parody

A popular account on TikTok and Instagram stopped posting suddenly at the end of last year, hit by a lawsuit after garnering millions of views on funny videos it made using adorable children’s Calico Critter dolls to act out dark, cringe-y adult storylines.

While millions of followers mourn the so-called “Sylvanian Drama” account’s demise, experts told Ars that the creator may have a decent chance at beating the lawsuit.

The “Sylvanian Drama” account derived its name from “Sylvanian Families,” a brand name used by Epoch Company Ltd., the maker of Calico Critters, for its iconic fuzzy animal dolls in some markets outside the US. Despite these videos referencing murder, drugs, and hookups, the toy company apparently had no problem, until the account, managed by Ireland-based Thea Von Engelbrechten, started accepting big brand partnerships and making sponsored content featuring the dolls.

Since Epoch, too, strikes partnerships with brands and influencers to promote its own videos marketing the dolls, the company claimed “Sylvanian Drama” risked creating too much confusion online. They also worried viewers would think Epoch had signed off on the videos, since the sponsored content was marked “paid partnership” without specifying precisely which featured brands had paid for the spots. They further accused Von Engelbrechten of building her advertising business around their brand without any attempt to properly license the dolls, while allegedly usurping licensing opportunities from Epoch.

So far, Von Engelbrechten has delayed responding in the lawsuit. As the account remained inactive over the past few months, fans speculated whether it could survive the lawsuit, which raised copyright and trademark infringement claims to get all the videos removed. In their complaint, the toy company requested not only an injunction preventing Von Engelbrechten from creating more “Sylvanian Drama” videos, but also sought all of her profits from her online accounts, in addition to further damages.

Von Engelbrechten declined Ars’ request to provide an update on her defense in the case, but her response is due in early August. That filing will make clear what arguments she may make to overcome Epoch’s suit, but legal experts told Ars that the case isn’t necessarily a slam dunk for the toy company. So all that “Sylvanian Drama” isn’t over just yet.

Epoch’s lawyers did not respond to Ars’ request to comment.

“Sylvanian Drama” needs the court to get the joke

Epoch raised copyright infringement charges that could hit Von Engelbrechten with fines totaling $150,000 per violation.

For Von Engelbrechten to defeat the copyright infringement claim, she’ll need to convince the court that her videos are parodies. A law professor at Santa Clara University School of Law, Eric Goldman, told Ars that her videos may qualify since “even if they don’t expressly reference Epoch’s offerings by name, the videos intentionally communicate a jarring juxtaposition of adorable critters who are important parts of pop culture living through the darker sides of humanity.”

Basically, Von Engelbrechten will need the court to understand the humor in her videos to win on that claim, Rebecca Tushnet, a First Amendment law professor at Harvard Law School, told Ars.

“Courts have varied in their treatment of parodies; the complaint’s definition of parody is not controlling but humor is one of the hardest things to predict—if the court gets the joke, it will be more likely to say that the juxtaposition between the storylines and the innocent appearance of the dolls is parodic,” Tushnet said.

But if the court does get the joke, Goldman suggested that even the sponsored content—which hilariously incorporates product placements from various big brands like Marc Jacobs, Taco Bell, Hilton, and Sephora into storylines—could possibly be characterized as parody.

However, “the fact that the social media posts were labeled #ad will make it extremely difficult for the artist to contest the videos’ status as ads,” Goldman said.

Ultimately, Goldman said that Epoch’s lawsuit “raises a host of complex legal issues” and is “not an easy case on either side.”

And one of the most significant issues that Epoch may face in the courtroom could end up gutting all of its trademark infringement claims that supposedly entitle the toy company to all of Von Engelbrechten’s profits, Alexandra Jane Roberts, a Northeastern University professor of law and media with special expertise in trademark law, told Ars.

Calico Critters may stumble on trademark hurdle

The toy company has raised several trademark infringement claims, all of which depend on Epoch proving that Von Engelbrechten “knowingly and willfully” used its trademarks without permission.

However, Roberts pointed out to Ars that Epoch has no trademarks for its iconic dolls, relying only on common law to assert sole rights to the “look and design of the critters.”

It’s likely impossible for Epoch to trademark the dolls, since trademarks are not intended to block competition, and there are only so many ways to design cute dolls that resemble cats or bunnies, Roberts suggested. A court may decide “there’s only so many ways to make a small fuzzy bunny that doesn’t look like this,” potentially narrowing the rights Epoch has under trade dress, a term that Epoch doesn’t use once in its complaint.

Roberts told Ars that Epoch’s trademark claims are “not so far off the mark,” and Von Engelbrechten’s defense was certainly not strengthened by her decision to monetize the content. Prior cases, like the indie band OK Go sending a cease-and-desist to Post cereal over a breakfast product called “OK Go” due to fears of false endorsement, make it clear that courts have agreed in the past that online collaborations have muddied the waters regarding who is the actual source of content for viewers.

“The question becomes whether people are going to see these videos, even though they’re snarky, and even though they’re silly and think, ‘Oh, Calico Critters must have signed off on this,'” Roberts said. “So the argument about consumer confusion, I think, is a plausible argument.”

However, if Epoch fails to convince the court that its trademarks have been infringed, then its other claims alleging false endorsement and unfair competition would likely also collapse.

“You can still get sometimes to unfair competition or to kind of like a false endorsement, but it’s harder to win on those claims and certainly harder to get damages on those claims,” Roberts said. “You don’t get trademark infringement if you don’t have a trademark.”

Possible defenses to keep “Sylvanian Drama” alive

Winning on the trademark claims may not be easy for Von Engelbrechten, who possibly weakened her First Amendment defense by creating the sponsored content. Regardless, she will likely try to convince the court to view the videos as parody, which is a slightly different analysis under trademark law than copyright’s more well-known fair use parody exceptions.

That could be a struggle, since trademark law requires that Von Engelbrechten’s parody videos directly satirize the “Sylvanian Families” brand, and “Sylvanian Drama” videos, even the ads, instead seem to be “making fun of elements of society and culture,” rather than the dolls themselves, Roberts said.

She pointed to winning cases involving the Barbie trademark as an instructive example. In a case disputing Mattel trademarks used in the lyrics for the one-hit wonder “Barbie Girl,” the song was cleared for trademark infringement as a “purely expressive work” that directly parodies Barbie in the lyrics. And in another case, where an artist, Tom Forsythe, captured photos of Barbie dolls in kitchen vessels like a blender or a margarita glass, more robust First Amendment protection was offered since his photos “had a lot to say about sexism and the dolls and what the dolls represent,” Roberts said.

The potential “Sylvanian Drama” defense seems to lack strong go-to arguments that typically win trademark cases, but Roberts said there is still one other defense the content creator may be weighing.

Under “nominative fair use,” it’s OK to use another company’s trademark if it’s necessary in an ad. Roberts provided examples, like a company renting Lexus cars needing to use that trademark or comparative advertising using Tiffany’s diamonds as a reference point to hype their lower prices.

If Von Engelbrechten goes that route, she will need to prove she used “no more of the mark than is necessary” and did not mislead fans on whether Epoch signed off on the use.

“Here it’s hard to say that ‘Sylvanian Drama’ really needed to use so much of those characters and that they didn’t use more than they needed and that they weren’t misleading,” Roberts said.

However, Von Engelbrechten’s best bet might be arguing that there was no confusion, since “Sylvanian Families” isn’t even a brand that’s used in the US, which is where Epoch chose to file its lawsuit because the brands that partnered with the popular account are based in New York. And the case may not even get that far, Roberts suggested, since “before you can get to those questions about the likelihood of confusion, you have to show that you actually have trademark or trade dress rights to enforce.”

Calico Critters creator may face millennial backlash

Epoch may come to regret filing the lawsuit, Roberts said, noting that as a millennial who grew up a big “Hello Kitty” fan, she still buys merch that appeals to her, and Epoch likely knows about that market, as it has done collaborations with the “Hello Kitty” brand. The toymaker could risk alienating other millennials nostalgic for Calico Critters who may be among the “Sylvanian Drama” audience and feel turned off by the lawsuit.

“When you draw attention to something like this and appear litigious, and that you’re coming after a creator who a lot of people really like and really enjoy and probably feel defensive about, like, ‘Oh, she’s just making these funny videos that everyone loves. Why would you want to sue her?'” Roberts said, “that can be really bad press.”

Goldman suggested that Epoch might be better off striking a deal with the creator, which “could establish some boundaries for the artist to keep going without stepping on the IP owner’s rights.” But he noted that “often IP owners in these situations are not open to negotiation,” and “that requires courts to draw difficult and unpredictable lines about the permissible scope of fair use.”

For Von Engelbrechten, the lawsuit may mean that her days of creating “Sylvanian Drama”-sponsored content are over, which could risk crushing a bigger dream she had to succeed in advertising. However, if the lawsuit can be amicably settled, the beloved content creator could also end up making money for Epoch, considering her brand deals appeared to be bigger.

While she seems to take her advertising business seriously, Von Engelbrechten’s videos often joke about legal consequences, such as one where a cat doll says she cannot go to a party because she’s in jail but says “I’ll figure it out” when told her ex will be attending. Perhaps Von Engelbrechten is currently devising a scheme, like her characters, to escape consequences and keep the “Sylvanian Drama” going.

“Maybe if this company were really smart, they would want to hire this person instead of suing them,” Roberts said.