This may make you cry.
Jeffrey Baldwin is a Toronto child who died of starvation in 2002 after severe abuse at the hands of his grandparents. The grandparents were convicted child abusers but Jeffrey and several siblings were still handed into their care by a children’s “aid” organization. He and a sister were locked in a room and forced to live in their own filth. And worse. In happier days, the boy was a Superman fan who was even photographed wearing the classic uniform.
A Toronto man was so moved by this story—revealed in a long delayed inquest into the death earlier this year—that he comissioned a statue of Jeffrey wearing a Superman uniform.
However, when he asked for permission from DC to include the Superman logo, it was denied.
DC’s senior vice-president of business and legal affairs, Amy Genkins, told Boyce in an email that “for a variety of legal reasons, we are not able to accede to the request, nor many other incredibly worthy projects that come to our attention.”
DC did not immediately return a request for comment.For Boyce, it was a huge blow, as he felt the Superman aspect was a crucial part of the bronze monument, which will include a bench. The coroner’s inquest heard from Jeffrey’s father that his son loved to dress up as Superman.
Okay I get it. Legal reasons. It’s still kind of sad.
“I’m sort of empathetic to (DC’s) point of view on this, but I feel very strongly that the image of Jeffrey is so powerful,” said Boyce. “It’s the image of a vulnerable boy dressed up as the most invulnerable character in the universe. So I just feel like there’s something lost if we change it.”
Boyce said he was empathetic to DC’s stance because he felt they did not want the Superman character associated with child abuse.
I get that too. But still sad. Superheroes are aspirational character who help get kids through trauma as larger than life figures with larger than life heroism.
Boyce is going to have the “S” on the statue changed to a “J” for Jeffrey.
Your really stretching it with this one Heidi. Must be a slow news day for the self-righteous. Would you think it was sad if the request was denied by Coca-Cola or ABC or Ikea? Because it would have been.
I get it too but this would seem a worthy project indeed to allow the symbol. It does after all stand for hope.
more good press for DC.
Seems to me, i recall a time when DC published a comic to fight against world hunger. This is what we like to call “a missed opportunity” in the PR business.
Imagine the great PR they could have received if they had put together a comic and a campaign (tied into their comics and upcoming movies) that helped to expose the terrors of child abuse by telling Jeffrey’s story.
it used to be comics told stories about heroes standing up for what’s right. Guess that’s gone too.
Memo to DC: Never let your Legal department speak directly to the media. Send all replies thru Public Relations.
Ugh. Because you know, if we allow dead kids to use the Superman logo the center will not hold. Absolute chaos ensues.
Reminds me of one of Disney’s finer moments
http://www.snopes.com/disney/wdco/daycare.asp
This is a situation where the artist should ignore the lawyers. Then, if DC wants wants to sue, they’d have to weigh the PR cost of taking the memorial away. I can see not giving permission, but it would look much worse to get rid of it after the fact.
How many ways did DC screw this up? How high can you count?
1) The statue does not reflect a material breach of copyright, since there is no for-profit entity that benefits from its use. They could have easily granted an exemption to them, combined with a small charitable gift. However, DC corporate does not give to charities. Behind the scenes, some executives have been known to send out DC “care packages” to sick children, but they always have to do it secretly. In the comics industry, there is a charity called The Hero Initiative, which raises money for comic creators who have landed on hard times (usually because they’ve been denied royalties on their creations at some point, or just aren’t the flavor of the month). Marvel has given generously, while DC stiffed them for years. Their legal department was SO strict with their IP, they wouldn’t even grant rights to use images of comic books in some of their OWN movies and TV shows. When I was at CrossGen years ago, we provided comics to the productions of Queer as Folk, Vanilla Sky and Million Dollar Baby because the rights and clearances person on those films could not secure DC comics for the scenes that required comic books. The legal department there has always been very heavy-handed and unsympathetic, behaving contrary to the heroes they portray in their comics and films. These policies are not new, but they are damaging to their brand in many ways.
2) With the earlier poster, I agree that companies should NEVER allow ANY attorney to comment for them in public to the media. EVER. Attorneys are trained based on the rules of evidence and what courts will admit as evidence. The court of public opinion has no rules, so attorneys will always be ill-prepared for the consequences of their words and actions. A true marketing or PR executive could have headed this one off at the pass and gotten senior management to sign off on the exemption. But Warner Bros has always been very decentralized, with the left hand and right hand never being in synch. That being said, it should be a simple rule: if the audience is a judge or a jury, use the attorney. If the audience is the media, use a media professional. Doing otherwise is foolish.
3) Selective Enforcement is the beast the legal department is battling. Because their intellectual property is so iconic, the copyright infringements of the Superman symbol, Batman, Flash, etc. are copious and difficult to find. However, if DC KNOWS about a potential infringement, they have to act on it, for fear of having a BIG case down the road that could be fought on the basis of selective enforcement. Keep in mind, DC is in a HUGE copyright battle with the heirs of the Jerry Siegel and Joe Shuster estates (Jerry and Joe created Superman in 1938), so I think they are trying to be very careful with the Superman IP. Still, a not for profit exemption, positioned as an in-kind donation, could have easily avoided that trap.
4) The Brand is more important than the Legal Issue — The brand generates revenue, and protecting the public reputation of that brand is more important than any line-item legal issue regarding IP rights. There is always a loophole that can be found and exploited for legal issues, but brand issues are immutable, because they involve the consumer. Consumers remember. Consumers do hold grudges and they post a lot of stuff on social media.
5) DC has about 48 hours to do an about face on this one. After that, this story will have penetrated a broader range of social media users and be difficult to dial back successfully.
I could go on, but this is a good place to start. Now, let’s see if there is someone smart at Warner Bros. who has a clue on how to snatch victory from the jaws of defeat — and pay tribute to a child whose story should be told and memory served.
What would Superman do? I think he would allow it. In fact, he’ll make the statue himself. That’s what a Superman would do.
Yea – so all you dissing DC on this, go out and produce a product for others to use and abuse and tell me how you feel about it then. I’ve seen the Superman S emblem and the Action Comics “Action” font in use with small businesses – protection is there for a reason. If they allow the statue, what’s next? The family makes tshirts with the logos to sell to raise money? DC is totally in the right on this one.
Shoulda-woulda-coulda….
The artist should’ve gone ahead and done it without asking permission. DC would’ve never heard of it, or could have claimed plausible deniability and looked the other way. Nobody would’ve OKed removing a statue from a dead boy’s grave.
DC should’ve sold the artist a one-time license to use the Superman “S” for $1. Their principle of controlling their trademark would’ve been protected, the statue would’ve been made, and everyone could’ve gotten a warm feeling from doing the right thing.
Plus everything Tony Panaccio wrote above.
Russ has it right. DC should’ve called; not emailed. And said, “We can’t give you permission. GET IT? By the way, here’s a donation.” My guess, that’s already in the works.
Is DC now deliberately going out of its way to make it look like their company is run by heartless monsters? Screw their permission anyway, the statue as described would fall under fair use as a non-commercial work of art serving as commentary in regard to victims of child abuse.
Soooo, Pathetic….DC COMICS YOU SHOULD BE ASHAMED!
The artist Gould easily claim it as a parody and it would be as protected as all of those porn films that defy every valuable trademark DC owns.
How come DC didn’t sue the Make-A-Wish foundation (or the city of San Francisco) for that BatKid stunt last year?
Yes, why did DC ever let Peggy Burns go? Thanks for reporting this Heidi!
Ryan is an ass.
Those in academia have known this for years, any and all requests to use the trademarks of either DC or Marvel, even for worthy causes or, in the case of academic papers, in fair usage, are denied as a matter of course.
The corporations have a legal obligation to protect all uses of its trademarks. Failure to do so could result in the loss of those trademarks, something they will not allow ever. Instead putting polices in place to guide them as to what is worthy and not worthy to give permission to, it is much easier just to say no across the board.
Is it right, is it fair? No of course not. But that is the way trademark law is, and as long as it is cheaper to the corporate bottom line to always say no, you will continue to have things like this happen.
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Because it was in a store bought, license product already approved by DC and Warner Bros. to which they were already paid for.
trying this again…
…How come DC didn’t sue the Make-A-Wish foundation (or the city of San Francisco) for that BatKid stunt last year?…
Because it was in a store bought, license product already approved by DC and Warner Bros. to which they were already paid for.
I’m not allowing emails or names of people at WB/DC to email about this. DC had no choice but to turn this down, as wrong as it seems. Seriously, the dude should have just gone ahead and done it and not asked “permission.”
Couldn’t they just license it cheaply to the artist? Intellectual property rights confirmed, child memorialized, nitwittery avoided?
DC had no choice but to turn it down? How do you figure?
Forget it, Jake. It’s Chinatown.
Thanks to today’s Politically Correctness and Legalese way of everything, where an artist can’t put an “S” on the statue of a dead boy who loved Superman.
Did DC have to turn it down? Sure, I get it….
It’s just sad that this is what the world has become.
Just to clear up a misconception about trademark law here, DC was under no legal obligation to turn down a request for permission to use the trademark. They would have been obligated (debatably) to shut it down if he had proceeded without asking permission.
DC might have been concerned about setting precedent, not wanting to be “good cause bullied,” or any of a hundred other things, but they were in no way forced to say no when they just as easily could have said yes, go for it. Saying yes would have made the sculpture an officially licensed/permitted work of art using the trademarks, not an infringement that they ignored.
“DC might have been concerned about setting precedent…”
I feel like this had more to do with the decision more than anything else. Right or wrong, once they allow this, where do they draw a line? A statue for a dead solider? a statue for a child that died from cancer? a statue for someone’s cat who died of cat AIDS? Then how many types of requests do they start to get for this type of thing daily? How much money has to be spent to filter through these decisions? How to qualify what’s worthy of their approval and what’s not? And then that doesn’t even begin to get into what could be an even bigger PR nightmare, is what the licensing charge would be for something like this.
Again, right or wrong as you might view the decision to be, the outcome of a decision to allow them to do this is a logistical nightmare for them as a company. And they are a company whose first concern, like it or not, in the society we live in, is profit.
DC has their own charities.
Surprisingly, they haven’t promoted the latest one too much…
Superman Hall of Heroes
Oh wait…. that’s a for-profit venture.
Try this:
https://www.wbcitizenship.com/community/corporate-philanthropy/
http://www.wecanbeheroes.org/
The story of this poor little boy is deeply upsetting. Just gut wrenching total-horror show.
That being said – having the billion-dollar IP of Superman forever connected, albeit tangentially, to a story of such profound horror – is something that DC appears to not have wanted. I get that, it’s a sound business and PR move. This is too horrific to connect to the IP of Superman.
I wonder if some of the horror coming off the commentators is misplaced aggression at the monsters who murdered this poor child.
Erik Scott, you listed various examples to show this could get out of hand: “a statue for a child that died from cancer?” Funny you should mention that. What about the well-publicized Make-A-Wish Foundation Batkid stunt from last fall — involving a young boy recovering from cancer?
Note the pictures:
http://sf.wish.org/wishes/wish-stories/i-wish-to-be/wish-to-be-batkid
A whole lot of Bat-symbol imagery/trademarks on display there. Saw no (c) DC Entertainment notice. If DC registered a complaint, I didn’t see or hear about it. And I’d be surprised if a well-known charity like Make-A-Wish which managed to get city cooperation wouldn’t check with DC before putting together such an elaborate production. Regardless, that story brought the company some unearned, feel-good media attention. This one has done precisely the opposite.
Ragged T – I think this was already handled above but to echo what was said, everything that was used in the amazing Batkid event looked to have been purchased as costumes that were already licensed. As such, Make a Wish doesn’t have to ask permission to use them any more than a kid has to ask DC or WB to use them to trick or treat. They’ve already been approved for use. Make- A-Wish I’m sure is an organization that crosses all it’s P’s and Q’s and wouldn’t have done an event if those issues weren’t already dealt with.
This is an entirely different scenario. This is an original state being built based on an existing trademark. It’s DC/WB having to grant rights to the artist. As Heidi noted, it likely would have been better for the guy to just do it and not say anything.
My only point in all this is to say it’s fine to allow this kid to do it, but then when does it stop? When is it not a PR nightmare for them to say no? Especially in the world we live in today, someone or group is always going to create a negative PR firestorm for them if they say yes to this and no to the next thing. And again, time is money. Saying yes to one thing probably then brings them millions and millions of these types of requests, that someone has to evaluate and make a decision on. It’s not as simple as them saying yes to this and then there’s no fallout or consequences from it.
Let me also add, I think it sucks for both the kid and the people at the company having to make the decision. But it’s the end product of the world we live in.
A few quick corrections and observations:
–Copyright and trademark infringement are not limited to for-profit organizations, and the fair use defense does not effectively create an exception for public memorials.
–Even if there were an exception, the article notes that Boyce commissioned the statue, so there is a commercial transaction involved. There has also been a $25,000 fundraising campaign, which raises not only trademark and copyright issues but questions re the use of donated funds.
–Further complicating matters: this statute is being set up in Ottawa, outside the U.S., which adds another layer of legal complexity.
–One thing I haven’t seen anyone mention is that selling and raising funds for this statue raises right of publicity issues, given that the people involved do not appear to manage the child’s estate. The jurisprudence re the right of publicity is evolving in Canada, and there has been talk that it could survive an individual’s passing.
–It’s also worth noting, as I think a few others have, that DC attempted to handle this quietly in an email. The decision to publicize the company’s response appears to have come from Boyce.
–“Selective enforcement” does not jeopardize the rights of a copyright holder – check the cases and you’ll see that pretty much the only time that the phrase “selective enforcement” is found in copyright opinions is when the judge rules against folks raising the issue. There appears to be some confusion here with the loss of a trademark due to lack of enforcement.
–Buying a copyrighted or trademarked logo — and a logo graphic can be both — does not automatically give you the right to use it in connection with your own initiatives. Since Batkid there has been an emerging trend of people using superhero-related iconography in funerals, fundraisers and such like, and granting a blanket license would inevitably be exploited for commercial/fundraising purposes not just by funeral homes, but costume-makers, t-shirt sellers, and others claiming to be using branded goods for use in funerals and illness-related initiatives.
–It’s easy to make fun of concern for a brand, but you’d be surprised how quickly an association with a taboo subject (death, abuse, life-threatening illness) can alter how people perceive it.
–As for the statue itself, it’s not clear that the folks in Ottawa are agreed that it’s a good thing. There already is a memorial, and after Boyce started campaigning for his statue a city councilperson offered to meet with him to discuss whether it was appropriate. This may seem heartless, but I’ve seen here in NYC how the multiplication of permanent memorials (e.g., ghost bikes) can spark substantial resistance as the lines between cemetery and society begin to erode.
That Jeff Trexler fellow is extremely intelligent.
There’s quite a bit of sentimental nonsense posted here by the more ignorant to trademark laws. Beyond that, DC allowing the Superman logo on a grave marker would essentially say it’s in that business. It isn’t, nor should it be, and denying the request was a wise decision. This isn’t a tear jerker. The actual story of the poor boy is, and many are choosing to aim shockwaves at the “big, evil corporation” who won’t rightly let its brands be associated with the end-of-life business. Let your minds think before you let your hearts bleed.
Jeff Trexler, great observations. Thanks for weighing in.
Erik, appreciate your additional comments as well. Definitely agree that the implications are a bit more complex than seen at first blush. Also glad to see that a DC was able to work something out in the end.
This isn’t a legal issue – never has been. Everyone here has demonstrated multiple ways “around” this that preserves any trademark issues on DC’s behalf. It is a PR issue. A public perception issue – and it’s bad.
DC Entertainment needs a good crisis management team in place to handle things like this (pun intended after the fact). They’ve been shooting themselves in the foot then stuffing it into their mouth for too long now.
It’s not pretty.
Even their turnaround decision to allow the statue now looks like a giant corporation suddenly understanding they screwed up… again. They look (and seemingly are) out of touch with the public, and with many movies on their slate they need to correct that flaw quickly.
Hmmm. Let’s see…. this won’t cost us one red cent & will generate much-needed good will towards our company…
Nope. Fuck you AND your dead kid.
Bill, just because there is a way to do something doesn’t mean it’s not a legal issue. At this level it’s rarely a case of illegal/legal; you examine the legal risks in context – including possible reputational impact – and make a decision. The turnaround doesn’t mean they realized they screwed up – it means that the response scaled in an unanticipated way and they adapted.
The statue situation was not as clear as folks are making it. The person who commissioned the statue was neither a family member nor a government official, and DC was justifiably reluctant to insert itself into a tragic and sensitive situation, which it would have to do if it was going to do the requisite diligence in this transaction.
If you’re in corporate you encounter difficult decisions like this every day, and the flip side is a world where corporate compliance investigators are interrogating folks in charitable initiatives in towns throughout the globe. Yes, businesses – like nonprofits – do a lot of crappy things, but slagging them because they don’t rubber stamp every request that appears to be charitable is unfair.
What we have here is a fantastic demonstration of corporate and personal cynicism. The supposed symbolic virtues of the character shown to be meaningless fiction in the face of real world events. DCs legal team shattering the mythology built up around the character and ruining the sense of disbelief for some of the audience.
As always in these situations there are some individuals who are upset at having their sense of belief disrupted. “What would Superman do?” Unfortunately Superman is nothing more than a figment of the imagination a kind of fancy packaging used to sell a product. Some of the ideas promoted are nice, but they’re rather commonplace. You can find the same stories and ideas elsewhere but DC has thoroughly entrenched the character into the public imagination. You could follow those other works but if you want to be able share your passions and relate to other people you’ll be much harder pressed if you shun DC embrace a different series of narratives.
Then there are those who always rally to the defense of the corporation. Some snide, oblivious to the contradiction of values or at least unwilling to see the obvious conflict. They also tend to get offended at their beloved corporate entity which is darkly hilarious because no matter what misfortune befalls upon them their devotion and concern will never be rewarded. Almost always you have someone like Mr. Trexler who is both polite and more knowledge on the subject of IP law than your average individual. Their actual level of expertise varies, some of the individuals are IP lawyers who have knowledge in depth, others lawyers of different professions, and others still who have acquired an understanding in other ways.
I always find individual like Mr. Trexler most interesting. Sometimes they consider the law unimpeachable other times they simply state they are being pragmatic. They counter an ethically inspired argument with a legal one. I always wonder what the values of these commentators would be if the laws were written by a different set of people with different set of values and traditions. What do people like Mr. Trexler stand for? Where are their ethical breaking points? Do they even have them? Or are they just some amorphous blob of personal ethics that will conform to whatever the law tells them? If I were to become rich, powerful and capable of dictating legislation would I have my own army of Mr. Trexlers vouching for my ideas once I changed the laws?
Lastly, despite millenia of symbolic appropriation and revisionism most religions tend to do just find. Most of DC’s most lucrative characters would already be in the public domain in our government had adhered to the initial intent of copyright law. They’ve proven inept at developing new properties and would crumble without control of those old properties.
Lots of interesting points being made here. Hope I can clarify by providing some background.
I am not a lawyer, but I thought that the use of the Superman S shield would fall under “Fair Use”. Plus I felt that if the statue was placed and they found out about afterwards, they wouldn’t want the bad PR associated with demanding it be removed.
It was the city of Toronto (birthplace of Superman co-creator Joe Shuster) that demanded explicit written permission from DC allowing use of the Superman S-shield. If I didn’t get this permission, they would not allow the statue to be placed on city property. Did I think they were being ridiculous? Yes, but the city of Toronto has their own lawyers too, and they were concerned about being sued by DC. So saying nothing and just doing it was not an option at this point. I sought permission because my front yard would not be appropriate place for the statue. Plus hundreds of people who donated to have it built would be very disappointed that it would not be in their neighbourhood park.
Note: The image of the statue including the S logo was well known by mid January 2014 and I had been communicating with city of Toronto staff at this point. It wasn’t until June when they city contacted me with their concerns. By this time the design was complete, including the S- shield.
The local city councillor that I had been in contact with (Paula Fletcher) has been outstanding and extremely supportive of the entire Jeffrey Baldwin statue project. Likewise for the entire community of Greenwood Park, Toronto.
I received DC’s intitial response as an email on June 30th and I was suprised (maybe I shouldn’t have been) and disappointed that I did not receive permission. I pursued it further and eventually had a phone conversation with an executive of DC Entertainments’ legal department. I came around to seeing their perspective and at that point was resigned to go with plan “B” which was to go with a J for Jeffrey, and perhaps change the diamond shield to a maple leaf. I hold no ill will towards DC. Although I didn’t like the answer, I always remained a fan. Except maybe for about 15minutes after reading that email that for “various legal reasons” they wouldn’t allow me to use the S-Shield. DC Entertainment all along had been gracious and sympathetic to the plight of Jeffrey Baldwin. It was a business decision that they made as they didn’t want to set a precedent and potentially expose their trademark to some kind of risk.
Jeffrey’s statue is a fairly big story in Toronto and a couple of journalists wanted to stay informed of updates. I informed two of them July 2nd that DC won’t allow the S-shield and we are going to change it to a J.
When they published their articles reporting this update around noon on Monday July 7th, the story just exploded. I think everybody was suprised how viral it went. Within 24 hours I received a phone call from DC that they were reconsidering their initial response. By this time the S-shield had already been removed from the statue. They called me again on the morning of July 9th confirming they would now allow use of the S-shield.
I was never at any time attempting to shame or bully DC into giving me permission. I never though the city of Toronto would be so timid as to be concerned with the statue including the S-shield to begin with.
With hindsight being 20/20 vision, maybe some kind of licensing agreement with DC for a token amount would have been a way out, but it was never discussed. I didn’t propose it, DC didn’t offer it. If they did, I would’ve jumped at the chance to appease them. I would even have offered to include their logo on the bronze bench part of the statue. The bench is having the signatures of donors inscribed into it like grafitti.
In the end, DC was able to find a way to say yes without putting their trademark at risk. The statue will be completed by September 2014 as originally designed. Unveiling date is TBD by the city of Toronto.
@Todd Boyce — The way you handled the request and subsequent responses from DC Entertainment (both unfavorable and favorable) was as classy as it gets. Being one of the journalists who reported on the story, I wanted to be careful to represent that stance, because it is the way people in your position are supposed to behave. That being said, those of us in the business knew there was no real legal reason for DC to deny you permission to use the S-Shield. I have worked on projects similar to yours in the past, and I can’t count the number of times that I’ve heard “Well, if we help this charity, then we’ll have to help them all” excuse come dribbling out of some executive’s mouth. My response is always, “If the help being asked costs you nothing, then why aren’t you eager to help?” My point in covering this story was simple. It is unconscionable for a corporation to make billions by telling stories about heroes when the company behaves like a cold-hearted villain. But reasoning like that usually falls on deaf ears when you are communicating with some middle manager who simply wants to put in their 15 years at a company, get their retirement benefits vested and then scoot out under the radar. These people are ensconced in a culture of fear that orchestrates their every decision. Meanwhile, people like you act out of compassion, courage and integrity — the very qualities they instill in their costumed heroes. That is an irony most of us cannot countenance, hence the social media uproar and subsequent reversal. It’s sad that a company has to be bludgeoned into helping those less fortunate, but as long as the corporate culture of fear exists, a-holes like me and the rest of the fan press who covered this (thank you @HeidiMcDonald for helping with the push) will always be around to remind them that heroes help others. Period.
I and a few family members just asked to have permission to put a Batman Logo on my nephews tombstone because it was one of his favorite things. He did not die of starvation or any kind of abuse of any kind. He had croup and had a hard time breathing and passed away. I am hoping that they grant us permission to give to the mortuary to do this.
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