A (Vaguely) Law Themed Christmas Miscellany

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A (Vaguely) Law-Themed Christmas Miscellany

A (Vaguely) Law-Themed Christmas Miscellany

A (Vaguely) LawThemed Christmas Miscellany To mark the Season of Goodwill, we have dispensed with the usual lawyers’ briefing format in favour of a series of Christmas-themed, legal(ish) questions.

Simon Baker Partner | Commercial simon.baker@laytons.com +44 (0)20 7842 8000

Michael Edgar Solicitor | Commercial michael.edgar@laytons.com +44 (0)20 7842 8000

Rebekah Parker Associate Partner | Disputes rebekah.parker@laytons.com +44 (0)20 7842 8000

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Does Santa Claus wear red because of a soft drink?

You may have heard this one: according to rumour, Father Christmas owes his jolly demeanour, portly frame and red costume not to traditional folk tales but to the marketing department of an exceedingly famous brand of cola, which chose red and white in the 1930s to match its branding. (According to even darker – and somewhat less comprehensible – rumour, Father Christmas is himself an invention of the same people!)

Is Santa, therefore, the intellectual property of a global business?

No. The myth has held its ground, despite the masses of instantly available reality lying just a click away. Santa wore red and white long before The Coca-Cola Company portrayed him that way. It’s true that at one time there was no single, accepted image, leading to fat, thin, happy, sombre, tall and elfin Santas wearing red, blue, green or yellow. However, by the early years of the twentieth century he had gained his present red-garbed, smiling, rotund form.

A (Vaguely) Law-Themed Christmas Miscellany

Does Santa Claus wear red because of a soft drink?

You may have heard this one: according to rumour, Father Christmas owes his jolly demeanour, portly frame and red costume not to traditional folk tales but to the marketing department of an exceedingly famous brand of cola, which chose red and white in the 1930s to match its branding. (According to even darker – and somewhat less comprehensible – rumour, Father Christmas is himself an invention of the same people!)

Is Santa, therefore, the intellectual property of a global business?

No. The myth has held its ground, despite the masses of instantly available reality lying just a click away. Santa wore red and white long before The Coca-Cola Company portrayed him that way. It’s true that at one time there was no single, accepted image, leading to fat, thin, happy, sombre, tall and elfin Santas wearing red, blue, green or yellow. However, by the early years of the twentieth century he had gained his present red-garbed, smiling, rotund form.

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Am I allowed to use a Christmas song for commercial purposes?

Which song is your favourite Christmas ‘classic’ – as in, neither a traditional carol nor the sort of tune that graced Top of the Pops in the 1970s and 80s during its Christmas Number One heyday?

‘White Christmas’, maybe? Or ‘Let it Snow! Let it Snow! Let it Snow!’ or perhaps ‘Winter Wonderland’? Or how about Gene Autry singing ‘Rudolph the Red-Nosed Reindeer’? Take your pick: but if you’re going to use them for marketing purposes, bear in mind that most of them – including all those just mentioned – are copyrighted. You may not use them without the owner’s permission.

This sometimes confuses people. Maybe it’s because they have been in our collective consciousness for so long (and been sung, and adapted, in places ranging from neighbours’ doorsteps to football terraces) that we believe they are collectively owned. They are not: they’re property. So, if you want to use something in a commercial context, be safe and either ask permission or use something genuinely ancient and in the public domain such as ‘Silent Night’.

A (Vaguely) Law-Themed Christmas Miscellany

Is Santa a trespasser?

In most cases, no. In England and Wales, trespassing on property involves entering without the owner’s consent and with the intention of trespassing. Therefore, anyone who leaves out a sign saying ‘Santa: please stop here!’ is positively inviting him to enter, and so cannot complain (unless he steals or breaks something). Less certainly, you could say that a person with Christmas decorations up and stockings near the fireplace is implicitly willing to receive him as a guest, and so might struggle to complain about the presence of a large, twinkly stranger who has already consumed a good deal of sherry.

However, if you don’t have Christmas decorations up, you could possibly argue for trespass, although Santa would have a decent counter-argument to say that he didn’t intend to trespass as he believed that he and his gifts were welcome everywhere.

In any event, do be careful. Under the Occupiers’ Liability Act 1984, you have a duty to protect a trespasser from a danger that you know of or believe to exist. You must take such care as is reasonable to see that the trespasser does not suffer injury. Therefore, leaving a sharp object at the bottom of the chimney is not a good idea. If you don’t want Santa to arrive, spell it out and leave a clear warning in advance of any dangers. And don’t try to get him on a ‘cruelty to reindeer’ technicality…

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A (Vaguely) Law-Themed Christmas Miscellany

Is it legal to keep a reindeer as a pet?

Provided you comply with welfare and safety laws, don’t upset your neighbours or breach any property covenants, yes. However, they are gentle creatures and do not make good pets.

Best avoided.

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A (Vaguely) Law-Themed Christmas Miscellany

Can I legally give away some of the things my true love gave to me?

First, the numbers. By the end of the twelve days of Christmas, you may think you have seventy-eight gifts (12+11+10, etc.). However, as any contract lawyer at Laytons would advise you, look at the words: the gifts appear to be cumulative – in other words, you get a partridge in a pear tree every day, and five gold rings on each day from day five – which gives you three hundred and sixty-four gifts in total, or one for every day of the year except Christmas (which seems to be getting things the wrong way round).

Even if we ignore the many offences that your over-keen true love has committed by giving you all this – human trafficking, probably illegal trading in swans, noise pollution under the Environmental Protection Act 1990 with all those drummers drumming – your true love has, by giving you such a staggeringly expensive array of gifts, also given you a potentially ruinous inheritance tax charge if he does not survive for seven years.

And then there’s the problem of space.

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A (Vaguely) Law-Themed Christmas Miscellany

If, like us, you have no room for forty maids a-milking, thirty lords a-leaping, three dozen French hens, etc., the question must inevitably be asked: Can I give some of this stuff away?

The answer is as follows: •

If the gift is something that may legally be given (such as turtle doves and geese a-laying), once you accept it you are the legal owner and so can give it away, although you must bear in mind that you are responsible for the animals while you are the owner and so you should ensure their safety.

•

If the gift is something that may not be given, such as a person, you would not become the owner in the first place and so you have no right to transfer ownership.

•

If you are worried about the possible tax consequences of receiving such expensive things, you can reject the gift (although bear in mind that you may not later change your mind and accept it).

Perhaps the most simple and elegant solution would be suggest in advance to your true love that you should just do cards and a book token this year.

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