Even Santa Needs to Get It in Writing

A Toronto mall and its former “Fashion Santa” are having a snowball fight over the character. The mall hired a new Fashion Santa this year instead of the person who played the role before. The dispute is over who owns the character and name. They even have duelling trademark applications for Fashion Santa.

In the end it comes down to the facts (including whether the individual is an employee or an independent contractor, and who developed the character) and the nature of any agreement that might exist.

While disputes over public characters makes for good press, this kind of dispute is actually not that rare. Disputes often occur between individuals and the entity that hires them over who has rights to intellectual property.

Typically the individual claims they created something before they were hired, or that they are really independent contractors providing a service. The business claims either that it created it on its own, the employee merely had an idea that it then developed, or the employee developed it as part of the employee’s duties. These issues can be difficult to sort out, as the facts are often fluid, and subject to different points of view.

The best and easiest time to sort out ownership issues is at the beginning, and put it in writing. But it may not be on the parties’ minds then. Ownership and rights issues often get controversial only when something becomes successful and money gets involved – such as the publicity and success of Fashion Santa.

The 2016 Fashion Santa. photo source: yorkdale.com


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