By now, if you’re a Firefly fan, you’ve probably heard the outrage heard across the ‘verse. The story goes something like this. The Firefly character Jayne Cobb’s silly orange hat, lovingly knitted by his mother, has become an iconic symbol of the cancelled-too-soon series. People have knitted their own hats for years. You see them on college campuses. You see them at comic conventions. People love their Jayne hats, and when you see one, you give a nod to your fellow Browncoat. Occasionally people put their hand-knit caps up on Etsy or other sites to sell them to other fans. No mass production. Just a few fans making pizza money.
ThinkGeek, one of my very favoritest sites of all time, decided that since there was a lot of demand and very little actual product, maybe they should do something about that. They worked with an officially licensed producer to get an officially licensed Jayne’s Hat in their store. It’s not an exclusive item to ThinkGeek, but ThinkGeek had a hand in designing the perfect silly orange hat for fans. It’s suitable for both head warmth and finding all the cool people who recognize it. Shiny!
One problem. Now that it’s an instant money-making item, Fox has started issuing cease and desist letters to those little Etsy shops that have been selling the product for years. Etsy chose the path of most butt coverage and has been reportedly shutting down stores, not just issuing warnings or delisting the offending items. Stores that sold non-hat related Firefly fan merchandise have also been reportedly shuttered – just in case.
Yes, it completely sucks to have your Etsy store shut down for an activity you thought was fine for years and years, but the truth is that those stores were making money off of someone else’s intellectual property, no matter how rich they weren’t getting in the process.
It was always a legally gray area, and as soon as you call it “Jayne’s Hat” or mention the series from whence it came, you’re riding on the coattails of a show you didn’t make. Sure, Fox makes everyone mad for having cancelled the show in the first place, but it was their show to cancel, and it’s their show to license even after it was cancelled. Yes, the optics of closing down mom and pop stores is bad, but if they don’t defend their license, even against the small stores, they could lose the ability to defend it against the big ones. Update: an actual IP lawyer explains how a lowly hat can become a trademarked item.
The way I see it, this whole Jayne’s Hat issue actually has a silver lining for Firefly fans. How, you say? You know what you get when you take a cancelled science fiction show with a loyal fan base that likes to spend a lot of money on licensed products? Maybe you get Star Trek the Motion Picture. Maybe you get the eventual resurrection and re-imagining of your universe into a vast series of books, comic books, cartoons, TV shows, games, rides, products, and movies. Yes, it could happen. Some of it already has. Spend your money on licensed products, kiddies. It’s a story that is too pretty to die.
Furthermore, ThinkGeek has taken a lot of unfair flak over something that totally wasn’t their fault. They had nothing to do with Etsy stores being shut down. They just wanted a cool hat, and they played by the rules to get one legitimately — just like they did when they made the coolest Tauntaun sleeping bag, ever after overwhelming fan demand. I want to see them bring more super cool, super creative fan products to the market. It would be the best targeted weight loss plan ever (if the target of all that weight loss was my wallet.)
After all the kerfluffle over the hats, ThinkGeek has issued the following statement:
Browncoats, we hear your concerns about the cease and desist on Etsy Jayne Hat sellers!
We weren’t involved in that process, but we have reached out to FOX and we’ve heard what you’ve had to say. As a result, we’ve decided to donate the profits from all Jayne Hat sales on our site to Can’t Stop the Serenity, a Browncoat charity dear to ThinkGeek’s heart that raises funds and awareness in support of Equality Now. We’ll continue making that donation until we run out of stock.
We hope the Hero of Canton himself would approve.
Honestly, they didn’t have to do this, but it does make them big damn heroes. Speaking of ThinkGeek charity and big damn heroes, be sure to pick up a Neurodiversity shirt from ThinkGeek to go with your hat. It’s not Firefly, but the profits from the shirts sold in April will go to the Autistic Self Advocacy Network.
From everything Joss has said there won’t be another movie. At least not with him. Which makes it seem unlikely there will be another movie.
Actually, from everything he’s said, there won’t be a movie from him right now.
As a knitter – and as a writer – I have to disagree with you. This is a very basic, simple and common ear-flap hat pattern with a pom-pom on it, in a particular set of commonly available colors. People have been knitting similar, and possibly identical hats, for years. Intellectual property? No. Sorry, but no. This is a common hand-crafted item they are trying to claim for their own. I suppose the name of the thing might be intellectual property, if you name isn’t Jayne. However, to me, this is just another instance of a big greedy corporation trying to see how much they can grab, and how they can browbeat small business who can’t afford to fight them.
I don’t see it as any different than if the BBC suddenly decided that a red satin bow tie was their intellectual property just because Dr. Who wears one and fans want to dress like him.
I know that copyright and intellectual property are important issues: I don’t want to downplay this – I write, myself. However, I think that frivolous instances like this actually distract from the problem of real copyright/intellectual property infringement. People should stick to their rights for stories, books, photographs, art, and truly inventive knitting patterns. Out-and-out theft of an original idea (especially if the thief tries to pass it off as their own) is never right. But trying to take credit for a common item is not okay. If there were a particular branded graphic image involved, I can even see that. But for a hat in a certain stripe pattern? Not so much.
What’s next? It makes about as much sense as the ghost of Bram Stoker coming back and claiming all authors of vampire novels are guilty of copyright infringement, especially those using some version of Dracula in them. Never mind. It’s old enough that it’s in the public domain. Oh! Wait! Universal made the Bela Lugosi Dracula film in 1931; that is still within the US copyright period. By the precedent Fox is trying to set, Universal could sue hundreds of authors and filmmakers – everyone that has used Dracula, or the idea of vampires, since that date.
Let’s not jump on the Infringement Bandwagon just because *gasp* “Someday it could be MY stuff that’s being infringed, and OMG, I have to make sure that there are no loopholes and no one can even think about the same stuff as anyone else and everything has to belong to someone!” If you think that way, you could end up on the wrong end of a Cease-and-Desist letter yourself, for some innocent inclusion of a common thing in some of your work. Stick up for the small guy. Stick up for the idea that some things are now, and ever have been, common items, and not someone’s intellectual property.
It’s not copyright that is at issue here but trademark. Different beasts. The hat is not the intellectual property. The name is. Knit silly orange sherpa hats all you like, but do not call them Jayne’s Hat or mention Firefly the series. Example. Red satin bow ties would not be a problem. Calling them Doctor Who bow ties would be. That is the difference. When you start calling it a Jayne’s Hat or Doctor Who bow tie, you’re capitalizing on a property you don’t own and didn’t create, even if you passionately love it and feel “ownership” as a fan.
Unless your name is Jayne! (/smart remark)
Okay, so you are claiming trademark. Trademark is intellectual property, which I included in the above reply. In my mind, you can use unique items or names as a trademark, but when you include common ones, you are overstepping.
The problem is, Fox is claiming that a certain name – which can belong to people other than the character on the Fox show – placed on a common item, is their property. If advertisements/descriptions for the product included the name “Firefly,” then that is different. Firefly is the name of the show that belongs to Fox. I can see objections to that. (Dr. Who, if applied specifically to the name of a product, falls into that category. Amelia, not so much.)
Or, perhaps, if something were designed to be a unique association with a product – again, I will point to something with branded graphic art on it, unique art specifically created to be a trademark. A hat that become popular does not fit into that category, even with the Name on it, since it does not appears to have been designed to do anything but be a fun item for a certain character to wear. Fox waiting until the hat became popular to claim intellectual property indicates to me that their intent was not to create a trademarked item. (Any company that wants to do that lines up their marketing well in advance so that they can release products at the same time (or before) the launch of the show.) To allow the production of the hats to go on until now, with no objections until the item became popular, simply smacks of corporate greed.
My point is, where do you draw the line? If this were a clearly original construction, i think they would have grounds for dispute. If the name attached to it were unique, then yes. If it were named “Firefly Hat,” then yes, they would be within their rights.
And if you allow this sort of territorial nonsense to go on, then all of a sudden you’ve started down that proverbial slippery slope. A slope where Joe Smith sees an opportunity and protects the name Smith because he uses it on the name of (insert-common-product-type-here) that he makes, and he wants people to think of his product whenever they see the name Smith. Let’s face it, we’ve seen things like that happen.
I’m not a lawyer, let alone an IP lawyer (and I don’t even know that Fox was using trademark as the basis for their C&D letters) but the USPTO seems to disagree about whether or not common names can be trademarked. A certain nickname for Barbara when placed on a doll or toy will land you in a heap of trouble with Mattel, for instance.
I’m also not saying it isn’t a dick move on the part of Fox to go after the fans for selling cosplay items. …But selling the items is exactly where that line is, even if it took Fox years and years to get there. They’ve done that with other things – like they shut down a role playing game club when they licensed the official RPG – many years after the series was out.
It’s not a slippery slope, btw. Sew hats. Give hats. Sell silly hats, but don’t sell “Jayne’s Hat from Firefly,” because that’s not yours to sell.
Thank you for this. I worked for years in licensing and the ins and outs of copyright and trademark are my happy hunting grounds. I’ve had to stop going to Etsy altogether because of how infuriating it is to see people stealing other folks’ property. There are countless stores selling Butterbeer soap, weeping angel necklaces, etc. Just because you’re small time doesn’t mean you aren’t stealing.