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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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June 20, 2005

Hollywood Smashes Piñata - No Candy, Only Lawsuits Fall Out

Posted by Ernest Miller

Yesterday, the LA Times ran an article on a copyright crackdown on makers of piñatas, or piñateros (Got a License for the Pinata?).

Disney and the other companies, in what experts said was an understandable move to protect their popular cartoon and character properties, filed copyright and trademark infringement lawsuits against Santoyo and another nearby shop owner for allegedly selling the counterfeit pinatas.
Are they really counterfeit piñatas, or merely unlicensed? In any case, Berkman Center chief John Palfrey, who was quoted in the article, provides his own take (Suing the Piñateros).
But far from thinking that these executives are compelled to make such a decision, I think it's absurd to have filed them.  See for yourself: two examples of these complaints are here (Viacom v. El Cora Produce) and here (Viacom v. Saavedra's Produce). These huge entertainment companies using their muscle to stop people from making pinatas of their characters that are the star of the show at a five year old's birthday?  One of the claims is "unfair competition."  There's obviously a legal meaning of that term.  It's certainly an unfair fight between a storefront business with margins at or near zero v. the likes of Viacom -- but not in the direction that the complaints allege.  There has got to be a better way to handle these disputes than these lawsuits. [links in original]
I grew up with piñatas in Southern California and I still rather enjoy their colorful and festive appearance in the many small markets that sell them. They are really a form of folk art that is cheap, transient and 2-feet tall.

My family never used the licensed piñatas, we stuck with the traditional sort (stars, horses, snowmen for Christmas). However, I still look at the piñatas to see what is popular with the kids. Of course the blockbuster movies are always, but you could tell how popular a movie really is by how long its piñatas continued to be sold. Nowadays you also see videogame piñatas, and the occasional fairly obscure cartoon character as well. It is too bad that Hollywood can't see to license, cheaply and easily, these characters, which would serve more as a marketing device than anything else.

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