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Sometimes, art imitating life yields some strange results. In 1981, (animated) newspaperman J. Jonah Jameson ran the headline, “threat or menace” when discussing the masked Spider-Man in New York City’s (fictitious) Daily Bugle. Today, such a headline would not seem out of place on recent covers of the New York Post.
Between “Spidey’s” recent brush with the law, “Cookie Monster’s” accosting of small children, and “Elmo’s” arrest, New York media outlets have increased the scrutiny on buskers who frequent Times Square’s pedestrian walkways. This media attention has prompted outcries from local residents, escalations from local law enforcement, and proposals from city council members on how to curb the costumed cavalcade of characters.
These reports, however, highlight the legal gray area in which Times Square’s self-identified “artist” community operates. While many New Yorkers have likely assumed the costumed contingent violate some sort of law (be it federal, state, or city), pinpointing the exact legal infraction is trickier. The characters in Times Square do not collect payment for their picture-taking services (as the NYPD’s latest initiative made clear); rather they request “donations” for their “performance art.” The line between “donation solicitation” for art and “panhandling”–which is forbidden by city ordinance–is far from clear.
Moreover, as Paul Goldstein, a Stanford Law School IP professor, explained to the New York Times, the busker’s characterization of themselves as “artists” complicates matters. As a “non-commercial” artistic impersonation of “Mickey Mouse,” the buskers may arguably not be in competition with Disney’s iconic animation. Such a usage could stack up comparably to nominative fair use.
Even if the argument that the usage is not commercial fails, there is an alternative argument to consider: that the existence of “Elmo” in Times Square is not widespread enough to “adversely affect” the potential market for Sesame Workshop or Disney-sanctioned products. See Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1523 (9th Cir. 1992). The orders of magnitude in earnings when considering such an argument though, make it look patently ridiculous on its face. Disney’s most recent quarterly income filing was for $2.245 billion dollars. Assuming 65 business days a quarter, Disney’s daily income was roughly $35 million dollars. For comparison, the average daily income of an individual busker–between $50-$100 dollars–equates to an hourly income below minimum wage. Any adverse effects to Disney’s bottom line due to busking appears minimal.
That is not to say arguments could not be made supporting adverse impacts on the copyright holders. Disney would have a particularly strong case. Disney’s Theatrical Group–which runs “Aladdin” and “The Lion King” in venues adjacent to Times Square–has told reporters and trade groups that sales among “local theatergoers” have declined as a result of audience members being “overwhelmed” by costumed characters.
Also factoring into the litigation equation is a problem of scale. Any infringement claims are largely difficult to pursue here, as individuals are difficult to identify, serve with court papers, and are functionally judgment-proof in most instances.
In terms of finding a legal target, however, those scale questions may be made easier in the near future. Recent media stories have centered on the buskers’ newly formed coalition: New York Artists United for a Smile. Backed by La Fuente, a non-profit committed to organizing immigrant workers, the organization is not a union per se (since the “artists” are, by their own accord, independent contractors), but a group aiming to self-regulate the costumed community and police for bad actors. Disney is notorious for suing those who misappropriate copyrighted characters, but it is (one would hope) a bridge too far for Disney to sue a nonprofit. Any legal benefit is likely outweighed by the prospect of bad press. The new association, though, may provide the copyright holders a means to communicate concerns to the busking population.
With the increasing publicity on Times Square’s costumed community, a response from political actors seems probable in the near term, as does the continued heightened presence of the NYPD. City Councilman Andy King has already put forth measures to require Times Square buskers to attain licenses to continue their activities; whether such measures pass is an open question as it may create additional enforcement hurdles (how do we separate good “Elmo” from bad “Elmo?”) and First Amendment issues.
In the long term, though, even these new measures seem unlikely to deter people from taking pictures with their costumed favorites at, what even J. Jonah Jameson would likely agree is, one of New York’s biggest tourist attractions.
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