Happy the Clown and other Bay Area clowns received threatening letters last week from Cowan, DeBaets, Abrahams and Sheppard LLP, a New York firm, telling the clowns to cease and desist from wearing costumes that look too much like characters to which Cowan's clients have the rights. Purple dinosaurs, red dogs, train conductors and others are within the scope of the scary letter, which states that "Plaintiffs will not tolerate costume infringement," and threatens the entertainers with a lawsuit unless they surrender the infringing costumes, pay $100,000 each and agree never to use said characters again.
If I had known there were clowns out there with $100,000 in their pockets, I would be robbing a lot more clowns, I can tell you that.
"I was crying," said the ironically named Happy the Clown, who runs some kind of clown business in Boulder Creek, California. "One clown threatened suicide, but we talked him out of it." That was Depresso the Suicidal Clown, though, so you can't really blame that on the litigation. Other area clowns were also distraught, some claiming that they make just enough money to survive anyway and others saying that they had to adapt to what children wanted to see. "Parents don't always want to hire a clown or pirate," said one. She said the problem began when characters such as Barney, Clifford the Dog and Bob the Builder led children to demand non-clown characters at parties, and so parents had no option but to comply because "[t]hey want to please their children."
This clown was employing a common litigation strategy called "Blame the Children." Works every time.
The San Jose Mercury News asked law professor J. Holmes Armstead (his real name, not a clown name) for comment on the letters. Armstead opined that they would "have a chilling effect on children's birthday parties in the area," as well as on the clown companies themselves. "These little kiddie shows typically make a hundred bucks a show," said Armstead, who should know, since he is a professor of national security decisionmaking and international law at the US Naval War College in Monterey. "These are not folks who are capable of going into San Francisco and hiring a 100-person law firm to represent them." Actually, these are folks who are probably capable of going into San Francisco and winning an election to seize control of its city government in order to pass clown-protection legislation, so let's not worry too much about them. In the meantime, any takers on pro bono clown representation?
If so, you may want to contact Twinkie Dee Star, clown and director of five western states for the World Clown Association. Star stated that she felt the lawyers and their clients were overreacting. If anyone dresses as a popular character, she said, "it's not because they're trying to shortchange anybody. Most clowns do this pretty much out of the goodness of their hearts." Goodness, and the desire for 100 bucks.
Opinions in the Mercury News website's forum on the topic seemed to be split fairly evenly along pro- and anti-clown lines:
- What this article nelected [sic] to mention is that what these clowns (no pun intended) are doing is illegal whether we would like to admit it or not. Infingement [sic] is infringement. Copyright is copyright. End of story. [Posted by "Nancy Drew"]
- I'm no legal expert, but I'd think that the clowns should join forces (even with other clowns, Elvis impersonators, etc. across the country who haven't been threatened -- you know it's only a matter of time ...), hire some lawyers and fight it.
- How on earth could anyone go after a birthday party clown for copyright infringement? The people in question are not rich...they do this to make children smile. I guess that a happy kid is worth less than a copyright on a giant red dog. Oh, and "Nancy Drew"...you are about to be served for impersonating a childhood literary and TV character. You'll be hearing from ABC's lawyers soon. Ugh.
- Once the lawyers see that the clowns they want to sue have no assets..... that'll be the end of that gouge and screw show. thats [sic] but one reason top [sic] protect yourself from any personal liability!
What'r [sic] the lawyers gonna do reposses [sic] your nose?
Perhaps J. Holmes Armstead can use his national security decisionmaking and clown law expertise to weld the nation's clowns and Elvis impersonators into an unstoppable force that will free our beloved characters from the icy grip of Cowan, DeBaets, Abrahams and Sheppard LLP. That'll be the end of that gouge and screw show.
Link: Cowan, DeBaets, Abrahams and Sheppard LLP
Link: SF Gate.com: "Let the War Crimes Trials Begin: Redressing Saddam's Persecution of Iraqi Clowns," April 9, 2003
Link: Lecture Announcement: Dr. J. Holmes Armstead, "Iraq and Afghanistan: How Clowns Got Us Into the Troubled Middle East"