Intellectual Property, the Muppets and Lady Gaga

I look forward to the upcoming holiday season for many reasons. Permission to attend parties mid-week, a decadent dessert … or two … or three and the overall kinder spirit that seems to settle over everyone are just a few of the things that have me looking forward to this time of year. And, let’s not forget the television specials!

One television special that I am particularly looking forward to is the one hosted by Lady Gaga featuring the Muppets. It’s as if the powers that be called me up and said “Ryanne, who do you think should do a Christmas special together?” Y’all call and check on me if Elton John makes a guest appearance because it will be all my entertainment heroes in one show! You can read about the upcoming special HERE.

So, why is a frog one of my entertainment heroes? In thinking back, I see patterns of how Kermit influenced my life decisions and perhaps even my career choice. Kermit just wants to entertain and do so with all of his friends. He’s the magic, mastermind and creator behind the chaos. Yet, he is completely in control of the chaos surrounding him, and he always ends up producing a fantastic product.

I can really pinpoint it back to one of my favorite movies – The Muppet Movie from 1979.

To refresh your memory, this was the first full length Muppet movie. It tells the story of Kermit leaving the swamp in Mississippi, traveling cross-country to Hollywood to be in “show business” and meeting the various Muppets along the way. The antagonist to the movie was southern business man Doc Hopper, the owner of Doc Hopper’s French Fried Frog Legs. Doc Hopper had another plan for Kermit’s show business dream.

Doc Hopper saw the dancing, singing, talking frog and became insistent that Kermit serve as the restaurant’s spokesperson. For obvious reasons, Kermit was appalled by this idea. There is even a scene in the movie where Doc Hopper has used Kermit’s image on billboards to advertise Doc Hopper’s French Fried Frog Legs. Being the good intellectual property attorney, I could not find an image I felt comfortable including with this post; however, if you search by way of Google Doc Hopper’s French Fried Frog Legs you’ll find some images of the billboard with Kermit’s face on it.

I remember watching this movie on VHS and being so upset that someone would want Kermit to represent a frog leg restaurant! It also bothered me that the sketchy Doc Hopper would not take no for an answer when all Kermit wanted to do was make movies in Hollywood. Do you see where I’m going with this?

Unbeknownst to my five-year-old self what Doc Hopper was doing by using Kermit’s image in billboard advertisements in a way that Kermit did not agree to was closely linked to intellectual property law by way of the idea of right of publicity. Right of publicity, unlike copyright and trademark law, varies from state to state. There is not one blanket right of publicity statute like there is the copyright statute.

Right of publicity is married to the idea of privacy and the idea that someone else does not have the right to profit from your image. It is the right of an individual (or in this case a frog) to control the use of his or her name and/or likeness in advertising or other commercial enterprises. Depending upon how a state chooses to define this right, it can extend to everyone, not just those who have achieved celebrity status.

It should be noted that outside of image that one’s “likeness” has been extended to things that are not a person’s face or name. A likeness can include things such as a person’s voice in the case with Bette Midler in Midler v. Ford Motor Company or catchphrases as demonstrated in the case Carson v. Here’s Johnny Portable Toilets, Inc. Finally, in this Hollywood story it bears (enter stage left Fozzie Bear saying “wocka wocka”) pointing out that if Doc Hopper had used Kermit’s image after he had achieved fame in Hollywood then Doc Hopper might also be infringing on the Muppet trademark since Kermit is a trademark associated with the overall Muppet brand.

So there you have it. Unbeknownst to me or my parents at the time, Kermit gave me my first glimpse and interest into intellectual property law. In addition, Kermit taught me the importance of dreaming big dreams, to be leery of fast-talking southern business men and to always travel with a colorful cast of characters. Oh, and to not forget that life is like a movie, and it’s up to each of us to write our own ending.

What childhood loves influenced your career choices? Take part in the conversation below and Stay Tuned In!

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8 thoughts on “Intellectual Property, the Muppets and Lady Gaga

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