can we get to sesame street?

July 7, 2009 3:03 PM

question about copyright infringement regarding sesame street characters.

my wife has been asked by a friend to make some large decorative paintings to line a fence at new daycare center (for profit). the general request was for cartoon characters. after reading some horror stories about disney suing a few daycares in florida for having murals of their trademarked characters on walls, she wants to make sure that what she ends up doing is legal or at least not a probable lawsuit. she has emailed the sesame st people but not gotten a reply. the project needs to be underway quickly and we are trying to get a feel for whether elmo, big bird and the gang are safe to rip off. there is a lot of free clip art of these characters out there and it seems that they may simply be old enough to be public domain. any thoughts?

posted by cvilleluke to law & government (15 comments total)

Yeah. Don't assume something is in the public domain. Verify it. Else expose yourself to lawsuits funded by people with much more capital than you.

As for whether these characters are old enough to be in the public domain, I sincerely doubt it, since Mickey Mouse et al, which are older than Sesame Street, are decidedly not in the public domain.
posted by dfriedman at 3:05 PM on July 7

Trademark law is going to be more important to you than copyright, in this case, so their age does not really matter.
posted by nomisxid at 3:17 PM on July 7

Just because clip art exists, doesn't mean it was obtained via legal means or not infringing on those copyright itself. Stuff in the public domain is decidedly older than 40-year old Sesame Street.

All those characters are copyrighted, and while she could try doing the art and hope the day care doesn't get caught/sued, it would be more advisable to just create some original art.
posted by cmgonzalez at 3:20 PM on July 7

No, they're not in the public domain.

The trademarks belong to the Sesame Workshop (formerly Children's Television Workshop), a forty year old education nonprofit.
posted by box at 3:21 PM on July 7

And just to clarify, they're not copyrighted, they're trademarked.

Truth is that Sesame Workshop has always seemed less litigious than the Mouse House (likely due to less resources like lawyers), but they do have to protect their trademark. So, it is possible that the center might get a cease and desist.
posted by inturnaround at 3:24 PM on July 7

The only things you can be reasonably sure are in the public domain (in the U.S.) due to their age, with no additional research, are things which were around before 1923. Sesame Street has been around awhile, but nowhere near that long.

And with character likenesses, even then you have to be careful, because if the character's appearance changes over time, the latter (and probably more well-known) likeness may still be under copyright even if the original is not. Real-life example: Alice's Adventures in Wonderland the book, along with the famous Tenniel illustrations, published in 1865, are in the public domain. Alice as she appears in the 1951 Disney film adaptation is still copyrighted.

(And as others have noted, trademark infringement as well as copyright infringement must be considered. And the "before 1923 is generally safe" applies only to copyright infringement, not necessarily to trademark infringement.)
posted by DevilsAdvocate at 3:26 PM on July 7

Tell her to not do it. Further, she should whip-up her own cartoon characters...maybe of girls and boys and puppies and kitties, you get the idea...to sell to the daycare as an alternative.

Daycares can be pretty blatant as far as this sort of infringement goes.
posted by Thorzdad at 3:27 PM on July 7

Have her print out the stories about daycares getting sued and bring them with her when she shows her original sketches to the owner.
posted by vilthuril at 3:36 PM on July 7

Don't do it. It's unnecessary, risky, and most of all, it's lazy design.

There are a million ways to make things that kids will like and identify with without falling back on trademarked corporate properties. Sesame Street might be one of the more harmless enterprises, sure, but really, are you selling Elmo dolls, here? It's a small step sideways to just using Ronald McDonald... and I bet McD's would even send someone over to help paint, if you know what I mean.

Things kids like that would work without legal/corporate hassle:

Firemen.
Spacemen.
Aliens.
Pirates.
Monster trucks.
Dinosaurs.
Construction Equipment.
Insects.
Deep-sea divers (and octopuseseses!).
Airplanes.
Sports-players.
Rocket ships.

Really, there's no reason to resort to branded properties, here.
posted by rokusan at 3:40 PM on July 7 [4 favorites]

The only things you can be reasonably sure are in the public domain (in the U.S.) due to their age, with no additional research, are things which were around before 1923. Sesame Street has been around awhile, but nowhere near that long.

Sorry, no. Trademarks don't expire. They continue forever but only if they're defended. Which means that owners of valuable trademarks pretty much have to defend them.

Owners of trademarks all remember what happened to "aspirin". That word used to be a trademark of Bayer, but they didn't defend it and lost it in the US, where it is now a generic term. If you travel to Canada, however, and buy "aspirin" it will be Bayer because the trademark is still in force in Canada.
posted by Chocolate Pickle at 3:49 PM on July 7

Not sure we really need a primer on copyright and trademark law, but Sesame Street characters are certainly only available to be used under license. You could go through it anyway and likely the worst might be that CTW has the daycare paint over the infringing characters.

For something like this I would (and always do) suggest that drawings by the children themselves be used for the mural. It's beyond the scope of the question, but I wonder for whose entertainment this mural is being painted, kids who don't see enough TV or adults who want something to show off.
posted by rhizome at 4:04 PM on July 7 [1 favorite]

There's a big exemption to copyright for use of copyrighted works in an educational context. Here is the statute: link

I don't know that what the daycare center is doing falls under that exemption, and the fact that it's a for-profit educational endeavor may disqualify it. Also, as previously mentioned, it does not necessarily apply to potential trademark infringement.

On the practical side of this, I'm not sure your wife would really be as liable as the daycare center itself for having Elmo up on the wall. There are certainly exemptions to liability for people who do works-for-hire as employees or contractors; if Sesame Street sues anyone, it'll likely be the daycare center, and not your wife.

But you really ought to get the counselling from a lawyer on this one. It's not an easy question to answer, and takes a real legal analysis based on more facts than you have presented.
posted by jabberjaw at 4:51 PM on July 7

Jabberjaw, I doubt that also applies to trademarks.
posted by Chocolate Pickle at 4:54 PM on July 7

rhizome, deserves best answer in this thread.

Write a real actual letter to:

Sesame Workshop
1 Lincoln Plaza
New York, NY 10023

Include photos of where the mural will go, what it's intent will be (decorating a daycare), etc. Ask how much a license will be. I am guessing they will answer. I am also guessing they will be cool about it, you know, since they actually like kids and all.
posted by cjorgensen at 5:54 PM on July 7

Owners of trademarks all remember what happened to "aspirin". That word used to be a trademark of Bayer, but they didn't defend it and lost it in the US, where it is now a generic term.

That's not actually true. Bayer GmbH lost the trademark for aspirin (also heroin) in the US in a legal decision relating to involvement in World War I.

A trademark that was lost through lack of defense was on "zipper".
posted by Sidhedevil at 11:14 AM on July 8 [1 favorite]