At the TMCA blog, Jake Holt discusses the IP implications with the famous (?) Fashion Santa from last Christmas. I don’t remember Fashion Santa, but I’ve seen some goings on about him for the last month or so. Anyway, I don’t have much to add to Jake’s thoughts regarding copyright and trademark issues. More important, I think his takeaway bears repeating. That is that many IP issues can, and should, be resolved ahead of time with a simple agreement between parties. Yes, it may be that neither party has rights in Fashion Santa (I can’t see how a trademark gets registered in the US; there’s got to at least be secondary meaning), and both parties can do their best to claim that they owe nothing to the other party, but figuring out who has what rights is probably going to be costly.
In General, If you’re not willing to pay the transaction cost to reduce the risk of litigation, you’re probably not in a place financially to get caught up in litigation. In that case, you should refrain from whatever risky actions you are taking. Otherwise, if you’re willing to take the risk, and have the financial backing to keep your business running when litigation comes knocking, it often times makes more sense to spend some money and negotiate a deal ahead of time.
Further, and what may be the problem here, is that the parties may not have considered the popularity/future dispute and didn’t think to negotiate rights in Fashion Santa. People need to do a better job of having processes for spotting and hashing out possible IP issues, and then come to an agreement about rights/use. Considering the information age we are in, and that we now live in an economy that devalues general skills, and relies more on content creators, individualized value, and intangible assets, negotiating IP rights such as those involved in the Fashion Santa dispute are becoming even more important and widespread.
(Speaking of hip Santas, you should watch this from last year. As far as I’m concerned, this Santa is much better than Fashion Santa.)