Elf on the Shelf season is almost upon us, and for a number of balloon companies, it could inevitably spell the misery of disabled social media accounts, or worse a potential lawsuit! Honestly, any one of a number of heavily trademarked companies will pounce on the small independent companies who actually have no idea that they have done anything wrong! Unfortunately, breaking the "rules" on social media is easier than you may realise! So, are you committing copyright infringement and don't realise that you are doing it?
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| Kyrstin De Leeuw, CBA of The Balloon Store in Barrie, Ontario, Canada, creates her very own super cute Christmas Elf |
I personally have nothing against these elves, but they can have the habit of getting businesses into trouble, especially at this time of year!
What is the 'Elf on The Shelf'?
The Elf of the Shelf character actually comes from a beloved children's book which tells the tale of Santa's little elf who enters the house at Christmas time to report back each night on who's been naughty and who's been nice. This iconic character is known for hiding itself in a new location each morning and has evolved into a cultural phenomenon by which a stuffed toy elf appears in many households in the lead up to Christmas. A festive month-long game of hide and seek ensues with many children and their parents, with the little one's looking forward to waking up each morning in December to find out where the elf has got to that day.
With the arrival of the stuffed elf toy being so eagerly anticipated each holiday season, many balloon companies have realised that they too can spread a little extra cheer each year by sending toy elves out to their customers. Often, the elves are sat astride stocking filler baskets topped with beautiful balloons! This can be a really fun way to kick off the festive season for lots of families.
Ok, What's the Harm in Doing That?
While it may seem like great fun to join in the "trend", businesses must always remain wary of the copyright infringement risks that surround this iconic character. You may think 'You can't copyright an idea!', but actually you can... it's what is know as 'intellectual property' a concept which protects an original idea from being copied without the appropriate credit and requital to its creators; in this case, the authors of the children's book. The character and phrase, 'Elf on the Shelf' and derivatives of it have been copyright protected, meaning use of the phrases without express permission from the copyright owners could lead to legal action. Having recently checked, it looks like Elf on the Shelf now have copyrights on over 50 words and sayings that have some relevance to their elf character... in other words, there are very few elf related words that are safe to use in a hashtag!
The same is true for many trademarked characters, which is why when creating balloon designs, it is important to be wary of using protected names and imagery unlawfully. An example of this would be selling counterfeit foil balloons that depict popular children's TV characters. If in doubt, it is best to only purchase such supplies from approved licensees and to look out for the copyright © / trademark logo ® ™ as an indication that the supplier has express permission to license and distribute that brand.
Creating any likeness of a copyright protected character is also likely to be prohibited by law regardless of if you have created it yourself as you're still profiting off an 'idea' that isn't yours. For instance, twisting yourself a 'Mike the Mouse' character with whimsically large black ears, red shorts and white gloves could still get you in trouble with the people at Disney because you are still attempting to make money off the idea of the character which they created aka their 'intellectual property'. Your version must be different enough that it cannot be considered a direct copy.
The likelihood of a copyright owner finding an infringing image online is low if the image is not tagged with anything that links it to the trademark. So, avoid using hashtags, names, phrases and in generally any wording that is specific to trademarked characters and you're much less likely to get flagged in a copyright dispute.
How Can I Avoid Any Issues Going Forward? So, back to our whimsical elf; while the phrase and concept of 'elf on the shelf' is protected, the word 'elf' by itself isn't trademarked (it's very hard to trademark single, commonly used words...) and there's no harm in simply selling stuffed elf toys for families to use as they please...
It is definitely worth thinking about ways to still let customers know that you can offer what they're after without stepping on the toes of the established brand. It may mean getting creative with your wording for instance, 'Hide and Seek Elf' or 'Find Me Elf' and altering aspects of the idea enough that it's not considered an infringement. It is worth doing research beforehand to avoid getting you business into trouble.
So my advice to you is to stay clear of using any hashtags to promote goods and services that you offer that could land you in trouble, it is definitely not worth it!
I would like to thank Jade Fraser, Marketing Manager from BAPIA Ltd. for co-writing this post.
Happy Ballooning!
Sue
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