In late March, three entertainment industry giants filed a lawsuit against a company that provides costumed characters for parties and events.
Disney, Marvel, and Lucasfilm Entertainment Company accused Characters for Hire of using their copyrighted characters, like Mickey Mouse, Disney princesses, Spider-Man, and Darth Vader, without permission.
The news sparked quite a discussion in our Kids Entertainers Facebook group as members were divided on the issue. Some rejoiced that the media giants have sought to protect their intellectual properties as this will discourage unprofessional and half-baked “character entertainers” and ripoffs, while some are concerned about how or if entertainers can actually obtain permission to use copyrighted characters in their acts. (To view the post and the entire thread, just go to our Facebook group and type ‘Disney’ in the search bar.)
Below we list the points raised in the discussion and some additional information that we believe kids entertainers, particularly those who appear as costumed characters, will find useful.
Popular Characters Vs. Original-Act Entertainers
With the popularity of Frozen, The Avengers, and Star Wars, many would like to have Elsa, Iron Man, or Storm troopers in their parties. There is a demand for entertainers who can appear as a Disney princess or a Marvel superhero as parents seek to fulfill their child’s birthday wish. After all, what kid wouldn’t want Elsa or Iron Man making a “special appearance” on their special day? So there is an obvious advantage to playing a character that the kids already know and are even crazy about—they’re usually sought and easier to sell.
The catch, of course, is that these well-known characters are copyrighted or trademarked by their respective owners. By appearing as Elsa or Snow White or even using an image of them on your promotional materials, you run the risk of being accused of intellectual property infringement.
Some entertainers argue, however, that you don’t need to use these popular characters to get booked, as you can create your own princess, fairy, or superhero character. You can be a sort of Elsa without being Elsa—just adapt your own version of an ice queen. You can be a superhero character without being Spider-Man—just come up with your own unique superpowers (a perfect opportunity to use those magic tricks you have up your sleeves).
Of course, not all parents would opt for an original character when they have the option to hire someone who can appear as Elsa or Spider-Man. That’s the plain truth. But with other clients, especially those who have heard of you from a friend or seen the multiple five-star customer reviews on your website, you can highlight and market your skills—magic, face painting, bubbles, balloon twisting, ventriloquism—and promise them a stress-free party, something that not all run-of-the-mill “entertainers” dressed in an Elsa or Spider-Man costume could provide.
Getting License to Use Popular Characters
Character-driven parties would always exist, as one member of the Kids Entertainer Facebook group pointed out. But to be able to use Disney, Marvel, Lucasfilm, and other trademarked characters legally, you would have to secure the permission of their respective owners.
The problems, however, are 1) some characters may not be available for licensing, 2) getting the permission to use those characters that are available for licensing can be pricey, especially for a small-scale kids entertainment business and a one-man/woman operation, and 3) there isn’t readily available information that details how to secure the necessary license.
The simplest recourse is to contact Disney directly via phone or e-mail. Get the necessary information here https://thewaltdisneycompany.com/contact-us/ (under Legal Permissions and Copyrights of Disney Properties) and http://disneystudiolicensing.com/
There is a way, however, to use a famous character legally without getting a license.
Transformative Use of Copyrighted or Trademarked Characters
If you transform a famous character enough that it is not just a copy of the original, you may be legally permitted to use it. Adapting a character, making changes to it so that it is so much more than the original, can be considered derivative work. Face painting designs and balloon artworks themed after popular characters but are still distinct from them may be considered examples of derivative works.
According to the United States Copyright Office, a derivative work is “a work based on or derived from one or more already existing works.” Movie adaptations of novels or plays are perhaps one of the most popular kinds of this type of material.
However, there isn’t much information online on how you can be sure that your character adaptation can be rightly called a derivative work. Also, copyright laws that cover derivative works vary from one country to another. To be on the safe side, it is best to seek legal advice when adapting a character.
With all this talk on intellectual property rights, licenses, and derivative works, it becomes apparent that there are three options for character entertainers: create or stick with your own original act, get a license to use a trademarked character, or transform the original character into something unique, something “that’s yours.” Bottom line is keeping yourself informed on what’s legal and acceptable is doing your due as a professional—and ethical—kids entertainer.