This week, Bill Cosby was a guest on Letterman, where the 75-year-old made many jokes about being old. One Cosby admirer not watching was Kiley Kmiec, a Santa Monica resident who couldn't bring himself to witness the Coz's appearance "for fear of tossing shit at my TV."
Kmiec is the co-founder of CosbySweaters.com, a two-and-a-half year old website for "sports fans who love music, tech, pop culture, and dumb Internet videos." A kind of loving tribute to the comedian, the name Cosby Sweaters was chosen because the icon of ‘80s nostalgia captured the site's motley approach to a vision. "Our site looks like everything is thrown randomly—it doesn't make a lot of sense, but it works when you pay attention," Kmiec explained to me recently over the phone. To underscore the point, they'd adopted the tagline, "The Magic Is In the Details."
But as of yesterday, Cosby Sweaters was no more. Earlier this month, the University of Southern California grad found himself the recipient of a cease and desist from Cosby's legal representatives at the Manhattan-based firm Patterson Belknap Webb & Tyler (posted below), who alleged his site was a clear violation of their very famous client's intellectual property rights. "I'm like, ‘Are you kidding me? My childhood hero is, suing us?''"
That's what Cosby's lawyer was threatening. From the document:
Mr. Cosby has used his name for decades in connection with activities as an entertainer. His name is famous throughout the world and he has acquired tremendous goodwill and valuable intellectual property rights, including a United States trademark registration. (See attached Schedule 8.) In addition, as you know, the multi-colored, multi-patterned sweaters that Mr. Cosby wore on ‘The Cosby Show,' an iconic television program that aired from 1984 through 1992 and has continued in broadcast as reruns and in syndication both domestically and internationally through the present, are strongly associated with Cosby. The term ‘Cosby Sweater' instantly evokes Mr. Cosby and The Cosby Show."
This isn't the first time Cosby's lawyers have tried to strong-arm little guys into abandoning their affectionately branded tributes to Camille's husband. In 2005, the comedian's reps went after House of Cosbys, an online animated series about a fervent Cosby fan who cloned a household of mutant Cosbys, firing off cease and desists to the show's creator, Justin Roiland, and the producers of its online host, Channel101.com, one of whom was maniacal Community showrunner Dan Harmon. Both resisted, but Cosby's firm went after the site's ISP, which caved into the pressure, and House of Cosbys was pulled offline.
But why was an independent web-based artist like Roiland targeted when Family Guy, the Simpsons, and South Park had all parodied the Coz in animated form in the past? That's what blogger Andy Baio wanted to know. "This strikes me as a special kind of discrimination against amateur creators on the Internet," he wrote in a post defending his decision to host House of Cosbys on his site, Waxy.org, in protest. Months later, in 2006, he too received a c&d from Cosby's lawyer, but refused to comply. The New York Times covered his resistance and Baio never heard from Patterson Belknap Webb & Tyler again. To this day, House of Cosbys is available to watch on Waxy, including the series' phantom fifth episode, a crass clip made by angry fans that stars a Cosby stick figure humping a dog.
"I think it helps that nobody made any money off House of Cosbys and I had no financial incentive for hosting it," Baio now reasons over email. "Cosby Sweaters is in a different position—if they're perceived as having money, or making a decent amount of money off the site, that may make them an attractive target for a settlement."
Kmiec acknowledges that his site had T-shirts and Xbox avatars for sale, but insists those earnings have been laughably minimal: $526 in virtual avatars and $43 in tees. (They sold so few shirts, they gave away the rest.) They'd happily take those down if they could retain the name, but when they spoke with Cosby's legal team over the phone, that wasn't a provided option.
"We're not confusing consumers," said Kmiec, who believes that they'd have a reasonable case if this ever went to court. While Cosby does own the service trademark to "Bill Cosby," he doesn't own "Cosby sweater." No one does. CosbySweaters.com tried to register it when they first launched, but were refused.
The phrase certainly seems like a part of the cultural lexicon. There's an elaborate Tumblr, The Cosby Sweater Project, maintained by a Chicago artist who has separately illustrated nearly every sweater's pattern. There's a 2009 dance track called "Bill Cosby Sweater," a West Coast band called Cosby Sweater, and a Seattle dance circle.
So is the very famous comedian legal entitled to the phrase "Cosby sweaters"? Unclear, but it would be most definitely contingent upon the circumstances in which the term is used. For example, Cosby's legal team would have a difficult time claiming ownership to the phrase as a style descriptive. Like when sportswear brand O'Neill uses "Cosby" to advertise a women's acrylic sweater, or with the 600-plus items listed as "Cosby" sweaters on Etsy, or the 157 on eBay. To describe a busy, ugly sweater as a "Cosby sweater" is, at this point, practically a generic trademark.
This might be why artist Andrew Salomone, who got a fair amount of online publicity for making a Cosby sweater patterned with Bill Cosby wearing a Cosby sweater, never heard from the entertainer's representatives. "My suspicion is that they know about my project and they just aren't interested," emails Salomone. "But they haven't sent me any legal stuff either, so maybe that means he approves."
With a website like Cosby Sweaters, that has a million page views and 500,000 uniques a month, Cosby's legal team might be able to argue trademark dilution or confusion. But there's definitely a case to fight it. (Patterson Belknap Webb & Tyler did not return our request for comment.)
But they can't: Only weeks before the cease and desist, Kmiec quit his job at videogame company Electronic Arts to run Cosby Sweaters full-time. "I can't play chicken with them," he lamented. "I can't afford to do it." The site has decided to surrender, for now reverting to their bland LLC name Next Impulse Sports, while they mull over their new identity.
Kmiec has one idea: "We're gonna rename our site Claire's Pajamas."
[photo by AP]