I agree but it was not a muppet sponsor thing from what I remember. If there is an allowances for parody use. All this discussion on the rights and wrongs to making the characters. How wrong is it to build? Then how did they use it for this commerical? Just curious.
There is an element of interpretation of intent.
When you make a replica of a Muppet, you are not creating a "parody".
Webbsters defines PARODY:
1 : a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule
2 : a feeble or ridiculous imitation
So... say I created a frog puppet that looked similar to Kermit, but I dressed him in a bum's clothes, gave him beard stubble, and called him "Hermit the Fraud". THAT would be parody, especially under definition 2. And the law allows parody... its part of our freedom of expression guaranteed by the Constitutional Rights we enjoy (for now).
If I made an exact likeness of Kermit, or a near exact likeness, that would be a replica. Without being a holder of rights to the character, I am technically breaking the law by infringing on the intellectual property rights of The Walt Disney Company or Muppet Holding Company in specific. (Please read previous posts concerning the gracious attitudes of the Muppet folks in the situation of fans making replicas of Muppet characters for themselves and themselves only. Still illegal, but generally overlooked by the rights holders as healthy "fan activities".)
As to the commercial with the likenesses of Kermit and Piggy, I've worked in advertising for 17 years. There isn't a single ad these days that makes it on the air without being "vetted" by an army of lawyers. Just to make sure they aren't going to get in trouble or have to pay out any money they don't have to.
So, if they were likenesses, they must have been far enough off of the originals to qualify (to the eyes of half a dozen lawyers) as parody likenesses or "caricatures" of the Muppets. If David Pannabecker made them, I can bet that he has tales of terror to relate about how they were art directed by everybody and their legal counsel.
And in the unlikely event that somebody was able to slip through an ad that did NOT qualify as parody, and they truly DID infringe on the Henson Company's rights, you can bet that a lawsuit ensued or at least a settlement. Many of these things happen completely out of sight of the public... a company like Sears usually wants it kept as quiet as possible so as not to affect their sales.
My company recently came to an "arrangement" with a software publisher we had worked with. We brought a case against them for just this sort of thing. They used a name we owned to title one of their games. They knew it. We proved it. A monetary arrangement was reached via legal discourse. However, that's all I can say about it since the details fo the case were sealed as part of the arrangement. Please note that I cannot use a particular word, beginning with the root "settle" and ending in the suffix "ment" when describing the "arrangement". That, too, was a stipulation.
Hope that answers the question?
-G
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