why not also allow them to make videos, movies, do theater shows, all without licensing and without consideration for the original creators?

There is little tangible benefit for Disney to turn a blind eye, but there is plenty of potential harm and creeping of the line of “acceptable abuse”.

Reversing your questions is simple: What is the tangible benefits for letting Characters for Hire to continue without obtaining a license? Do you not think that if they let this one go that a 1000 other shops will set up and do the same? That would fairly obviously dilute the value of a characters and lower very directly what Disney would be able to charge for a similar service.

When you go to a Disney theme park and pay your ticket price to get in, it includes the value (especially for your younger ones) of meeting the characters. On a recent trip to the mouse trap with my family, we met storm troopers, Darth Vader, Iron Man, Baymax from Big Hero 6, The mouse and his minions, and so on. For my son especially, the pictures with the “real” Iron Man is something he loves to show his friends, and is his phone screen background. If they were common on every street corner, the value even for him would be diminished.

It’s all a bit of a loop – it’s often hard to express the value to the public. It’s easy to get the short term “cheaper characters for your kids birthday party”, but the longer term implications aren’t that positive. The short term “now now free gimmie!” is easy, but almost always has implications.

BernardoVerda (profile) says:

Re: Re: Re:2 Re:

Of course it does!

I mean, how cold anyone expect our creative artists and industries to come up with ways to create art and manage their affairs an artistic milieu where huge swathes of society’s common culture (especially the “popular” parts) weren’t owned and controlled by a relatively few, private interests who exercise full control over who exploits or somehow derives profit from these cultural resources?

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:3 Re:

The same way Disney did it, steal from the public domain. They are part of the public, aren’t they? They have every reason to ‘re-invent’ characters from the public domain and then tie them up for life of the author plus 70 years. So long as every reason includes greed.

What they won’t tell you is the the ‘author’ is a corporation and it won’t die, plus 70 years.

MyNameHere (profile) says:

Re: Re: Re:2 Re:

Umm, no.

Cosplay isn’t a professional thing. Cosplayers aren’t getting paid to perform. They are dressing that way in tribute, and nothing else.

I don’t see Disney (or any other major player) getting upset about Cosplay. They don’t like companies who make and sell unlicensed “complete” costumes, but they have not and generally will not go after the cosplay crowd.

MyNameHere (profile) says:

Re: Re: Re:4 Re:

You are correct, oh trollish one.

It is, however, a simplistic way to explain things. Disney isn’t that concerned with fans being fans. They are concerned with people trying to make a buck off or make their own names on the back of Disney stuff.

While nobody around here would ever like to admit it, Disney is pretty tolerant of many uses of their works, they don’t chase after fans (a few video game companies could stand to learn from that). Disney has created a very powerful portfolio of characters and has purchased perhaps one of the few other big portfolios (Star Wars) in part because they are really good at minding their business carefully.

Love them or hate them (and I know you hate them) Disney isn’t in the wrong here. They are actually being pretty reasonable and calm about it, but they are taking care of business.

Anonymous Coward says:

Re: Re: Re:3 Re:

They’re not in the majority, but there are (part-time) professional cosplayers. Though usually they’re used for promotion and asked to create cosplays specifically for the employing promoter so proper licensing obviously isn’t a concern. e.g. Video game company pays person to create an outfit and dress as one of their characters to walk around PAX and attract people to the game’s booth.

(Doesn’t really address or apply to the situation here, but just saying.)

David says:

Re: Re:

There’s nothing here that’s not a slam dunk "DUH!" as this is a business trying to piggyback on Disney’s collective copyrighted works.

Copyright protects literal expression in a tangible medium. It is carving out a non-trivial limited niche of remuneration for authors. In a similar vein, trademark and patents are carving out limited niches of remuneration.

In contrast, the talking point of "intellectual property" is based on the theory that everything deriving from some original idea has to be tied into recompensation of the author.

That is not how culture works. It is how it dies. Referencing what came before you is an essential tenet of culture, and the breeding ground of culture are the low-quality masses that only occasionaly bring forth worthwhile highlights. Obviously the low-quality masses cannot afford licensing so they cannot stand on the shoulders of giants in our current society.

If someone runs a Disney-written program for a Chewbacca costume through a sewing automaton: I have no beef with this triggering copyright. Neither with people being kept from photocopying seamstress patterns sold by Disney.

But creating Disney-inspired costumes for characters known via Disney? That’s not within the profit niche copyright was supposed to carve out for authors.

BernardoVerda (profile) says:

Re: Re: Re:

Yes — it’s how culture works.

Any successful story or artist work that achieves public acclaim, becomes public culture.

You can’t (or at least, shouldn’t) expect to create a hugely successful and popular artistic “product” — and expect to be able to keep it fenced it of from that public as a private property, exclusively regulated by an “owner”. The assimilation into common/popular culture is the unavoidable, and arguably necessary, price of that popular success.

It’s rather schizophrenic aspect of our society that we’re even willing to argue that major segments of popular culture should be should be able to be kept fenced off as “private” artistic creations and so-called “intellectual property” — even as they are being assiduously presented to as broad a public as possible…

Anonymous Coward says:

Look… me and the McDonald’s people got this little misunderstanding. See, they’re McDonald’s… I’m McDowell’s. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns have no seeds.

orbitalinsertion (profile) says:

Re: Problematic Logo - Disney Characters

Someone missed the obvious Batguy and Spiderdude silhouettes in the recognition manual, among others. Although only one is a Disney property. Poppins and Hook have similar silhouettes in their completely non-Disney originals (and non-Disney other productions), whether acted or illustrated.

Again, not that Disney doesn’t have some claim here, but it’s a pretty stupid one, and unnecessary. On other counts, Disney just likes having it both ways, for itself, but not others.

Disney just likes playing one of their own hilariously archetypal bad guys. Even if they are technically in the right, they take it out on the weak and the children.

I wonder if Disney also owns THX1138 from the purchase of Lucas properties. Lol.

Anonymous Coward says:

Yeah… Disney…
They should put as much effort into making sure their genuine licensed Disney products aren’t flimsy pieces of crap like they currently are.
$1.50 worth of product and $18.50 worth of name.
The crappyness of their products does more to hurt their image then some stupid birthday party performers.
The sad thing is they aren’t less relevant every day, because they keep buying up franchises with big followings.
Nothing hurts their image… They have fans, and fans forgive any sort of behavior… You could prove Main Street at Disney World was paved with the bones of puppies and kittens and after a few days nobody would remember or care.
Look how people ignore trump’s shit… And Disney is a million times more cuddly then him.
That’s the power of fandom.

aj says:

I am part of a group that has disneys OK to appear in copywritten costumes.

I can see disneys point. one od disneys reason is they have no control over how characters for higher looks. In our groups we have EXTREMELY high costuming standards,thats why we have disneys ok. also all of our appearances in costume are for charity we are strictly prohibited from making money for ourselves.

Kent G. Budge (profile) says:

Disney is perfect within their rights under the law to sue the company involved. Nor are they unreasonable to do so.

The real problem, in my opinion, is the enormous length of copyright protection now in place. The Constitution authorizes Congress to grant authors exclusive use of their works <i>for a limited time.</i> Congress seems to have interpreted “limited time” to mean “anything short of infinity.” Which means that copyright could be extended until the Earth is roasted to a cinder by the aging Sun and it would still technically be a “limited time.”

I don’t know what the right limit is. My gut tells me life of author plus seventy years is ludicrous. Intellectual property of all kind from the World War II era should all be in the public domain at this point — but it isn’t.

JimBan says:

Disney not wrong here

If Disney doesn’t enforce their IP this time, then it will be evidence against them when they go after someone substantial. If they don’t enforce their IP, then it may become unenforceable in some cases. So they are doing the right thing. Anyway, if I were an investor in Disney, I’d rather have guys that do this than guys like most of the commenters, who think they should just let this be. The copying is intentional and indeed trades off the work of artists. We want artists to get paid, don’t we? I think they system works here. Now, if it was the Dad trying to make his kid happy acting like a certain character (like Gil in “Parenthood”), I would think differently. But these guys are making a living off the work of others.

Patrick H Martin says:

Another consideration for Disney

I would think one of Disney’s main concerns is that it has ZERO control over what these characters do at these children’s parties. They work hard to promote a clean, wholesome image of their characters. If some third party takes that image and defiles it, that hurts those characters and can, if it happens often enough, damage the entire Disney brand.

Suppose an employee of this place drinks too much and gets pulled over, while still in costume, for DWI. TMZ and The Smoking Gun will surely be running mug shots proclaiming “Snow White Busted for DWI!” (and if the performer had some cocaine on them at the time, the headline will be “Putting the ‘Snow’ in Snow White!”

This type of brand reputation is precisely the type of thing that trademark law exists to protect.

John85851 (profile) says:

What's the harm?

I know it’s not a popular position to side with a corporate giant like Disney, but hear me out:

1) The Characters for Hire company is obviously trading on Disney’s characters. Do they hire out “policeman” or “fireman” characters? Probably, but those aren’t as exciting (or make as much money) as Darth Vader and Chewbacca look-alikes.

2) The “not affiliated with” idea: how many people will go to the Characters for Hire website, see the “close enough” characters and assume the company works with Disney? I doubt many people will look for the “officially licensed by” tagline as seen on many costume sites.

3) And by extension, what happens when something goes wrong? Maybe the actor gets into an accident or the party goes bad or whatever. Now Disney’s characters are associated with this incident.
Does anyone really think the media will say “An actor playing Big Chewy Guy, which is totally not Chewbacca because Chewbacca is a registered trademark of Disney and these guys are not associated with Disney, rear-ended someone”? Of course not- it’ll be “A guy dressed as Chewbacca rear-ended someone”.

Anonymous Coward says:

Tried it and it failed

The constitution granted the right but not any sort of requirement to create a copyright. We tried it and it got stretched to unconstitutional measures by reason. Since the copyright experiment has become a failure with copyrights no longer expiring within a humans lifetime they are effectively NOT FOR A LIMITED TIME, copyright itself should be abolished.

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