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Count Von Count Sesame Street puppet

Discussion in 'Puppet News' started by Louis Kazagger, Aug 13, 2002.

  1. Buck-Beaver

    Buck-Beaver Well-Known Member

    They didn't actually win in court, Cinar (the prodcuer of Whimsy) settled out of court and neither side will disclose the terms.

    It's widely assumed Cinar settled because their stock price was already crippled, the company's founders had been removed and they were being investigated for fraud by the Canadian government.

    And you think YOU had a bad year! :p
  2. CaptCrouton

    CaptCrouton Well-Known Member

    I must confess that I would love to buy a Muppet like this one and I wouldn't feel real bad about buying one. But of course I don't have the kind of money that the Count was going for. If the quality is as good as I think it is, it's a great deal. But my moral compass is flailing a bit.

    I do totally understand that selling "such an animal" on ebay for profit is illegal. I appreciate the concern of Henson in this matter, and the more quality the puppet, the greater their concern should be. And of course, mass production, or a pro company selling them is out of the question.

    I think not being able to make one for yourself is an outlandish law, but I doubt it's ever enforced. I think that law should just be removed from the books.

    The gray area for me would be if a friend of mine made one and I wanted to buy it from them, to cover labor and materials, and even making a little profit to make it worth their while. I don't do any illegal movie or CD burnings, but such a temptation would be great for me. Especially if it was one of those aliens from S.S. "Tel-e-phone. brrrrr-ing. Yip yip yip yip. Uh huh. Uh huh." I loved those guys.

    I know everyone was just waiting for my personal opinion with bated breath. You can relax easy now.:D

  3. Buck-Beaver

    Buck-Beaver Well-Known Member

    It's not a specific law - copyright law doesn't make any distinction between "fan" use and "commercial" use. Essentially, if something is copyrighted or trademarked you can't duplicate or reproduce it in any manner for any reason without the consent of the trademark owner, period.

    Disney has successfully sued Day Care centers for putting Mickey Mouse murals on their walls. Believe it or not, they don't do it to mean or malicious but because they HAVE to. If you own a copyright or trademark and don't go after someone infringing on it, you can actually loose ownership of the copyright.

    For example, say Sesame Workshop turns a blind eye to puppet builder "A" selling high-quality Muppets on ebay like the Count puppet. They figure, it's just one guy doing something their fans want so who cares? About a year later someone else (we'll call him puppet builder "B") starts making tons of Count puppets and selling them through ebay. He's making thousands of dollars so SW sues him.

    When it gets to court, puppet builder "B"'s lawyer tells the court about puppet builder "A" and how SW let it slide. If it's OK for one person to do it, why is it not OK for another person? SW loses and now the door is now open for anyone and their puppet-building brother to build and sell Count puppets.

    Then someone else decides to start making and selling Count T-shirts. When SW sues them, the T-shirt maker cites the earlier court decision against SW about the Count and SW loses again!

    Now with the loss of merchandising revenue, Sesame Workshop has less cash to pay for Sesame Street. This gets repeated often enough and they lose control over merchandising and the revenue they were earning through it. Suddenly they can't produce Sesame Street anymore (the merchandise pays for a big chunk of the show's budget).

    Sound farfetched? Things like this have actually happened before. The brand "Nike" was actually a small shoemaker in Europe. After 20 years they sued the Nike corp for infringing on his trademark but lost the case because the court ruled they had failed to defend their trademark.

    I'll admit the Count scenario I described is a little unlikely, but it still could happen and that why's companies like the JHC have to go after everybody.
  4. Ernie101

    Ernie101 Well-Known Member

    I think it is bad selling the item but making it and just keeping it for sport is not that bad.
  5. CaptCrouton

    CaptCrouton Well-Known Member

    Your points about protecting your trademark are very valid, but I still think for Disney to sue a Daycare Center for a Mickey Mural is pretty low. I guess I don't know the whole story, but sheesh, unless they were advertising their center as, "Disney Day Care" or "Mickey Mouse World" or something, they should be able to paint pictures on their walls. I can see the Disney people raiding elementary schools booking 2nd graders for their Little Mermaid drawings.

    So Muppet Quilter could get sued for the Quilts she's making? Why isn't MC sued for using all those muppet pics to your left?

    Now the Nike story I completely understand if they waited 20 years to say, "Hey, that's my company!" But I don't think Nike is going to lose their Swoosh trademark if I scribble it on my book cover in Algebra class.

    Again, I totally understand the problem with selling trademarked images, or using them for profit in some way, including the Count puppet. But it's an ugly sign of the state of affairs if you can't make your own muppets to keep. Or if your grandma can't make one for you for fear that Henson will cuff her and send her to the Hoosegow.
  6. Louis Kazagger

    Louis Kazagger Well-Known Member

    I've seen the Disney vs. the daycare center thing firsthand. It happened to a daycare center in the town where I was living in Florida a few years ago. Just why should the daycare center be able to paint Disney characters? What's wrong with generic things like rainbows, etc... to brighten up the place? Disney's stance on that is if something were to happen at a daycare center infringing on the trademark of their characters (something like child abuse or mismanagement, etc...) the Disney company in no way even wants the perception of being associated with a daycare that they don't run. Can you imagine if there was a case of sexual abuse at one of these daycare centers with one of these outdoor Disney murals, and the local news reports the story showing the outside of the building where the offenses occurred? In light of potential situations like that, you can hardly blame them. They've got enough problems in house with the odd drunken Mickey Mouse at the park without worrying about their image associated with facilities they have no control over. ;)
  7. radionate

    radionate Well-Known Member

    Did this really happen?
  8. CaptCrouton

    CaptCrouton Well-Known Member

    Okay, if the day care center is using outdoor murals of Disney Characters in the Florida area, I can see the issue. It's essentially linking itself to Disney World. It's advertising and making money by advertising with Mickey.

    On the other hand, if I am a Disney fan and I paint a Disney mural in my kids room (or muppets or whatever) am I then violating copyright law and Disney can sue me? Or does that happen when the kids grow up and I open a daycare center? Then I have to redecorate the house? Then should I have to get rid of all the toys with Disney characters and all other trademark characters. In fact, I am better off not buying any of that stuff in the first place at all, ever, since I'm not licensed.
  9. Louis Kazagger

    Louis Kazagger Well-Known Member

    Oh yeah, this did really happen. It was about fifteen years ago though I think. An intoxicated Mickey was spouting foul language and roughed up one kid. The family tried to sue, but they were no match for the Disney corporate lawyers, and they got nothing.
  10. Louis Kazagger

    Louis Kazagger Well-Known Member

    I guess they could, but you wouldn't be profiting from the mural financially and the likelihood of them ever finding out about it next to nil.

    Yep, if you were to open your house as a daycare center, that's where the problem comes in. Because then you'd be representing your business with trademarked Disney characters and circumventing any license fees for those trademarks. The toys and anything licensed that you bought that you were to use in your daycare would be no problem. Those items are yours to do with as you like since you paid for them (the licensing cost is built into those products). You wouldn't have paid for licensing of any images you paint of the characters into a mural for your daycare. Technically you could buy a ton of Disney party banners and decorate with that I would think.
  11. Buck-Beaver

    Buck-Beaver Well-Known Member

    Yes, it actually is violating copyright laws to paint the mural in your child's room and technically, Disney could sue - but it's highly unlikely they would even if they knew about it unless you start using it for commercial purposes.

    Toys are a different issue, because they are legitimately licensed products. Having Disney toys in a daycare centre is fine, however if you were to use Disney toys to advertise or promote the centre you could be sued. There is probably a few good books on this subject out there.
  12. CaptCrouton

    CaptCrouton Well-Known Member

    Have you seen on the Armslength Productions website, their rip-off of Miss Piggy they did for Sears to promote Muppet Baby clothing? He didn't even mention Miss Piggy's name on the website but he didn't have to. It looks so close to her, most people could never tell the difference.

    So how can they get away with this? Because they're promoting Muppet products? Did Sears have permission? I guess they must've. It just seems odd, that's all.

    Oh, if you don't know what I'm talking about see armslength.com and click on <portfolio> then click on <caricatures> and finally <Sears:Miss Peggy Darton>

    Anyway, I don't know about such stuff. I guess what you can get sued for is so gray that none of this makes any sense. I think there are too many laws, period. There should be a limit on how many laws a particular government should have.
  13. Buck-Beaver

    Buck-Beaver Well-Known Member

    I'd be careful to group David Pannabecker, who is a fairly well-known and by all accounts respected member of the US puppetry community in with people making Muppet puppets to sell on ebay.

    From what I know of this, Sears had a licensing agreement a few years back with the JHC and Sears was basically hiring David and his people to come in and do some jokes poking fun at Kermit and Piggy. I can't believe David would have done it if it wasn't completely on the up and up.
  14. Louis Kazagger

    Louis Kazagger Well-Known Member

    Also, you've got to remember that the freedom of speech and artisitic expression protects people from getting sued when trademarked characters are portrayed in parody or satire, as Hermit the Frog and Ms Peggy Darton were by Sears. Plus in the article on armslength it even says that Sears had a license with JHC, so I'm sure they had permission as well.

    That's why you can watch an episode of the Animaniacs cartoon (done by Warner Bros.), with blatant ripoffs of Kirk and Spock from Star Trek in it (owned by Paramount), and Paramount doesn't sue the pants off WB for trademark infringement, because it's satire.

    I'm not so sure that the gray areas that you describe lie in what you CAN get sued for so much as in what a corporation will expend resources TO sue you for.
  15. CaptCrouton

    CaptCrouton Well-Known Member

    Before I rebut, let me say that David Pannabecker might be the greatest guy in the world. I know nothing about him. But I detect a major double standard in your arguments. Let me also say that after reading my post, I sound ticked off at you but I'm really not. Just want to make sure this isn't personal or vindictive.

    Let's look at the evidence...

    1) This Miss Piggy imitation is for commercial purposes. This is more than a mural on a bedroom wall. This is a nationally recognized puppet maker using near replicas of major Muppets for performance for an internationally known company. You may have heard of Sears once or twice. There was a boatload of money made here, more than our Count maker could ever net on ebay.

    2) The images in question are used in the portfolio of Armslength's commercial website. So he's used it commercially and now for "representing your business with trademarked Disney (actually Henson) characters and circumventing any license fees for those trademarks." And he'll use it for the rest of his life.
    I was quoting you in another post here, so the grammar goes with another context. But you understand.

    3) Now if I were Count Puppet maker "B" and I went to court, I would cite Armslength creator "A" as a pretty decent precedent for making money off of Henson stuff. Another argument of yours, only much more likely to occur.

    Either it's the "He's a celebrity so it's okay" reasoning, or alot of the things you've said doesn't really wash.

    Now after all that, how can your grandma get busted for making you her best attempt at a Telly Monster puppet as a birthday gift?:confused:
  16. Louis Kazagger

    Louis Kazagger Well-Known Member

    If I had to bet I'd say Pannabecker has permission through the Sears/JHC licensing deal. And I haven't come away thinking you were ticked. We've just spun this copyright discussion off the Count puppet on ebay, and I find it interesting.

    Strangely, here's an email that a friend of mine sent me today (he has no idea I'm in this copyright discussion on the forum). Very relevant to our discussion I'd say.

    "The Associated Press moved this story today. The story is a cheap
    rewrite of a similar story that appeared in USA TODAY last week.

    It's not just Paramount that cracks down on copyright issues...


    Baseball Cracks Down on Web Sites
    Sept. 2, 7:39 AM (ET)


    NEW YORK (AP) - Back in 1996, 14-year-old Bryan Hoch launched a Web site
    devoted to his beloved New York Mets. Four years later, New York Yankees
    fan Jim Frasch did the same for the Bronx Bombers.

    This summer, with baseball seemingly consumed by the just-resolved labor
    dispute, the two superfans were stunned when Major League Baseball tried
    to bench their sites and those of at least two other fans.

    Bob Andelman, creator of a Tampa Bay Devil Rays site, responded to the
    cease and desist letter he received with a disclaimer:

    "As you might guess, this Web site is not endorsed, enlightened or
    encouraged by the Tampa Bay Devil Rays, its owners, management, players,
    or even Mac, the dancing groundskeeper."

    Hoch, on the other hand, became the Patrick Henry of cyberspace fan
    sites, opting for the death of his site rather than surrender his
    perceived liberty of content.

    It's business, not personal, baseball officials said. They moved against
    the four Web sites over the alleged use of team logos or trademarks to
    draw site traffic or turn a profit.

    "We encourage fans to speak about baseball and to produce Web sites,"
    said Ethan Orlinsky, senior vice president and general counsel for Major
    League Baseball Properties. "We're simply asking they do it within the
    confines of the law."

    The recipients of the letters sent in July and August take a different
    view: It was like Roger Clemens firing fastballs at kids from the Harlem
    Little League.

    Ray Kerby ofhttp://www.Astrosdaily.com said Major League Baseball
    Properties was upset by a display of vintage Astros logos he had in a
    history section on the site. He was going to fold his site, but a flood
    of supportive phone calls changed his mind.

    "At a time when major league baseball needs to be reaching out to their
    fans, they don't even know what their attorneys are doing to undermine
    that," Kerby said.

    Andelman was admonished because his Devil Rays
    site,http://www.emailtherays.com, did not fulfill its tongue-in-cheek
    promise to forward fans' e-mails to the team.

    Major League Baseball Properties says it's simply protecting itself from
    exploitation, but some fans think it went too far.

    Frasch sells advertising on his site,http://www.bronx-bombers.com, but
    said it's not even enough to cover costs. And Hoch said he sold all of
    $16 worth of merchandise at his site - including $12 spent by his girlfriend.

    Both miss the point, Orlinsky said.

    "The defense of 'our site did not turn a profit' does not address the
    issue of commercialization," he said. "We're not sending letters out willy-nilly."

    The NFL takes a less aggressive approach.

    "To the extent that it's purely a noncommercial site devoted to
    commentary about the team, we're supportive and happy that fans are
    excited about our sport," says Paula Guibault, NFL senior counsel. "It's
    not an issue for us."


    Of course, even this story misses the point. The REAL reason these big
    outfits crack down on fan-run sites is in order to protect their
    copyrighted trademarks. Copyright law states that the owners must
    vigorously pursue any unauthorized use of things like team logos and so
    on. If a third party can come along and prove that, say, Major-League
    Baseball knew about Joe Blow and his use of the copyrighted content and
    MLB didn't do anything about it, then they can make a good case for
    saying the content has moved into the public domain. Which would be a
    disaster for MLB. This is the same reason you hear about the Walt Disney
    Corp. forcing day-care centers to paint over murals depicting Mickey Mouse.

    It's not great, but it's the law.

    There IS another solution, though, and this was actually mentioned in
    the aforementioned USA TODAY article. The other article mentioned one
    webmaster who was contacted by a MLB team, but then the team decided
    they liked his site so much they simply granted him a license. Why MLB
    and Disney and Paramount don't do this more often, I'll never know."

    Therin lies another possibility. Maybe Pannabecker was granted a limited license by JHC for these copycats.
  17. Buck-Beaver

    Buck-Beaver Well-Known Member

    The scenario you suggest - Count puppet maker defending himself using David's work - wouldn't fly in court because the two situations are really apples and oranges.

    Any dispute the JHC company could have with Armslength/Sears would be over violating the terms of Sears' license (and for all we know they had permission). The JHC's dispute with the Count puppet maker would be over trademark infringement. It's two diiferent problems.

    The distinction is made because David was employed by Sears, who had a valid license from the JHC and a contractual relationship with them. If the spoof did violate the terms of the licensing deal, Sears is at fault legally because they comissioned the work.

    Even if JHC went after David, even though Sears is at fault, he would just have to do prove he did a reasonable amount of due diligence (e.g. checking to ensure that Sears had a license - which they did) and he would be OK and the blame falls back to Sears.

    The Count puppet maker is a different story because he/she and whomever they sell to is without a license or any kind of agreement with JHC. Now they could try to argue that they "thought" they or somelse had permission or that it was OK but that wouldn't work because ignorance is no excuse under most laws.

    There's no double standard here, it's just two different situations from a legal perspective.

    As for the portfolio issue, David was doing work commissioned by someone who had a legitimate license from the trademark owner. He can't be making and selling those puppets on Ebay, but he can say what Sears hired him to do and have pics on his website. See the difference?

    I don't know David personally but the reason I pointed out that we shouldn't be quick to judge is that professionals in the field, though they are as fallible as the next guy, usually tend to make sure their butt is covered in these situations. There are exceptions to this rule I'm sure but generally professionals who don't do that usually don't work professionally very long.
  18. Buck-Beaver

    Buck-Beaver Well-Known Member

    On the issue of the MLB website(s), the kids are actually in the wrong legally. :(

    However, while MLB may be legally right, the ethics of suing 14 yr old baseball fans is pretty questionable. :mad:
  19. CaptCrouton

    CaptCrouton Well-Known Member

    I know I'm turning a corner in this conversation but...

    The irony of the situation is that all the legal schmeegal stuff makes me want to cease and desist from giving Disney or whoever my money. Yet, fan sites seem to spark enthusiasm to buy merchandise.

    Muppet Central is a case in point. I don't know where MC stands as far as vulnerability if Henson wanted to sue, but certainly this website alone has caused me to buy Palisades figures and soon the KSY DVD.

    Honestly the Henson website itself didn't serve that purpose or even the Palisades site since I never heard of Palisades before the Muppet action figures were released.


    p.s. glad nobody considered my last post hostile. I just like to make sure sometimes.
  20. Buck-Beaver

    Buck-Beaver Well-Known Member

    Oh I totally agree, it's ironic that the leading fan websites are waaaay better than most commercials ones. A few examples that come to mind are theforce.net, onering.net, The Lurker's Guide To Babylon 5 and of course, Muppet Central.

    The smart content owners know exactly what you are saying and get behind the fans instead of against them. I thought Lucasfilm's support of the Star Wars Fan Film contest leading up to Episode II was pretty cool and Peter Jackson and his crew are big boosters of onering.net (although they were pretty hostile in the beginning).

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