Kentucky Creatives, Beware of The Grinch! Don’t Let Copyright Infringement Steal Your Christmas
The Tri-state area has been bustling with holly jolly happenings for the Christmas season. Folks hosting Ugly sweater parties, Holiday vendor markets, and lots of photo opportunities with Santa and even his reindeer!
One particular hilarious green icon has grown in popularity, and I have noticed him popping up all over the place as well. The mean one himself, Mr. Grinch is a beloved character despite his cranky attitude toward Christmas.
Just about anywhere you shop, you'll find displays with The Grinch's bright green grumpy face or trees decorated with lime green and fuzzy features. This past weekend I spent some time in Calhoun at Cabin Fever in The Yellow House with these adorable decorations.
A local teenager was there dressed up as Mr. Grinch. He walked around joking with shoppers and kids and his impression was SPOT on. He loves doing it so much, he welcomes folks to take pictures with him and cute little Cindy Lou Who free of charge. Offering these no-cost photos is not only very kind of him, but it also means he will avoid a nice little cease and desist letter from the Grinch's creator, Dr. Seuss' estate were they to find out.
Can You Be Sued For Using The Grinch in Photos?
On social media the other day, I noticed a disclaimer warning photographers to be careful about copyright infringement when it comes to using the Grinch's likeness for profit. This is honestly good advice for all creatives out there, but when it comes to Dr. Seuss and his characters, his legal team takes intellectual property very seriously.
I looked into this a little further because as I'm sure you already know, just because it's on Facebook, doesn't always mean it's true! Well, in this case, it's mostly accurate. At least from what I could verify.
Creating Merchandise With Copyrighted Characters
Unless you own a license to make and sell merchandise with imagery or phrases originally created by Dr. Seuss or any other copyrighted material, you could be vulnerable to legal trouble. Say you have an Etsy shop with shirts, cups, signs, or photo sessions with the Grinch, Cat in the Hat, etc, you could receive notice from Dr. Seuss Enterprises to stop immediately. Like folks in this vendor thread.
Legal Advice for Photographers
I found a website called The Law Tog which provides resources and advice for photographers when it comes to creating contracts, working with clients, and how to navigate copyrights/trademarks. They have a feature on this very subject because there was an incident that occurred with a photographer after going viral when People magazine shared her hilarious (although traumatizing) Grinch photos.
Using an accurate likeness of The Grinch for profit or even incorporating the name "The Grinch" into your advertising is a no-no. According to the Law Tog, "When photographers are using terms that are same or similar to "The Grinch" in connection with photographs = federal trademark infringement. Some alternatives could be the use of things like "the mean green one", where the terms are protected."
Consequences of Violating Copyright/Trademark Agreements
The Law Tog continues, "Well, besides the obvious of receiving a cease & desist. If you don't comply, you may owe a registered trademark holder disgorgement of your profits ( yes, this could include all the monies you made on that session including any sessions and profits made during the use of those photographs in marketing) AND attorneys fees. And I'm gonna tell you now, you'd potentially have to pay your attorney AND their attorney." That would "Stink, Stank, Stunk" for sure!
If you are a maker/photographer, I highly recommend reading the Law Tog article in its entirety. They go on to explain all kinds of situations regarding copyright usage in general as well as providing a database to search for other potential trademark pitfalls.
Inspiration Not Infringement
Here is some additional Law Tog advice for photographers who may be inspired by various trademarked icons or copyrighted pop culture and wish to respect intellectual property:
Don't use any trademarked or copyrighted materials in your marketing or sales to clients.
Do "inspired" sessions - take general elements that can create a scene without infringing on the exact protected marks.
Get permissions, if available. It seems that Counsel for Dr. Seuss Enterprises is recommending to go to www.costumespecialists.com, an authorized character appearance vendor.
YOU CAN STILL TAKE PERSONAL PHOTOGRAPHS OF YOUR KIDS IN COSTUME. The point of this is- you can't use Dr. Seuss' intellectual property for commercial gain.