S. Claus, Esq: Intellectual Property Superstar

With the U.S. elections behind us, we can now look forward to the last remaining great countdown for 2012 -- how many shopping days are left until the Christmas holiday. Part and parcel of this holiday is, of course, the omnipresence of Santa Claus. The ubiquity of Santa Claus is so widespread in the western world that we take for granted how it came about that the rotund, ruddy-cheeked gentleman with the white beard and distinctive red-coloured garb has become a figure of such world-wide recognition. This Kat found himself pondering the question after reading an interesting article in Bloomberg Businessweek--"Making of Santa Is Big Business as Schools Teach Reindeer Skills" here, which talks about how the Santa Claus business has expanded both in subject-matter and time. The article got me to thinking: Where does Santa Claus come from? In particular, is there an IP angle to the story? The answer is -- yes indeed.

By most accounts, the figure associated with Santa Claus derived from various strands of tradition in Northern Europe, although the more general notion of a munificent bearer of gifts is found in many cultures. But that alone hardly accounts for the modern success of the Santa Claus figure. Digging a bit deeper in the story suggests that Santa Claus is perhaps the most durable IP success story of modern times. By most accounts, the first of the two seminal moments in the development of the modern Santa Claus figure occurred in 1823 with the publication (appearing initially anonymously in a Troy, New York newspaper) of the immortal poem "A Visit From St. Nicholas", or, as we are wont to call it,"The Night Before Christmas". And so it begins:

'Twas the night before Christmas, when all through the house
Not a creature was stirring, not even a mouse;
The stockings were hung by the chimney with care,
In hopes that St. Nicholas soon would be there;
The children were nestled all snug in their beds,
While visions of sugar-plums danced in their heads;

Most people credit Clement Clarke Moore as being the author. Moore was a Professor of Oriental and Greek literature at Columbia College, now Columbia University. He also donated land from the family estate that served as the foundation of the General Theological Seminary. He served there as a Professor Biblical studies and compiled a two-volume Hebrew dictionary (though we rather doubt that he translated the poem into either Greek or Hebrew).

Not everyone is convinced that Moore actually composed the poem. Redolent of the Shakespeare/ Marlowe/ Bacon/ De Vere saga, Professor Donald Foster argued strenuously that the real author of the poem was Major Henry Livingston, Jr., who was distantly related to Moore's wife.

Whoever was the author (and most believe it was indeed Moore), the poem became the most successful attempt to convert the various strands of the Santa Claus legend into a literary form that enjoyed popular consumption, though how popular as a literary form is difficult to measure. In the light of what seems to have been a high level of literacy in the United States given the period, the really interesting question is how the poem was distributed from its initial publication in a small local newspaper in upstate New York to reach a critical mass of penetration and how this penetration then translated into turning the work into a cultural icon. Then, as now, copyright is as much about distribution as content creation.

Whatever the answer is to the question of how the poem succeeded in its distribution function, the second seminal moment in turning Santa Claus into a cultural icon was to convert the literary figure into a popular visual one. The person generally considered as the father of the modern image of Santa Claus was Thomas Nast, the famous American illustrator of the second-half of 19th century. In 1863, a picture of Santa Claus illustrated by Nast appeared in Harper's Weekly (the figure is covered with an American flag, it being the time of the Civil War in the U.S.). For nearly 20 years, Nast continued to publish visual depictions of Santa Claus, whereby many of the features that are today associated with Santa Claus were gradually included.

If the initial publication of the poem--"A Visit From St. Nicholas"--came from the media periphery of upstate New York, the Nast series of visual depictions of Santa Claus from the outset enjoyed the platform of one of America's most influential publications. Moreover, it may be the case that some forms of the visual depiction of Santa Claus that are universally recognized today were not always in the public domain, but rather may have belonged to Nast (or his magazine).

In any event, taken together, the efforts of Moore and Nast succeeded in taking the St. Nicholas/ Santa Claus figure and suffusing it with a fixed but flexible set of cultural meanings that sooner or later became the purview of the public domain. With so much of current discussion on copyright and the public domain focusing on the idea/expression dichotomy and what kinds of information should ab initio remain in the public domain, the Santa Claus saga reminds us of the notion of the public domain in its classic sense, where the work, once protected, becomes free for all to use.

From this public domain, creative derivations of Santa Claus have and continue to be created, whether in music, movies, drama, or in the historical foundations of the figure--literary and artistic works. Contrast this with the fate of Faust, wherein Goethe took an extant oral legend from which to compose his masterpiece for the ages. There have also been numerous visual depictions of Faust, but this Kat has been unable to find that any cottage industry that ever developed for Faust in a manner that begins to ape the success of Santa Claus.

As the Bloomberg Businessweek article describes, the range of schools that train students "to be Santa Claus" give expression to the public domain status of the Santa Claus personality (protected perhaps by a neighbouring right of performance for each of the tens of thousands of persons who depict Santa Claus in stores throughout the world). This Kat can think of no better example of how the public domain interacts with individual creation, whereby the basic cultural status of the figure is free to all without deleteriously affecting the ability to give one's own creative expression. Indeed, the discussion in the article considers whether Santa Claus can be made a your-round source of creation (and commercialization).

As we approach the zenith of the Santa Claus season once again, let us all tip our hats to S. Claus Esquire, a one-of-a-kind IP success story.