DIY Jayne Hat Makers Face the Wrath of Fox : A Lazy Armchair Legal Analysis

In a startlingly ignorant act of geek antagonism, 20th Century Fox (the owners of the rights to Joss Whedon’s rabidly beloved Firefly sci-fi western television series) has issued cease-and-desist letters to Etsy sellers of handmade Jayne hats (which are really nothing more than orange and yellow beanies with earflaps and a pom-pom on top), even going so far as enlisting Etsy in closing the shops of Etsy sellers who offered the offending item for sale.

Needless to say, fans (some of whom call themselves “Browncoats”) are pissed. The Firefly cast isn’t exactly in support of the ban either.

Ellie Hall at Buzzfeed has a great illustrated run-down of the kerfuffle’s history, so I won’t attempt to reproduce that handiwork here, but here are the main points.

ThinkGeek, an online retailer of all things geek-related, worked closely with Ripple Junction, the manufacturer of the mass-produced hats, to ensure that the end product was sufficiently accurate to appease legions of Firefly fans.  Ripple Junction is an “official licensee” of The Hat and other Firefly-related items.  The terms of the licensing agreement between Ripple Junction and Fox are not known, but lots of these types of agreements are “exclusive” licensing agreements, which means that no one else can produce whatever kind of merch the contract describes.  Which is where the Big Bad Fox lawyers come in (cue “Imperial Death March”) (actually, just let it play the entire time you’re reading this article – it gives it the proper ambience.  They may be “merely” enforcing the exclusive arrangement they have with Ripple Junction.

Fox’s actions are low.  Like, lower than low.  Like, lower than a sarlacc’s gut low.

The lawyer geek in me is seething.  Putting aside for the moment the potential copyright infringement of selling the homemade hats (which some are willing to concede violate Fox’s copyright – I myself am not convinced), this is just the wrong thing to do.  Does Fox not understand that fans' enthusiasm means a more valuable property for the rightsholder, even if they aren't getting every single penny in the merchandising/Iicensing revenue stream? Not to mention the sincere amount of effort that is being put in by these Etsy (and other independent) creators in making them in the first place.  NOT TO MENTION that these hats have been made and sold and loved by fans for ten plus years, ever since the show aired (and was cancelled) in 2002, with the at least implicit support of the creator of Firefly, Joss Whedon himself.  Is there anything lower than sicking your corporate legal hellhounds on KNITTERS and CROCHETERS!?

ThinkGeek has attempted to distance itself from the Big Bad Fox by issuing a statement that it had “nothing to do with the C&D notices” and by committing to donate all profits from sales of The Hat to the charity Can’t Stop the Serenity (which in turn funds the favored charity of Joss Whedon and his late mother, Equality Now, an organization dedicated to ending violence and discrimination against women around the world).  They even welcome the competition from homespun Jayne Hat sellers.

Similarly, Ripple Junction responded directly to You Can’t Take the Yarn From Me (the fan site created in response to Fox’s corporate crackdown of the Jayne Hat) in distancing itself from Fox’s actions:

I just want you to know that we played absolutely no part in the cease and desist letters sent out to Etsy shop owners, nor did we turn anyone in.  As the official licensee of Firefly apparel for more than six years, our goal has always been to make cool stuff that all Browncoats are proud to wear.  Unfortunately, the decision to go after sellers of the Jayne hat is out of our control.

Geek Girl Diva brings another interesting wrinkle to the story by theorizing that the reason her former employer, QMx, a prop replica manufacturer and also a Firefly licensee, never offered Jayne hats for sale was because the homemade hats were better “left … to the fans.” 

 

So.

 

Are there legal issues with calling an orange and yellow knit cap in a certain style a “Jayne” hat or using the terms “Browncoat” and “Firefly” when advertising your wares for sale when you aren’t an officially licensed vendor or manufacturer?  Sure there are.  Those terms are likely trademarked by Fox (trademark and copyright are different rights with different protections for the rightsholder).  Sometimes a phrase can be trademarked when a word can’t be – I don’t know whether “Jayne” is trademarked by Fox, but “Jayne hat” or “Jayne Cobb” almost certainly is.

Are there ways around using those specific terms?  Absolutely.  The idea behind trademark protection is to protect the “goodwill” and association with a certain quality that the trademark holder has built up around the trademarked product; not to mention to protect all the marketing costs that the trademark holder may have sunk in to get the brand/trademark “known.”  When you explicitly show that your product is not officially licensed (and therefore, there’s no guarantee of quality or authenticity) and that it’s only “inspired” by a trademarked brand (not made by the same manufacturers), you’re making sure the consumer knows that they shouldn’t expect the same level of quality as the brand name.  Caveat emptor, in other words.  People of a certain age, like myself, will recall the Designer Imposters line of cheap fragrances sold in drugstores (If you like Giorgio®, you’ll love our Primo!). That recognition is probably what led Sweet Libertine Cosmetics to rename its Firefly-inspired line of eyeshadows so that none of the colors are named using a protected trademark.  Whether Sweet Libertine changed the names of their own accord, in response seeing the Jayne Hat skirmish unfold, or whether they were also recipients of cease-and-desist letters is unknown.  At the risk of outing this brave and creative person to evil Fox minions, one particular Etsy seller has my sincere admiration for spinning her tale of woe at the hands of the Evil Fox Empire into a fable that names names without really naming names.

Beating up on old ladies and women (who manufacture the bulk of Etsy's knitted and crocheted offerings) is pretty dangerous ground for a media and entertainment corporation to tread.  The powerful commodity that is rabid geeks’ word-of-mouth promotion of favored things is what transformed Comic-Con from a comic book convention to a media powerhouse event.  Fanboy/fangirl derision has been known to fell multi-million dollar franchises even before filming has begun (even when the script was written by JJ Abrams).  Time will tell whether that geek power can be turned against the producers of their favorite things in a way that corporate America can understand and appreciate.

 

“Four Jayne Hats” image from Dragon*Con 2012 by Flickr user saraheilonwy (Sarah Hickcox), used under a Creative Commons license, 

amberhardfemme's picture
on April 13, 2013

Comics made me queer.
Los Angeles-based, Chicanx, comic book pro