Character of the Week: Kermit the Frog
Sunday, I was a guest on The Podge Cast. I'll let you know when that session is up on their site. We talked about a number of things, including how individuals may use right of publicity and trademark to protect their fame. I blurted out that I would start a related, recurring feature on this blog about how fictional characters protect their fame.
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That's right. Some fictional characters start to take on a life of their own and there are a number of legal rights that protect intellectual property interests in characters. It is something I have spent a lot of time doing and I enjoy it enough that it makes sense to write about at least once a week. So here goes. My first character of the week: Kermit the Frog.
As with many of the iconic characters in popular culture, Kermit evolved over time. Originally a faintly defined reptile or amphibian sock puppet with ping-pong-ball eyes, Kermit acquired additional traits and greater definition over time. Eventually, he came to be known as an anthropomorphic frog who grew up in a swamp and traveled across the country to make it big in show business, His fame grew from a local D.C. area TV station, to nationwide appearances on public television on Sesame Street for the Children's Television Workshop, to fronting the prime-time broadcast of The Muppet Show on a major broadcast network, to Hollywood stardom in a bio-pic on the silver screen.
We watched his career grow from TV-news correspondent, to variety-show host, to actor, director and producer. At the same time, we learned about his fears, friendships, and loves. He is the shy celebrity, uncomfortable with fame. But, he became so famous that the world has a hard time telling where fiction ends and reality begins. Last fall, he escorted Lady Gaga to the MTV Video Awards and with a kiss, created a scandal that earned him an interview with People magazine.
Just as with any real-life celebrity, the fame associated with Kermit is a valuable, intangible property. Intellectual-property law protects that value in a number of ways.
The two main ways in which IP law protects characters are copyright and trademark.
- Each of the works in which Kermit is depicted is protected by copyright. And, when a character is sufficiently defined, courts have recognized that copyright law may protect a character from unauthorized copying.
A character may also be protected trademark. If a character is sufficiently distinct, it may serve as a symbol to designate the source or origin of goods or services. This happens most often, but not exclusively in the context of merchandising.
As a trademark, Kermit became a symbol designating Jim Henson and his companies as the source for all things Kermit related. At first, it was for Kermit puppets. It grew to include all merchandising emblazoned with Kermit. And eventually, Kermit's fame outstripped that of his creator such that Kermit became the trademark for all things Henson.
With Jim Henson's death, Kermit and Henson's other intellectual property passed to his family. They sold Kermit, bought him back, and sold him again. As Sharon Armstrong pointed out in a post on the Duets Blog, Kermit is now owned by The Muppets Studio, LLC which is a wholly owned subsidiary of The Walt Disney Company.
With an established and valuable character, it becomes a challenge to protect the character. Trademark infringement or dilution actions are one possible way to do this. But, the most successful characters become so famous that, like celebrities, They are natural targets for social commentary.
Such is the case with Kermit the Frog. In 2007, Sad Kermit became an Internet phenomenon. In his music video debut, Sad Kermit covers the Nine Inch Nails's song Hurt in the style of Johnny Cash. The normally family friendly Kermit takes viewers into a dark, destructive spiral of self-abuse.
Initially, the "Hurt" video was taken down from YouTube because of a copyright claim from the Jim Henson Company, but it is back. Although the creators of Sad Kermit abandoned their federal trademark application, the character endures and he has his own website with additional songs and videos.
Keeping the focus on trademark for the time being, Mattel v. MCA Records provides the analytical framework that most courts would apply to this situation. What is notable, and what Pete pointed out in his post on the The North Face/The South Butt dispute, is that - like with real celebrities and the right of publicity - there is no clearly defined parody defense to trademark infringement. Changes to the federal anti-dilution statute in 2006 (codified at 15 USCA 1125) identified a number of defenses that recognize First Amendment rights to use another person's mark in certain circumstances. Specifically:
(A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with--
(i) advertising or promotion that permits consumers to compare goods or services; or
(ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.
(B) All forms of news reporting and news commentary.
(C) Any noncommercial use of a mark.
If The Muppets Studios/Disney took legal action against the operators of the Sad Kermit website, Sad Kermit's creator's might ave a difficult time arguing that using Sad Kermit as the title for the website was any use "other than as a designation of source for the person's own goods or services." Still, under Judge Kozinski's analysis in Mattel, The Muppet Studios might have a difficult time establishing that Sad Kermit was "commercial."
It appears that Sad Kermit's creators, by abandoning their application for a federal trademark registration, and The Muppet Studios, by not filing suit, have decided to follow Judge Kozinski's last bit of advice to the Mattel litigants, "to chill."
Perhaps The Muppet Studios recognize that Jim Henson's Kermit oversaw an extremely popular show on which music video parodies of celebrities were a mainstay. Maybe Kermit simply told them not to sue. Regardless, with the introduction of a new series of Muppet music videos, The Muppet Studios appear willing to let the public decide whose Muppet is more loved by the public. You be the judge. The Muppets perform Bohemian Rhapsody here.
Pete Salsich III is an occasionally accomplished illustrator and relatively weak guitar player whose secret identity is that of an
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Michael A. Kahn concentrates his practice in copyright, trademark, First Amendment and media law (libel, privacy rights). He is