Abstract: In recent years, New York City’s Times Square has become overrun with life-sized cartoon characters and superheroes.
The costumed performers – often undocumented immigrants – wander the streets dressed in costumes, posing for pictures with tourists and demanding money in return. Their solicitations are often aggressive. Refusals to pay have often escalated into violent, even criminal encounters. The activity in Times Square has also raised trademark issues. The First Amendment generally protects the costumed performers’ right to dress up like characters in public. The First Amendment also protects the costumed performers, so long as they ask for “donations” and “tips.” However, copyright and trademark owners, such as The Walt Disney Company (“Disney”) and Sesame Workshop, among others, have a legitimate interest in protecting their intellectual property. Such interests include their rights to terminate unlicensed use and to protect against consumer confusion and trademark dilution. Courts have not yet addressed whether or not the costumed performers have infringed on trademarked characters. This article explores related case law to determine whether or not the performers’ solicitations constitute trademark infringement, and the substance of the performers’ defenses to infringement if it exists.

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