Friday, November 19, 2010

What Would Jim Hensen Do? Or, Will The Real Kermit The Frog Please Stand Up?

Kermit The Frog's Star on the Hollywood Walk of Fame

So a good friend send me an email after my post on Monday, asking if I'd considered that the Kermit The Frog "It Gets Better" video I shared wasn't an official Kermit The Frog video from Jim Henson Studios/Children's Television Workshop/Sesame Street. It's a good point.

I don't know Chris Tuttle (who posted the video), but yeah, I guess it's probably someone who got a really good Kermit puppet and did the voice and video themselves. Because they probably wished there would be an official Kermit the Frog "It Gets Better" video out there to talk to kids about being isolated and bullied and urge them to speak up - to urge all of us to STAND UP and make things better.

And there was no official video.

So this is sort of a guerilla public service message.

I think there are a bunch of issues to untangle here.

1. While anti-bullying seems a universally accepted and important message, isn't it a slippery slope to say it's okay to take someone else's intellectual property and image and use it to promote an idea if they haven't approved it? What if the PETA people did a video where Kermit spoke up against eating meat - and became a guerilla vegetarian spokesfrog? That might be fine for vegetarians, but not so cool with the people who control Kermit.

2. If anti-bullying is such a universally accepted message, why hasn't there been an official Kermit The Frog "It Gets Better" video? Why haven't they had the real Kermit STAND UP in that way?

Do you remember what happened back when PBS shot the "Sugartime!" episode of "Postcards of Buster" that showed a two-mom family? Margaret Spellings (the then Secretary of Education) wrote a letter to PBS basically threatening them and asking for the government's money back for that episode! Because there's a public funding element to PBS/CTW/Sesame Street, there's a vulnerability to the prejudices of lawmakers - and that prevents some really great stuff from happening.

3. There's a fair-use right for comedy/satire - should there also be a fair-use right for public safety? I mean, Kermit's done ads for the National Fluid Milk Processor Promotion Board (nonwithstanding there are people who don't want kids drinking so much cow milk) - but I bet they got permission.

4. Why haven't Ernie and Bert done a "It Gets Better" video?

5. What would Jim Henson do? We can't ask him because he died back in 1990, but what would be in keeping with his spirit?

It will be interesting to see if the guerilla public service announcement video is allowed to stay up at youtube. Maybe PBS/CTW/Sesame Street/The Jim Henson Company can't come out and officially approve this message, but they can let it stand as is. Or will they "officially" do something about confronting bullying that reaches outside their preschool audience? Or will they just hire Chris to help spread the good word?

Because at the end of the day, I do love this Kermit the Frog "It Gets Better" video. But I admit, it's a tangled situation.

What do you think?



Unknown said...

The rights to the Muppets actually get kind of murky, from my recollection. The major Sesame Street characters are the sole property of CTV, but I think that Kermit was kept separate in some ways because Jim Henson knew he was going to be used in other things, and the rights for the other Muppets are owned by Disney. So that may be part of why there is no official Kermit "It Gets Better" video - you're dealing with a corporation like Disney rather than PBS. And hopefully Disney will recognize this is a not-for-profit video and won't hassle Tuttle about copyright infringement. That's why PETA wouldn't be allowed to get away with using Kermit - PETA wants to get people to donate money, not to mention they've done some very family-unfriendly advertisements that whoever ultimately owns the rights to Kermit probably doesn't want to be associated with.

As for why Bert and Ernie haven't chimed in, I bet a lot of it has to do with the Conservative backlash against public broadcasting right now. Any sort of It Gets Better message from anyone on PBS would be interpretted as indoctrinating kids to be gay or something stupid like that. Funding for all public broadcasting is being threatened for political expediency, and I can't quite blame PBS for wanting to avoid controversy if possible - especially if a fan like Tuttle has already put together a video like this they can just let stand and not challenge.

ivanova said...

IANAL, but it seems like Kermit the Frog is a public figure (even though he's a puppet and someone's intellectual property) and so it could be legal to parody or impersonate him for the purposes of entertainment. Hasn't Kermit been a guest on various late night comedy shows, where they pretended he was not a puppet? How does the law treat fan fiction or mashups? The Kermit It Gets Better video doesn't seem like the kind of thing that could cost his owners money. BTW I think Kermit and the other non-Sesame Street muppets belong to Disney now. I bet at least 60% of videos on You Tube are violating the law in one way or another, which just makes me yawn.

If you want to watch a legitimate Sesame Street video that in my opinion comes as close to being a gay pride song as they are likely to do, you can watch "Proud To Be A Cow."
Gladys the Cow was performed by Richard Hunt, one of the early muppeteers. He was a very talented gay man who died of AIDS in 1992.

Alice B said...

I too love Kermit. But he isn't a public figure, he's an invented character, like Dora the Explorer except in puppet form. So the problem may not be copyright but trademark, and whoever owns the rights to Kermit will want to protect their trademark. Whether they do anything will be up to them.

An important point, even public figures can stop people from using their likeness to promote things they don't want to promote. The exception is for parody, but this video wasn't a parody of Kermit. It was meant to be Kermit, giving a message to kids, and that would be up to the owners of Kermit to decide whether they want Kermit to do so.

Also, whether or not the use of Kermit was to make money, isn't relevant here. There's a misconception that a violation of intellectual property is fair use if no one makes any money, or intends to make any money on the use. That's not the standard. "Fair use" is a specific exception to copyright law that covers quotations in certain contexts, for certain purposes. That no money was made may be evidence that it fits under the fair use exception, but it an exception in itself.

AliceB said...

It's: "it is not an exception in itself."

Sorry about that.

Greg Pincus said...

Big companies (or anyone, really) can't pick and choose when they enforce copyrights or trademarks - they either do or they don't. This is why they so often do things that look so bad (like sending a cease and desist order to, say, a school that tries to use a cute but "owned" character on a t-shirt to raise money). It doesn't matter that we like the message in this case. It matters only that it is out there existing and being seen.

The question of why there's no official video is also interesting, and probably political/financial at its heart. If an official video did exist, I'd hope it would sound a lot like the video we're talking about. Irony?!