The sweetest hat ever! Some thoughts on the legality of the Firefly Hat dispute

“A man walks down the street in that hat? People know he’s not afraid of anything”

In 2002, Joss Whedon created a science fiction series called Firefly. You will be forgiven for never having heard anything about it, the show was cancelled during its first season by Fox, leaving us with only 14 episodes. But the series became an instant cult classic, it was a charming mix of Western motives with spaceships, the casting was inspired, the characters tragic and funny in right amounts, and it contained some of the best 14 episodes ever to have been broadcast on television. The rabid fans (known as Browncoats) have kept the faith through all these years, invigorated by a stand-alone movie based on the show (called Serenity). But in my opinion what has kept the Browncoats going all these years is The Hat. The Jayne Hat, to be more precise.

Jayne Cobb is Firefly’s tough guy, played wonderfully by Adam Baldwin. In episode 12, Jayne receives a knitted hat as a gift from his mum, and it appears only for a few minutes of that one episode of that one series. Yet, the hat became the secret symbol of all Browncoats, to wear the hat meant that you were not only a fan, but a committed one. You were part of the circle, you got the joke. As Wash (Alan Tudyk) says to Jayne: “A man walks down the street in that hat? People know he’s not afraid of anything!”

Damn straight!

For years the Jayne Hat has been passed around by fans, crafted by committed knitters, sold at Firefly conventions, and more recently, sold at crafting websites such as Etsy. But then, disaster struck. After more than 10 years of ignoring the Firefly fans, Fox reached an agreement with a company called Ripple Junction in order to sell exclusive merchandise of the Jayne Hat, and other Firefly-related products. Then Fox started pursuing fans who were selling their own knitted versions on Etsy and other outlets, sending cease and desist letters. ThinkGeek was ordered only to sell the official hat.

Chaos in the community ensued.

You can understand the fan’s rage. Fox had unceremoniously axed the show, and for a decade had displayed their utter contempt by not even bothering to sell merchandise. Now in they come with their expensive merchandise lawyers and threaten fans whose only fault is to love the show too much. The Hat represents that love, only a person who has nothing to lose would wear that monstrosity of yarn on their head.

The legal question

The case has opened an interesting legal question. Can Fox stop fans from selling their own version of the Jayne hat? What is the legal protection of knitted hats?

Long-time readers may recall that I am not new to this type of controversy, some years ago a similar legal keruffle took place with Doctor Who fans. However, the issue is slightly different here, in the Doctor Who case there was a person posting knitting instructions of a character, here the letters are being directed against people selling their knitted versions of a piece of costume worn by a character.

Firstly, there is little doubt that Fox owns all of the rights to Firefly property. Merchandise consists of a large number of different types of items: creators own fictional characters, their likenesses, set and prop designs, and wardrobe designs. The show’s title, associated taglines (e.g. “winter is coming”), characters and fictional places are trademarked. So, one could state categorically that nobody but Fox (and official licensees) are entitled to sell any hat as a Jayne Hat, a Firely Hat, or any other similar denomination. In that single point we would tend to agree with Fox.

But what about the hat? Is it protected in any form? And if so, who owns the damn hat?

This is a considerably trickier question in US law. Here I have to state categorically that I am not a US lawyer, so you may want to disregard my advice as uninformed chatter. However, having conducted some research on the topic, I believe that the actual hat might very well be unprotected under US law, and as such Fox cannot stop anyone making their own knitted versions, and cannot stop selling them if the fans do not use the accompanying trademarks. Costume design is an interesting area of the law, as parts of the fashion industry have been moaning for years that there are inadequate levels of protection for clothes, which it is nicely explained in this TED video by Johanna Blakely. Apparel is “too utilitarian” to warrant copyright protection.

What exists is a mish-mash of design patents which protects unique and previously unused items, which seems to be used mostly in shoe design to protect trainer soles, so I really doubt that someone has applied for a design patent that protects the Jayne Hat (I really recommend this article by Anne Briggs on the protection of clothing design). Copyright protection of costumes is even more difficult because of the existence in US copyright law of the usefulness doctrine, which states that items of clothing cannot be protected because if they fulfil a utilitarian function. Conversely, “aesthetic features of a useful article may be protected when they are not in any way required or necessary for the performance of the utilitarian function” (quoted from here). Items of clothing might be granted copyright protection if they have reached the stage in which they can be considered art (see Poe v Missing Persons). Similarly, asome fabric designs can be given copyright protection as works of art and as prints (see Peter Pan Fabrics v. Brenda Fabrics). Looking at Jayne’s piece of head gear, I truly doubt that it could be even remotely considered a piece of art, and the fabric is just yarn.

Furthermore, knitting instructions are very utilitarian in nature, they are more akin to software code than anything else. While the instructions themselves can be given copyright protection as literary works (just like software code), the final product would be more akin to object code. Just as with software, similar instructions could produce a similar functional result.

So, as long as knitters are not selling the hat as Jayne’s Hat, FireFly Hat, Serenity Hat, or Jayne Cobb’s Hat, they should be fine. It is not in Fox’s best interest to create a bigger PR disaster by suing a fan on dodgy legal ground, and I truly do not think that the threats would go further than cease and desist letters. However, I will completely understand if fans do not want to run the risk. BIG Disclaimer: this is not legal advice, I cannot ensure that my analysis will serve as a valid defence against enforcement by trigger-happy corporate lawyers who have nothing better to do.

Concluding

Having said that, this case cannot be separated from the moral element. Regardless of the legalities, Fox are being complete idiots here by mistreating fans who have kept a show alive for more than a decade. The earnings accrued by the sale of boxed sets (yes, I own one) are more than enough to recover the costs from the show. The income lost from the unlicensed sale of fan-made hats is pitiful, and it does not cover the amount of ill-will that they have generated amongst the fans.

Thankfully, some people have been behaving well in this affair. ThinkGeek have announced that all profits will go to Can’t Stop the Serenity, a Browncoat initiative that donates money to charities identified by Joss Whedon. Ripple Junction have also indicated that they did not initiate the cease and desist action. That only leads Fox, hopefully they will also see the light.

On a personal note, I seem to be getting a reputation for writing about knitting and the law. Maybe there is a career in legal advice for knitters.