70 Fla. L. Rev. F. 69 (2018)
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Florida Law Review ForumIntellectual Property


Response to Cathay Y. N. Smith, Beware the Slender Man: Intellectual Property and Internet Folklore

Someone, at some time, invented Santa Claus. They did not invent him from whole cloth, of course. They drew on folklore and religious icons, and then got creative. Someone decided he lived in the North Pole; someone else decided he wore a furry red suit; someone else decided he traveled via flying reindeer. At first glance, Slender Man and Santa Claus don’t have much in common. According to their mythologies, both inspire children to change their behaviors—Santa cautions against naughtiness, and Slender Man tempts children to evil—but where Santa is jolly and generous, Slender Man is eldritch and cruel. Slender Man’s business suit and tentacled back could not be more different from Santa’s red and white furs. But despite their character differences, they are legally similar: Both result from the curious combination of creativity and belief that makes folklore exist on the border of fiction and reality. Professor Cathay Smith’s Article, Beware the Slender Man: Intellectual Property and Internet Folklore, takes a detailed look at the development of the Slender Man character to provide an example of how intellectual property law approaches iterative and collective creation. Professor Smith approaches Slender Man as folklore, and explains why the definition fits. She examines whether any of the individual contributors or communities that collectively created Slender Man can rely on copyright or trademark law to protect the Slender Man character. The most valuable contribution of Professor Smith’s work, however, is what it suggests about copyright in characters.
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