** This is one part of a five part series I did for CBC Mainstreet Cape Breton on Intellectual Property Law. The audio is available here - the following is the script of the audio recording - ENJOY**


One Elsa,
Two Elsas,
Three Elsas.
Halloween this year was a parade of little Elsas.
The blue dress, the white braid, the…. snow suit over top.
If you measure the success of a Disney movie by Halloween costumes – it’s clear Disney’s Frozen was a runaway success.

Let’s say like many other super-fans I dressed up as Elsa for Halloween.
Since the cold doesn’t bother me anyway, I went out trick-or-treating dressed in a blue dress with a sheer blue cape.

Photo credit: Josh Hallett
[Unfortunately, this is not a photo of me - I dressed up as Prof. McGonagall this year - see Twitter for how awesome it was]

Can Disney sue me?

It depends.

We’ve talked about copyright, it’s the exclusive right of the creator to produce, reproduce, perform, and otherwise use their creation for their lifetime – plus 50 years.

Disney holds the copyright in Frozen. They own the rights to the movie.
If I copy the movie without their permission – I’ve infringed copyright.
If I copy any substantial part of the movie without their permission – I’ve infringed copyright.

What about Elsa?

Well, she’s a character in a movie – a work - and therefore protected by copyright.
She’s also protected by trademark.

Trademarks may be one or a combination of words, sounds, or designs used to distinguish the goods or services of one person or organization from those of others in the marketplace.

In other words, trademark does not protect the product itself – it protects the brand.



For example, Coco-cola has a logo and a name – both form part of their brand and both are protected by trademark because the public ... us ... has formed an association btw the product and the reputation of the pop manufacturer. The goal of trademark is to prevent confusion in mind of consumer regarding the source of the wares. Trademark prevents another company from using the Coco-cola logo on their pop to pass that pop off as a genuine Coco-cola product.

[Interesting side-note: check out one of the original trademark registrations for Coca-Cola HERE]

Logos and names are protected by trademark, so is packaging.
The shape of the coke bottle is protected by trademark.

For Frozen, Disney would argue Elsa’s face; her distinctive blue dress; and her long, white braid – or a combination of these elements – form the subject of a trademark. Disney would argue: anyone seeing these three elements combined would think of the movie, Frozen, and Disney.

For my Halloween costume – that would be the point.

Some people take dressing up in costume more seriously than others.

Photo Credit: Bart

Hal-Con is the Halifax incarnation of Comic-Con: a sci-fi, fantasy, and gaming convention where participants are welcome to dress up as their favourite character. The costumes are hand-made and they are very well done. The Elsas are more Elsa than the real Elsa … and there is always a Darth Vader.

These costumes fit under a wider umbrella of “User Generated Content” – content created by fans that branches off from the original creative work.

Another form of User Generated Content is Fan Fiction.



Fan Fiction is fiction about characters or settings from an original work of fiction, created by fans of that work.

For example, JK Rowling’s Harry Potter series has been spun off by fans into a massive collection of fan fiction – covering everything from Hermione’s future career as the Minister of Magic to a pre-qual of Harry Potter’s parents.

Some artists (and JK Rowling is one of them) have embraced the fan fiction. In fact, Rowling continues to publish snippets of the back-stories of characters from the books – almost like she’s publishing her own fan fiction.

BUT - What if the author of the work doesn’t like what the fan has produced? For example, a large body of fan fiction focused on alternative worlds where Harry Potter falls in love with Draco Malfoy and the two are married. JK Rowling isn’t opposed to same sex marriage, but if she were, she would be more likely to challenge this use of her characters.

A character of a book or a movie is a part of that book or movie. Characters are normally the link between the copyrighted work and the fan fiction. Characters are protected by copyright if they are sufficiently distinctive, thorough, and complete. This rule allows authors to protect their characters from being appropriated and used in other works.

This test for whether a character is copyrightable was set by Anne of Green Gables… by which I mean Anne of Green Gables Licensing Authority Inc. v. Avonlea Traditions Inc. where the court held that good old Anne, the character, was protected by copyright.

BUT not all characters are copyrightable. The rule does not protect generic, stock characters.

BUT where is the line drawn?

There are nearly 200 Simpson’s Characters – is each one of them protected?



All I know is that each one of them has a Wikipedia page. [My personal favourite is Lionel Hutz]

Harry Potter is probably copyrighted, but what about the other minor characters in the Harry Potter series?

Severus Snape?

Lily Potter?

How minor does a character have to be not to be copyrighted?

Setting posses another problem.

Is Hogwarts enough of the part of the story to be protected by copyright?

What about the Forbidden Forest?

These are all open questions and I may be letting my nerd flag fly a bit too much.

User Generated Content isn’t limited to book and movie characters – things really start to get interesting when creative fans get their hands on music.



A mashup is a song created by combining pieces of two or more pre-existing sound recordings into one new sound recording. Mashups usually come in the form of an A vs. B format – Just imagine Stevie Wonder and Metallica had a baby. The goal is to create something catchy and unique from two popular songs.

This wasn’t possible ten years ago. Music has moved from physical media to digital media and digital tools allowing users to modify, mix, and mash-up creations are more available and less expensive. The Internet also facilitates sharing music – mash-up artists become "internet famous” in mash-up communities and on the broader web.

The problem is, most mash-ups are created without the permission of the copyright owner and a significant number of mash-ups created and distributed in Canada today infringe copyright.

It can also be argued that many mash-ups violate moral rights.  In the context of copyright, moral rights are the artists’ right to the integrity of the work. This right, in part, protects works from distortions, mutilations, or modifications that are prejudicial to the honour or reputation of the author.
Mashup artists cut, slice, and plaster lyrics onto walls of sound built from pieces of various musical works. The original songs are usually from different musical genres – so different they may never be played on the same radio station.

If Justin Bieber doesn’t like the fact one of his songs was combined with a Slipknot song – he can claim his moral rights to his song have been infringed.



...

Let’s face it, its more likely Slipknot would complain.


Whether you’re dressing up like Elsa or mixing Guns and Roses with Thomas the Tank Engine, it’s likely that you’re coming close to infringing copyright or trademark.

Can you defend yourself?

Yes.

First, there’s the defence of Fair Dealing.

If you’ve reproduced or copied a work for the purpose of research, private study, education, parody, or satire you haven’t infringed copyright. A work can also be copied for the purpose of criticism, review, or news reporting, as long as you provide the source.

For example, Weird Al Yankovic makes a handsome living writing and performing parodies of popular songs. Although Weird Al has been challenged on several occasions [...] – his “Word Crimes” – a parody of Robin Thicke’s song “Blurred Lines” - is my personal favourite.

BUT - Does the Fair Dealing defence apply to mash-ups?

Maybe.

The question hasn’t really been addressed by the courts – it’s an open question.

If a fan uploads their mash-up to YouTube, they can’t really say it’s for “private study”. If they then make money from the views of their mash-up the fair dealing defence is less likely to protect them.

In 2012 the Copyright Modernization Act added another defence:

“Non-commercial User-generated Content”

Also known as the “mash-up exception”. This defence allows fans to create a new work from the existing copyrighted work as long as they’ve created the new work for non-commercial purposes. The fan should also give the source of the work they’re using.

A problem with this is we don’t really know what “commercial use” means in this context. If I upload a video to YouTube and get enough views – I can make some serious money – this means the mash-up exception wouldn’t apply to me.

There’s another problem: this is a Canadian exception.


It’s not in place in the US.

This poses a problem because the internet doesn’t observe geographic boundaries. If the Trans Pacific Partnership is ratified, copyright holders in the US can compel the Canadian government to require users to remove infringing content. This means mash-ups. Suddenly, the mash-up exception doesn’t look that great.

Whether it’s costume, Fan Fiction, or mash-up – fans are finding unique ways to express their love of creative works. Some artists recognize the positive impact of fan creations. Increased record sales, media attention, and revived popularity are all good reasons for artists to tacitly allow their fans to infringe copyright.

Other artists give their fans the right to use their work through a Creative Commons Licence. As long as the fans play by the rules of the licence – they can create their own work. This is a private response – as opposed to a legislative response.

Canada made steps toward dealing with User Generate Content with the mash-up exception, but we may be taking a step backward with TPP.

For fans, this trend is troubling.

The question was, can Disney sue me, a fan, for dressing up as Elsa?



They can sue me.

Would they win?

Maybe.

If I looked enough like Elsa – if I resembled her enough to make people think I was the Elsa from the Disney movie – I would be infringing their trademark.

If I looked enough like Elsa – I might also infringe Disney’s copyright – because she’s a central character in their movie.

Fair Dealing might protect me because my use of the costume is not commercial, but that’s something I’d have to prove. Ultimately, my hope would be that Disney saw the value in having a parade of little Elsas and simply – let it go.