This investigative diary is prompted by Kos's earlier diary about Disney asserting ownership of, of all things, Santa Claus (Disney's War Against Christmas, 12-18-2006 17:36:32 PST). As everyone knows, culture chickenhawk Bill O'Reilly waxes Homeland Security bright Orange at this time of year, at the very thought that someone would commit a cultural felony against the culturally-dominant feast of Xmas. In an effort to be fair and balanced, it seemed that this news hook offered the perfect opportunity to look at a genuine point of a real war--one of patents, copyrights and trademarks.
First, if you missed Kos's excellent post, or are a little fuzzy on the details and are too full of Xmas eggnog to scroll back, here's the thumbnail sketch. A mature man, age 60, (Jump, Rudolph! Jump, Dasher!)
by the name of J.D. Worley, was a tourist in a Disney park, evidently in a Santa suit, and he looked so much like a real Santa that lots of little ones came up to him, spontaneously, and asked if he were the real ONE. Worley, evidently having been in the Congressional intern program (snark), immediately lied, in an effort not to disappoint the little tykesters, only to find himself accused by Disney officials of--of all things--Identity Theft!
As Kos noted, Disney's official asserts that the Haus of Maus has the rights to Santa Claus. Worley was detained, advised of Disney's "rights" to the Claus character, and admonished to cease and desist imitating Herr Claus on Disney property. Worley offered his own identity and persona in his defense, saying he has always been viewed as a Santa Claus character by the general public, and his fellow-travellers said the same in his defense, all to no avail. Worley was told that Disney has its own Santa character, and asserted its "rights" to same.
Well, folks, here's where it gets really interesting. You would think that if the Disney official were correct, a quick look-see into the U.S. Patent and Trademark Office records would reveal Disney's name as the undisputed owner to the rights to the name Santa Claus. Well, as sportscaster Warner Wolf is so fond of saying, if you picked Santa Claus and Disney, you're wrong! Let's go to the video-tape!
A cruise down memory lane at the Patent and Trademark Office reveals the following: the copyright for the name Santa Claus belongs to ... (drum roll!) Santa C. Claus! That's right. Santa C. Claus, employer for hire, registered Santa's Coloring Book (TX-1-216-931) 18 June 1981, published 1989.
The next three people in line for any legal rights to the Santa Claus name, as far as I can tell from a search of the PTO system, are the following:
1) Catherine Miceli, who produced the Christmas Morning Letter, Santa was here, registering Santa Claus as pseudonym (TX-1-889-528), got her official registration 28 Aug 1986--or 5 year's after the Santa C. Claus coloring book!
2) Charles Bud Dillen, using the pseudonym Santa Claus, published a poem called "Words to a Christmas Song," (TXu-239-769), on 11 Mar 1986. Dillen claims that the poem was Santa favorite."
3) George N.B. Keller, a very distant third choice, came out with "Claus, Santa and Me," (TXu-1-256-499) on 1 Nov 2005, or about 19 years after these other two filed, but clearly under the Santa Claus pseudynym.
Now culture mulchers, let's consider what might be the legal ground occupied by the Disney side. When I searched the Patent and Trademark database, using the search-terms "Disney and Claus, Santa," the elephant produced this Maus: a reference to Santa Claus contained (gasp) in the pagan classic Pocahantas! To wit, P-1-066-327, with an effective registration date of 1 April 2003. But here, CSI fans, the legal waters get a little murkier, as the application also makes reference to an earlier date of SOME of the material as 9 Oct. 1975. But since the thrust of most of the work is on Pocahantas, chances are that it would be hard for even the legal magicians behind Fantasia to credibly maintain an ironclad patent, trademark or copyright claim to Santa Claus out of this mostly non-Christian material!
By now, I am considering a couple of things. Maybe I could sell this admittedly cursory research to Bill O'Reilly, for a quick show or two, and help jazz up his sales of the book Culture Warrior, and maybe beef up the ratings of the Bill O'Reilly TV show, which kinda took a hit (down one million viewers, I thought I read) after the sex scandal lawsuit brought by a former producer. Bill's just back from a "meet and greet" with the troops in Iraq, and probably doesn't have much time to do lots of research (See also Al Franken on the subject of O'Reilly's research).
Then, as long as I'm thinking money, maybe a quick shot before Xmas, I thought I could sell it to Disney. But I realize that its in-house lawyers could do the job with a Lexis/Nexis search, and would probably farm out a lot of the work to lawyers around the world, who probably have kids too, so why take $200 or more an hour out of their mouths. I'll just post here, and I'm sure the trickle down effect in the economy will surely reach me by Christmas! It's a small world after all!
Now I'm sure all the movie afficianados will be spitting out the names of all the things related to Santa Claus that they think Disney owns the rights to. And, except for the golden key called the copyright date, they would have a point. There's Tim Allen in the Santa Clause, in the sequel Santa Clause 2 (which, copyright lawyers should note, features a Pseudo-Santa! Paying attention, Mr. Morley?), and Santa Clause 3 (The Escape Clause) with Martin Frost as Jack Short, or something like that ... and by the sheerest of cosmic co-incidences currently appearing in popcorn-strewn theaters on all continents ... But moviegoers best watch their brand-name Xmas purchases, if Coca-Cola decides to take on Disney over this Santa Claus brand-name thing, since the secretive Atlanta colamaker has it's own Coca-Cola Santa, first made famous by Hadden Sundblom. There could be the makin's of a real cultur war, O'Reilly!
And I'm sure that record collectors will remind one and all of Hillary Duff's album, Santa Claus Lane, on Buena Vista Records.
Now there's no doubt, laddies, that Disney's 101 legal Dalmations ha' na' been shy ter file something involving the Santa Claus name in many of its works. Ya ca' fin' mentun a' it in recordings, books, Disney channel stuff, numbering in the hundreds. There are evun Disna characturs tha-ur inna shape of Disney Santa Mickey, which, if in mint condition, a collector would considur a Mouse-ter-piece. And for those who could care less about Auld Layng Syne, there are the Marx toys, and the Game Boy Advance characters, including some sort of Santa.
Of course, there's the date thing. But if the 1981 date isn't good enough to save Santa Crusader Worley's, er, bacon, then he can reach as far back as 1860, to the original Thomas Nast cartoon of Santa Claus. The name might not be registered directly to Santa C. Claus, but the rights certainly came well before Mickey became a gleam in Walt Disney's eye.
On the Disney side of the fence, it seems that the practise in the parks is to have one designated Santa Character per shift, per park, from November to Xmas, in only a few specified locations, mentioned on their websites. But such vagueness as to the actual identity of the Disney Santa Character, of course, makes it hard to prove identity theft. Is the Disney Santa actually Caucasian, or some other ethnic identity block? You begin to see the difficulties. As the late great lawyer, F. Lee Bailey said, a lot of cases are won or lost in the identification phase.
Then, of course, there is the legal question of standing--that is which Santa has a right to sue. No jury of Santa's peers (elves live a damn long time, remember) would believe Santa would maintain a permanent residence in California, even with global warming! Moreover, there is an international dispute over Santa's residence in the northern climes. On the North American continent, the custom has grown up around the legal residence of the North Pole, with mail going there, picked up near Fairbanks, Alaska. Residence is determined by legal mailing address.
But in Europe, the Scandanavians maintain a mailing address for Santa somewhere north of Finland (it's late, and I have trouble with umlauts and other grammatical landmines). So there is a genuine dispute as to Santa's legal permanent residence, which could really muck up the court case!
There is the technological possibility that the residency dispute could be settled by NORAD, which could use their tracking system to monitor the aeronautical elf's final apogee to plot the azimuth for Santa's end of shift LZ. But it is rumored that they lean toward the North American version, and deliberately do not schedule any Nordics on duty for Christmas. I just report; you decide.