Squids, Pigs, and Sleep Over Your Rights – American University Intellectual Property File
The creator economy may be laying the groundwork for major intellectual property claims. Two developments regarding Peppa Pig and Squid Game outline the potential damage if you don’t protect your creative work.
Towards the end of 2021, Netflix’s sensational program “Squid Game” had taken the world by storm. Its artistic execution combined with social commentary was easily digested by viewers and the show dominated the media. In November 2021, popular YouTube creator Mr. Beast decided to create his own “Squid Game” and amassed a record 100 million views in just four days. At first, that’s an impressive feat for any creator, but has Mr. Beast opened the door to more serious IP implications?
Take for example the recent development regarding the popular children’s television show Peppa Pig. In February 2022, iconic children’s cartoon company Entertainment One accused SConnect of Wolfoo to create a substantially similar program. The creators of Peppa Pig have filed copyright and trademark lawsuits against the creators of Wolfoofurther alleging that viewers not only compared the two programs, but also led to a decrease in viewership for Peppa Pig’s videos.
Let’s examine the legal basis for these claims. In case of copyright infringement, “the plaintiff must demonstrate (1) that the defendant had access to the plaintiff’s work and (2) that the defendant’s work is substantially similar to the protected aspects of the work of the applicant”. For trademark infringement, a plaintiff must prove “that he has a protectable property right in the trademark; and that the defendant’s use of the mark is likely to confuse the consumer. Once the foundation is established, the courts will conduct an analysis that directly compares the two programs in terms of animation style, story, dialogue, and target audience. These are just a few of the many factors that are analyzed in the likelihood of confusion analysis. The full set of factors is available here; the court is ultimately responsible for determining whether there is a likelihood of confusion in the market. Let’s turn our attention to content creation and the law of parody.
Parody law, in the copyright context, is often associated with the doctrine of “fair dealing” and employs a four-factor test. This testing includes: (1) purpose and character of use; (2) the nature of the copyrighted work; (3) the amount and importance of the part used relative to the copyrighted work as a whole; and (4) the effect of the use on the potential market or value of the copyrighted work. Since the nature of the Peppa Pig case is a more direct violation, let’s return to the Mr. Beast Squid Game storyline.
Currently, there is no dispute between Mr. Beast and Hwang Dong-Hyuk, the creator of Squid Game. In fact, Dong-Hyuk even acknowledges that the remake has increased the number of views of its original version, noting that “it helped me promote the series.” With that, and the legal framework of fair use in mind, is there any real harm in creating a substantially similar show? With the Squid Game case, the two sides seem to be able to co-exist, while the Peppa Pig case is in a legal battle. Both situations appear to establish prima facie cases of infringement, but only one appears in court.
While these results are interesting, they may set an inconsistent precedent and even go so far as to encourage creators to copy works under the guise of “parody promotion”. Currently, parodies that would otherwise be confusingly similar are protected under the fair use doctrine, and in the case of Squid Game, there have never been any lawsuits. It is important to note that Wolfoo is not a parody, while Mr. Beast’s Squid Game is a clear parody. Although these two situations are different in essence, they share an immense amount of overlap. Another issue, and a possible reason for no legal action from Dong-Hyuk, is the location, as the show was filmed and based in South Korea. If cases, barring intellectual property protection in the United States, similar to the Mr. Beast Squid Game remake are not prosecuted, the integrity of the fair use doctrine will weaken.
Mr Beast is estimated to have earned $700,000 from YouTube and up to $1.25 million from ad revenue. These numbers are enough to put any content creator at risk of an infringement action, and the lack of enforcement makes it a no-brainer. With all of this on the table, the creator of Squid Game might consider legal action, like the creator of Peppa Pig. Even though things worked out this time, the purpose of intellectual property law is to protect creative expressions. Failing to enforce legal rights only sets the stage for greater violations to come.