It’s Independence Day in the USA. I hope you’re enjoying it relaxing in a backyard, surrounded by family and friends, perhaps floating in a pool and/or enjoying some barbecue. Will you be attending a fireworks display, or maybe blowing up things in the street? My family does a little of both. Last night we continued our recent tradition of attending a minor league baseball game followed by fireworks. Perfect. Except for the humidity.
As I sat in seat 3 of row H of section 110, my cynical stick-in-the-mud-ness dissipated as the sky lit up in reds and golds and blues, the scent of sulfur on the breeze, my sternum reverberating with every thumping concussion. I was, yet again and against my better judgment, delighted to be watching fireworks. I’d say it’s something primal, but that can’t be right. Why are we so enchanted by colorful things exploding to the soundtrack of Lee Greenwood and The Boss?
Last weekend, as we visited the Dairy Haven for my wife’s favorite orange twist cone, we passed a handful of roadside fireworks stands of the kind I grew up seeing only in the most remote stretches of rural Missouri, where almost anything was legal if you knew who to ask and how to make clear you weren’t a cop. My friend Henry’s dad did know to ask for Clyde, so he was always escorted clandestinely into a back room where he would procure items purported to be “a quarter stick of dynamite” or “illegal in every state” and almost always “the last available anywhere.” These days such catastrophes in waiting are available almost everywhere, or at least much closer to well populated areas, proving my theory that as long as there’s a buck to be made, the public interest be damned.1
So it was with my Dairy Haven Oreo™ concrete in hand that I was convinced to tag along on my family’s visit to the temporary retail establishment occupying a large vinyl tent across the parking lot from a Kentucky Fried Chicken drive-thru. I can’t be sure but I believe it was called “Buy One Get One Free Fireworks.”
If you want to restore your faith in American capitalist ingenuity, if not your faith in humanity, I encourage you to find the “Buy One Get One Free Fireworks” in your area. I bet they’ll be willing to haggle soon.
As we navigated the aisles of inflammable2 fun, my children filling their buggy with sparklers and fountains, parachutes and black snakes, I wandered away to peruse the serious stuff. There was a box of fireworks taller than me—no kidding—which had a classy name like “The Big Bang” or “The Mother Lode” and a price tag approaching four digits. I was, alas, not a serious buyer.
What I was, though, was intrigued. Not by the unique combination of poor taste and high income required to support so many of these establishments, nor by the myriad ways I could exchange cash, credit or Venmo for the ability to bring so much flaming danger home with me. Mostly I was intrigued by the ridiculous branding of all this stuff.
First it was the over-the-top silliness that caught my eye. Most every product was stylized to be dangerous, juvenile, or patriotic—and ideally all three.3 The Atomic Punch sat near the Pyro Predator, the Red Devil next to the Monster Mayhem. Don’t forget Freedom’s Calling, the Destroyer, and Corruption 2.0.4 It seems the ideal demographic has been exceedingly well defined. I could learn a lesson about giving people what they want, or explicitly catering to my audience. Nobody ever went broke underestimating the taste of the American public.
Some things were more sad than funny. Like the table divided in two, with blue backpacks on one side and pink backpacks on the other. “Boys Pyro Club” and “Girls Pyro Club,” respectively. Rest assured, neither the scourge of wokeness nor the safety of children have taken hold in the fireworks industry.5
Eventually something familiar caught my eye. It was a yellow, cylindrical object sporting safety goggles and wearing blue coveralls. My initial thought was, “Oh, Illumination Entertainment has entered the fireworks business. That seems like an odd choice.” But no, they have not. Because this was not in fact a Minion™ but rather a Kevin. Just a plain old un-trademarkable-name Kevin. Any resemblance to a large corporation’s valuable intellectual property is merely a coincidence.
The coincidences didn’t stop there.
Nearby sat a Falcon—a spaceship firework of ambiguous origin bearing a striking resemblance to some iconic Lucasfilm I.P. And the unmistakable red and black “I” logo? Turns out I mistook it, because it’s not a Disney property but rather simply an Incredible Fountain.
There was a green tractor called the Big John. There was a yellow thing resembling a Pikachu Pokemon. There was a pink starfish coincidentally named Patrick. There was an owl bearing the name “Whooters” in the recognizable logo of a tacky restaurant chain that makes undeniably excellent chicken wings. What owls and chicken wings have to do with exploding stuff on America’s birthday I have no idea.
I also have no idea how on earth this is legal. Not the blow-uppy part so much as the intellectual property part. Is it fair use to sell a spaceship identical to the Millennium Falcon so long as you just call it the Falcon? I don’t think so.
I’m no I.P. attorney so take everything I say here (or ever, frankly) with a grain of salt. But my understanding is that the standard in trademark law tends to be whether or not a consumer would likely be confused about the origin of a product. Meaning, if the average fireworks shopper would think the Kevin is an official Minion, or the Falcon is an official Star War, or the Incredible Fountain is licensed Disney merch, then the use of these likenesses would violate trademark.
My understanding of copyright, which is almost certainly also being violated here, is that the standard is slightly different and a little trickier to define. It’s kind of like obscenity: I can’t tell you what it is, but I know it when I see it. The bottom line is if the new work incorporates someone else’s copyrighted material without transforming it, it infringes upon the original creator’s copyright.6
The question with these fireworks is not if trademark and copyright are being violated, but rather what could be done about it. Who are they gonna sue? Yes, many fireworks are produced in the U.S. but those makers are surely smart enough to avoid such blatant ripoffs, what with being easily within reach of the long arm of American jurisprudence. It’s the 70% of our fireworks that come from the other side of the world that present the real challenge. It’s not worth it to pursue recompense. Which is a sentiment that, sadly, I am familiar with.
Interestingly, at least to me, there’s a surprisingly long list of cases involving copyright and fireworks. There’s the issue of the music being performed publicly, which requires special performance royalties to be paid. There’s the corresponding workaround of fireworks production companies therefore coordinating with local radio stations to broadcast specific tunes at specific times in order to avoid those pesky added royalties—a hack that may be changing soon. There’s also the quirky concept that a fireworks display itself cannot be copyrighted, but a photograph of that same display can be. As can the code used in the computer that controls the launching of the flaming projectiles into the sky. If there’s money in it, you can bet someone’s figured out how to bend the rules to make a little more. Until they get caught, that is, and then some of that money shifts to someone else. I don’t know if anyone ever really wins, besides the lawyers of course.
Ultimately, I’m not concerned Disney’s gonna go broke because I bought a Falcon and an Incredible Fountain (I didn’t, by the way). But I do think it’s interesting to consider how the same rules and regulations that protect my work infiltrate all manner of industries and products. It’s amusing to see a business—set up in a tent by the highway to sell things that explode—dial up the shadiness factor by branding products nefariously in an effort to eke out another buck without compensating the right people, the ones who deserve to be compensated for making it in the first place.
Actually, now that I think about it, what could be more American than that?
Happy Fourth of July, everybody. Now stand back while I celebrate freedom.
I really am becoming too cynical for my own good. But does that mean I’m wrong?
One of my favorite quirks of the English language is that the words “flammable” and “inflammable” mean exactly the same thing. No really.
Remind you of anyone?
I swear these names are real. And again I ask… Remind you of anyone?
/s
Not a lawyer. Your mileage may vary. Don’t get sued because you listened to me. Ask a smart person, preferably a lawyer.
Well nothing is impossible over there, right? As a EU citizen I find it quite, er ... 🤦♂️ but yeah. Thanks for the write up, it was amusing to read 😉