The Santa suit

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(Host) Believe it or not, last week commentator Cheryl Hanna got a call from the North Pole and she’s here to tell us about what’s been on Santa’s mind.

(Hanna) The call didn’t come from the Santa Clause himself, but from Justin, the elf who serves as chief corporate counsel for North Pole operations. Justin and I went to law school together, and he wanted my opinion on a legal matter. It seems that Santa’s been concerned with the unauthorized use of his likeness. Now, it’s true that Santa can be in many places at once – like 1,000 shopping malls on a single day – because, well, suffice it to say that he has special magical powers. I can’t say anything more than that because of client confidentiality.

But every once in a while, someone rents a Santa suit and goes around jingling bells and shouting ho, ho, ho. Santa’s wondering if he should start authorizing the use of his image to avoid copyright confusion. Now, Santa is not the litigious type, and if he did win any money in a lawsuit, he would of course donate it to charity. But Santa’s good pal Barney – you know, that big purple dinosaur who sings silly songs, and is a kind friend to everyone – recently won a copyright infringement suit. This case has Santa wondering what his rights are.

Barney sued Duffy the Dragon, a guy who rented a purple suit to people who wanted to look kind of like Barney. To prove copyright infringement, Barney had to show that Duffy was substantially similar when viewed from the perspective of the intended audience. At issue in the case was, who was the intended audience? The grown-ups who rented the costume, or children, who we all know are really the ones dictating the decisions of the grown-ups. The Ninth Circuit decided that the child’s perspective was most important, and that kids could confuse the real Barney and a Barney wannabe.

So the question for Santa is whether children would know the difference between the Jolly Old Elf himself, and someone just posing as him. But there’s a big difference between Santa and Barney, which is why Justin and I agreed that the Big Guy should forget about it. Although it’s easy for little ones to get confused over a purple reptile, every child, and every adult for that matter, knows that you can always tell the real Santa by all the good will and holiday spirit that Santa brings to the world. That’s not something you can easily fake.

So if the Santa you see is spreading Christmas cheer, you’ll know he’s the real thing. And the one place you won’t see Santa anytime soon is in court.

This is Cheryl Hanna, wishing you all a happy, and legal, holiday season.

Cheryl Hanna is a professor at Vermont Law School in South Royalton, Vermont.

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