Jack-O-Lantern, student business consider rights to “Keggy the Keg”

by Caitlin McCarthy | 6/1/20 2:05am

keggy

Keggy the Keg made an appearance on stage at Phi Delta Alpha fraternity's Green Key concert last year.

Source: Courtesy of the Dartmouth Jack-O-Lantern

Keggy the Keg, the anthropomorphic keg and elusive unofficial Dartmouth mascot, has made occasional appearances at Green Key and on Nalgene bottles since its creation by members of the Dartmouth Jack-O-Lantern in 2003. Following the Jack-O-Lantern’s “Save Keggy” campaign last spring, the keg has gained visibility among current students, prompting questions about who owns the rights to use the character in products and designs. 

Members of the Jack-O-Lantern have maintained since the character’s creation that their organization has the legal rights to Keggy. Recently, however, Dirtymouth Apparel, an online shop owned by DJ Kim ’19, released a “Keggy is Dead” collection consisting of clothing and other items featuring an image of Keggy with “X”s over its eyes. 

Dirtymouth’s product description for each item explains that the company disagrees with the Jack-O-Lantern’s claim to the character and notes that the “Keggy is Dead” collection is a “parody of this absurd copyright claim.”

Grant Anapolle ’21, an editor of the Jack-O-Lantern, said that the publication doesn’t currently “have any problem” with Dirtymouth’s “Keggy is Dead” campaign, noting that it is not pursuing any legal action.

Anapolle explained that when the Jack-O-Lantern heard in mid-May that Dirtymouth was planning to release shirts with an illustration of Keggy, the publication asked Dirtymouth not to release them — claiming its rights to Keggy — and the company agreed. Kim confirmed this in an email to The Dartmouth, noting that he chose instead to release the “Keggy is Dead” line, which was acceptable because it is a parody of the original design.

Jon Fine, a legal counsel at the Bose corporation, explained that under common law, groups that can prove that they used an idea first are allowed to stop others from using it, except in the case of parody. Mike Hiestand, senior legal counsel for Student Press Law Center in Washington, D.C. added that “[t]he biggest thing that the court seems to be looking at is whether or not the parody is actually adding something to the conversation with respect to the original.”

He also said that while it is up to the courts to determine whether a work is parody, the affected group — in this case, the Jack-O-Lantern — would have to be the one to contest a potential parody.

Kim said that his personal view of the character was that “Keggy has sort of taken a life of its own and that … people don’t really refer to it as Keggy by Jack-O-Lantern. They refer to it as Keggy the Keg.” 

Anapolle said that he had spoken to a lawyer at the Student Press Law Center in a “strictly informational” context, though the Jack-O-Lantern does not plan to take legal action. He noted that the lawyer reassured him that copyright still applies to students.

Anapolle wrote in an email to The Dartmouth that when the Jack-O-Lantern heard about Dirtymouth’s plans to sell Keggy merchandise, the publication considered the possibility of a collaboration, but he noted that both Council on Student Organizations obligations and the Jack-O-Lantern’s policy on the usage of Keggy would not allow them to do so.

The COSO website notes that organization officers cannot enter into “contractual obligations in the name of the organization or the College.”

Anapolle said that the Jack-O-Lantern’s policy regarding requests to use the name or image of Keggy non-parodically is “to politely decline.” He said that this instance is “not a novel situation” for the Jack-O-Lantern and that the publication is “responsible for maintaining the mascot and protecting a name and image.”

He added that last year, members of the publication reached out to the character’s original creators, Nic Duquette ’04 and Chris Plehal ’04, who clarified that “[the Jack-O-Lantern] has all the rights to it.”

Kim said that he respects the Jack-O-Lantern and that he chose to make “another derivative version” to comply. He noted that he was getting requests for Keggy merchandise, and he hadn’t seen any new designs of the character recently.

He attributed the lack of new designs to his belief that the Jack-O-Lantern was asking other companies to pay to use the character. However, Anapolle clarified in an email statement that “it is not [the Jack-O-Lantern’s] current or recent policy to sell companies the rights to Keggy” and that the publication “does not license out the character.”

“We therefore declined Dirtymouth’s offer to share revenue, asked them to respect our publication’s copyright and wished them the best,” Anapolle wrote.

Kim added that he had never had copyright issues with other works on his website, which include Dartmouth-style parodies of the brands Supreme and Comme des Garçons.

“As a publication, we are responsible for protecting the intellectual property of our student writers and artists from third-party infringement,” the Jack-O-Lantern wrote in an email statement sent to The Dartmouth.  “In the case of Keggy, we’ve never taken issue with students adapting the character for personal use, but we’re opposed to companies trying to sell out Keggy for profit.”

Anapolle noted that “there’s a difference” between students adapting the character, such as by painting it on pong tables, and businesses making money off of the character.

Currently, the Jack-O-Lantern has a Redbubble store that sells Keggy stickers, and Anapolle confirmed that the publication is not making any profit off of them. This stands in contrast to last year during Green Key weekend, when the Jack-O-Lantern sold shirts featuring Keggy. Anapolle noted that the proceeds from the sale of merchandise is used to fund the publication, as well as maintain the Keggy mascot, saying that “we essentially use Keggy to fundraise for our publication.”