Everyone loves Christmas—even the Grinch wised up after years of trying to sabotage Whoville. But that doesn’t mean he’ll be a part of your upcoming holiday photoshoot.
Not so much that he won’t, more so that… he can’t…
How Dr. Seuss Stole the Grinch from Christmas
Recently, a family photographer had a holiday photoshoot go viral, only this photoshoot featured the Grinch from the popular Christmas themed Dr. Seuss book How The Grinch Stole Christmas. Well, this didn’t go over well with Dr. Seuss Enterprises, who immediately—and quite aggressively—sent a cease and desist to the photographer. Since then, the email has been making its rounds in the photography community.
But, the Grinch is intellectual property owned by Dr. Seuss Enterprises… so they were definitely well within their rights to send out the cease and desist… Still, some photographers have been a bit put off by the aggressive nature of the email from such a classic, childhood brand. No one expects Dr. Seuss to come knocking at their door in anger.
The email stated they wouldn’t need to go after any licensing fees or legal restitution, but the family photographer would have to comply with six different points in the email, three of which include:
- “Cancel any scheduled photography sessions […] media appearances, interviews, or other promotional efforts” related to the Grinch.
- “Remove and destroy any and all promotional materials for Grinch Photo Shoots.”
- “Agree to never again use the Dr. Seuss Intellectual Property […] in the future without express written authorization of Dr. Seuss.”
It’s never really a good idea to use anyone’s intellectual property for a photo shoot. Sometimes it works out, but more often than not, you’ll get the exact same outcome as this Arkansas-based family photographer. At least Dr. Seuss Enterprises aren’t seeking any damages, but some photographers haven’t been so lucky in the past…
Besides, there are so many different, original ways you can spice up your holiday photoshoots! So get back to the drawing board and get ready for the holiday season, and try to stay out of trouble with Sheriff Seuss!
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The costume sells online. You can legally buy it and take pictures. You just can’t sell the pictures. You can sell other pictures taken without the grinch though. So, you could give the pictures away for free that have the grinch in them and still make your money by charging more for the ones without the grinch. It’s all in the way you do it.
Something to be said for asking for permission beforehand regarding Copyright and Trademark use, versus asking for forgiveness afterward. He’s lucky they didn’t pursue it to make an example of him as they could have bankrupted him in legal bills very quickly. The Seuss folks probably would have said “no” as they want to control the kind of image they have with the public – but some sort of royalty arrangement might also have been possible. He should be glad he didn’t run afoul of Disney with one of their copyrighted and trademarked characters. They’re exceptionally humorless, aggressive and merciless and don’t accept any apologies.
And yet, if a company found some photographer’s photo on the internet and used it in their business marketing, the photographer would sue the company. How is this any different?
It’s not – except that a small-time small-business photographer pursuing a corporation can cost $20k and more in legal fees in US (Federal) District Court. Copyright and Trademark isn’t the jurisdiction of state and local courts. You’d best be very, very confident of winning before incurring that magnitude of legal bills. Rest assured a major corporation has their own salaried lawyers on staff. They will attempt to do everything in their power to bankrupt you out of the lawsuit by pulling every stunt in the book with depositions and other things to jack up your attorney’s hours. In general, David vs Goliath in these kinds of lawsuits end up with David losing because he’s bankrupt and homeless from the legal bill before the case ever went to trial – and the case gets dismissed because he’s standing before the judge in smelly rags with no representation, if he can even get there to stand before the judge. Yep – it isn’t any different – in principle – except the Biggie Corp with the deep pockets can steamroller the little guy who has nothing more than a single-family home, a car in its garage and middle-class income.
The guy should have known better to get permission for Trademark and Copyright usage beforehand – typically an inexpensive royalty fee if they grant permission. Same applies to many privately owned venues. There’s an art museum near me that has some beautiful grounds – and many wedding parties want photos there. Don’t try it guerrilla style by pretending to be museum visitors. They’re wise to it as it’s been attempted repeatedly. Everyone – photog, assistants and wedding party – will be in handcuffs in less than an hour. They’re fed up with it and show no mercy. You can, however, for a significant fee, get permission to use their grounds – had one wedding party that balked at paying anything and wanted to try a guerrilla shoot. I refused as I knew already what would happen from others who had run afoul of them. They were PO’ed that I wouldn’t but I found a similar venue at a nearby university that we could use.