Kerry Morrison and/or Minions Almost Certainly Lied to Sesame Street to Evoke Anti-Big-Bird, Anti-Elmo C&D Letters

What laws are being violated here?  Is the photographer violating trademarks?  Performance rights?  Right of publicity?  Are we violating any of these rights by republishing this photo?  I guess we're gonna find out!  At least the BID Patrol can't pop old Elmo for violating LAMC 41.47.2.
What rights are being violated here? What torts being committed? Is the photographer violating trademarks? Performance rights? Rights of publicity? False light?!? Are we violating any of these rights by republishing this photo? I guess we’re gonna find out! At least the BID Patrol can’t pop old Elmo for violating LAMC 41.47.2. At least not this time…
We recently had occasion to write about the HPOA’s continent-spanning conspiracy with a bunch of their creepy counterparts in Manhattan to abuse intellectual property law, to violate California Penal Code §158, to constructively violate the first amendment, and both stridently and characteristically to act the fool with respect to the burning issue of street characters.
You can't trademark breasts, so what are they going to do about topless street characters when they get to L.A.?  One might argue that women can bare their breasts legally in New York but not in California.  That's not the kind of law that's going to withstand any pressure, though.  It just hasn't been rigorously tested here....yet!
You can’t trademark breasts, so what are they going to do about topless street characters when they get to L.A.? One might argue that women can bare their breasts legally in New York but not in California. That’s not the kind of law that’s going to withstand any pressure, though. It just hasn’t been rigorously tested here….yet!

Since last we examined this issue, the NYPD has gone nuclear by asking Disney and Marvel to sue the street characters, something which those companies seem to have proved unwilling to do. Of course, what the city and the local BIDs really don’t like is the naked ladies. Some of the information we were missing then we’ve obtained now. First, you will recall that in a finger-down-throat-fawning set of emails Kerry Morrison advised Tom Cusick, the dude who’s her counterpart at the Fifth Avenue BID, that they hadn’t had much luck with their criminal attempts to incite litigation against street characters. She mentioned to Tom, though, that the HPOA had managed to get Sesame Street to send cease and desist letters to Big Bird and Elmo one time under special circumstances. We now have copies of those letters. Read on for analysis.

On the surface this seems to be a picture of a guy and his dog surfing while both dressed up as Big Bird, who also got a C&D letter from Sesame Street at the corrupt behest of the HPOA.  But, you know, these two might be up to something even worse than painting their breasts red, white, and blue and titillating the touristas.
On the surface this seems to be a picture of a guy and his dog surfing while both dressed up as Big Bird, who also got a C&D letter from Sesame Street at the corrupt behest of the HPOA. But, you know, these two might be up to something even worse than painting their breasts red, white, and blue and titillating the touristas.

First note that in her recent emails discussing these C&D letters, Kerry Morrison stated that

However, the one time I did share with [Tom Cusick] the one time [stirring up groundless litigation against street characters] “stuck” and that was when Sesame Street had plans to open a pop-up store at H/H one summer, and they wanted to clear out of the way the slimy characters so as not to confuse the visitors.

She also told Tom Cusick that

I know that LAPD and our city attorney attempted also to meet with Warner Brothers and Marvel Comics.

Now, let’s talk about the mendacity of Kerry Morrison. She says that she “knows” that the LA City Attorney attempted “to meet with” some trademark owners. Our faithful correspondent requested all material held by the City Attorney about these attempted meetings and was informed by the painstakingly honest Mike Dundas that

After conducting a search, we have no records related to such a meeting with Warner Brothers and Marvel Comics.

So it’s possible that this attempted meeting took place mostly in Kerry’s fevered imagination. Sometimes it happens that way. On the other hand, as we mentioned above, we were able to obtain copies of the demand letters that Sesame Street’s lords and masters sent to two Los Angeles street characters. They both say pretty much the same thing, of which the salient part is this:
This is a guy in the U.S. Army wearing an Oscar the Grouch costume and crawling through the mud in what the photographer calls a "morale-building event."  Where are the C&D letters to the U.S. Army?!?  How can they claim to be defending our nation's freedom when they're infringing on Sesame Workshop's valuable intellectual property?!!?!
This is a guy in the U.S. Army wearing an Oscar the Grouch costume and crawling through the mud in what the photographer calls a “morale-building event.” Where are the C&D letters to the U.S. Army?!? How can they claim to be defending our nation’s freedom when they’re infringing on Sesame Workshop’s valuable intellectual property?!!?!


We have learned that you have been dressing in an infringing walkaround costume of the Sesame Street Character, Elmo (the “Elmo Walkaround”) [substitute “Big Bird” for the other letter] and appearing/performing in the vicinity of Hollywood Boulevard in Los Angeles, California. We have also been advised that you regularly demand payments in exchange for appearing in tourists’ photographs. Your unauthorized appearances and payment demands are not licensed uses of the Elmo character and, as such, infringe Sesame Workshop’s valuable intellectual property.

Now, Sesame Street’s off in New York City, 2800 miles from Hollywood Boulevard. How did they get “advised that [they] regularly demand payments in exchange for appearing in tourists’ photographs”? Well, obviously, Kerry Morrison and/or her minions told them so. She says as much in the emails linked to above. The problem is, though, that it’s almost certainly not true. You see, demanding money in exchange for being photographed is against the law in Los Angeles. It’s probably a violation of LAMC 42.00 if not some other law. Certainly, if, to the BID’s knowledge, these two hapless figures had been demanding money, they would have been arrested by the BID Patrol. Certainly, given the overly cozy relationship that the BID maintains with the City Attorney, had they been arrested they would have been given stayaway orders. That’s just how it rolls on the Boulevard of Broken Dreams. But, although we don’t know for sure, the preponderance of the evidence points to the conclusion that they were not arrested for soliciting money in exchange for being photographed. Faithful readers of this blog will recall that we’ve obtained photographs from Andrews International Security depicting, according to Kerry Morrison, everyone who was arrested by the BID Patrol in 2008 and 2009. Searching the names yields no hits for these fellows, nor does a visual search turn up any pictures of either Elmo or Big Bird under arrest. Spiderman, yes. Barney, yes. But not Elmo, not Big Bird. Finally, a search for the two names in Steve Seyler’s reports to the BID security committee also yields no hits. If they weren’t arrested, they probably didn’t demand money. If they didn’t demand money but Kerry told Sesame Workshop that they did, she was lying. That’s the most likely explanation for this set of facts.

And look at what else the lawyer tells the guys to do:

2. Destroy and and all Big Bird [or Elmo] Walkaround costumes and any other Sesame Street character costumes in your possession. If you purchased the costume(s) from another company, immediately provide the name and contact information for that company.

3. Cease and desist from any and all use of, or reference to the character Elmo [or Big Bird] and/or Sesame Street, including any related images, videos or music used in your business activities.

One little text message to Sesame Workshop and BLANGO!!!!! Up in smoke, Muppets!!!  Actually, as horrible as that is, it sounds kind of fun.  Maybe they could monetize the process?
One little text message to Sesame Workshop and BLANGO!!!!! Up in smoke, Muppets!!! Actually, as horrible as that is, it sounds kind of fun. Maybe they could monetize the process?

DESTROY the costumes?! Is this guy serious, Mr. John M. Gallacher, Senior Counsel? Seriously? The official Sesame Street Store sells adult “walkaround” costumes. here’s an Oscar the Grouch one. They want us to believe that we can spend a hundred bucks on this costume and then, if we appear in public wearing it, maybe even on Hollywood Boulevard, and the BID shoots them a line mendaciously stating that we demanded money from tourists, then we have to DESTROY it? Just wait till they get that Mission Impossible technology going so that they can destroy it remotely. What a world we’ll live in then? Is Batman bothering you at Hollywood and Highland? Just text DC Comics, say he demanded money, and they’ll blow him up over the internet. There’s probably going to be an iPhone app for it. Destroy the costume. Fucking savages.


Image of Elmo on the can is released by its creator, Mark Sebastian under the CC BY-SA 2.0 and is available from his Flickr stream. Note that we’ve cropped it a little, which naturally is allowed under the terms of the license, so at least that’s OK. Image of the naked cowgirl has been released by its creator,
Bertrand Duperrin
, under the CC BY-NC-ND 2.0 and is available from his Flickr stream. Picture of two Big Birds on a surfboard has been released under the CC BY-NC-ND 2.0 by its creator, Nathan Rupert, and is available here from his Flickr stream. Image of Oscar the Grouch in the mudpit released under the CC BY 2.0 by its creator, Justin Connaher and obtained via his Flickr stream. Image of Elmo and Cookie Monster is released under the CC BY-NC-ND 2.0 by its creator, stalkERR and may be obtained via Flickr.

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