Éclairer Hanoukka : considérations sur la propriété intellectuelle pour les créateurs au Canada

Hanukkah, the Festival of Lights, is a time of celebration, tradition, and creativity. For content creators in Canada—whether you’re designing holiday merchandise, crafting social media campaigns, or writing Hanukkah-themed stories—it’s essential to be mindful of intellectual property laws. The festive spirit of Hanukkah offers abundant creative inspiration, but it also raises important questions about copyright and trademark issues, especially when incorporating traditional symbols, phrases, and imagery.

Copyright protects original works of authorship, such as visual art, music, and written content. While the concepts behind Hanukkah symbols—like the menorah, dreidel, or sufganiyot—aren’t copyrightable, specific artistic interpretations or designs of these symbols might be.

In the State of Massachusetts, a company was sued for producing three-dimensional pop-up greeting cards that were alleged to infringe on another company’s copyright in similar designs.  The Court allowed a motion to dismiss with respect to Hanukkah Menorah designs on the basis that copyright protection does not extend to elements of a work that are for all practical purposes indispensable, or at least customary, in the treatment of a given subject matter.  The Court held that menorah designs were insufficiently original to qualify for copyright protection. 

The heavy metal band, Anthrax, was sued in Michigan for copyright infringement for inserting their logo on a Hannukah sweater that closely resembled someone else’s design. 

The lawsuit was ultimately not pursued.

Hanukkah songs, such as the popular children’s tune “I Have a Little Dreidel,” also fall under copyright law. While older compositions may be in the public domain, many contemporary arrangements or adaptations remain protected.

In Canada, fair dealing—akin to the American concept of fair use—allows limited use of copyrighted works for specific purposes like education, research, or parody. However, commercial uses often fall outside these exceptions.

Creators may assume that older works are free to use, but the rules surrounding the public domain can be tricky. In Canada, copyright generally lasts for the life of the creator plus 70 years. If you’re incorporating an older Hanukkah story or artwork, confirm its copyright status to ensure it’s genuinely in the public domain.

If your project involves Hanukkah-themed music, verify whether the song or arrangement is in the public domain, or secure the necessary rights before including it in your work.

Trademark law protects words, phrases, logos, and other identifiers that distinguish goods or services. While generic terms like “Hanukkah” or “dreidel” can’t be trademarked, unique phrases or branded slogans can be.

Content creators and businesses should tread carefully when naming products or campaigns. If you’re creating a Hanukkah-themed game, clothing line, or event, ensure that your chosen name or slogan isn’t already trademarked. A quick trademark search through the Canadian Intellectual Property Office (CIPO) database can help avoid conflicts.

Beyond legal considerations, creators must approach Hanukkah-related content with cultural sensitivity. Misappropriating sacred symbols or using them out of context can cause offense, even if no legal infringement occurs. To avoid similar missteps, engage with Jewish traditions respectfully and consult with members of the Jewish community when developing content.

Practical Tips for Creators

1. Do Your Research: Check for existing copyrights or trademarks before using specific phrases, images, or designs.
2. Use Licensed or Original Materials: Create unique artwork or license images and music from reputable sources.
3. Respect the Culture: Take time to understand the significance of Hanukkah symbols and avoid using them inappropriately.
4. Seek Legal Advice: When in doubt, consult an IP lawyer or professional for guidance.

Hanukkah is a time of light and joy, and your creative work can reflect those values while staying within the bounds of intellectual property law. By being mindful of copyright and trademark issues, you can ensure your content shines brightly and your creativity can illuminate the holiday season without risk of receiving cease-and-desist letters!