A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.
Question: I see people uploading Disney images everywhere so I am going to. You cannot stop me!
Answer: Hey, you be you. Monkey see, Monkey do, Monkey get in trouble, too. Remember that sweet little ditty from the elementary school playground? Just because everyone else is doing it and apparently getting away with it, that does not mean it’s an awesome idea for you to do the same thing. There is nothing stopping Disney from picking you out of the crowd, and suing you for infringement. “Everyone else is doing it” is not a defense.
Anyway, clearly you have mistaken me for someone who would try to stop you if you insist on getting down on your knees, begging for, and receiving a very expensive lesson in copyright and/or trademark infringement from Disney Enterprises, Inc.’s legal department. All I do is write magazine articles. It’s Disney’s problem, not my problem, for Disney to do whatever Disney does to protect its intellectual property (IP).
That said, whatever you see posted on the internet, if it’s Disney’s IP, whoever is posting it (let’s use a name: Joe Poster) might in fact have asked for, and received, permission to do so. How do you know if Joe Poster has permission? You don’t know, usually, because it is not a normal practice for people to post their licensing agreements for public viewing along with the images they post.
By the way, it is actually possible to ask Disney for permission. They even have a website for that, and… here it is (below). Just in case you were considering asking permission before posting every Disney image you can find anywhere that suits you. And, how cool is this? The permission form even has a place for “reporting suspected infringement of Disney intellectual property.” If you’re feeling a bit spiteful, you could report all those images you see everywhere that everyone else is posting, and perhaps get some of those other apparent infringers in trouble (instead of risking getting in trouble yourself).
Requesting Permission To Use Disney Intellectual Property
Disney receives many requests for permission to use its Intellectual Property. To save you time and avoid delay, please review the licensing permissions FAQs to make sure you are submitting this request to the right organization. To view the FAQs, please click here .
Which best describes your profession or interest in making this request: (please check one)
|Author or Publisher|
|Museum or Gallery|
|Mobile app or game developer|
|YouTube video maker|
|Seller, Retail or distributor for business purposes|
|Costume maker or seek to hire costumed characters|
|Designer of decals or posters|
|Stage play, Musical or other Production|
|Cake designer or baker|
|I have a great new idea for Disney|
|I want to make a T-shirt|
|Church or group seeking a public screening|
|Seek to use Star Wars names, characters, images, or clips|
|Seek to use Marvel names, characters, images, or clips|
|Seek to resell or distribute Disney-licensed products on Amazon or eBay|
|Seek to sell or buy a Disney character or Disney-themed product on Etsy|
|To report suspected infringement of Disney intellectual property|
|Other, not listed above|
I, personally, have not tried to ask Disney for permission to use their IP, mainly because I’m more into creating my own art — I have had no compelling reason to see what happens when I ask permission. However, according to the writers of this article, the answer is likely to be no: https://smallbusiness.chron.com/license-sell-disney-characters-products-21576.html, if you do ask. If you’re desperate to do Disney, the article mentions legitimately buying and re-selling Disney items that you get from people who do have permissions/licenses.
In the past, Disney has been notable for aggressive enforcement of IP infringement in any form. Their reputation for legal rapaciousness has probably adversely affected their goodwill in the community, and that may not be completely lost on the Disney people who are responsible for preserving corporate assets like goodwill. Recently, it appears that at least for some kinds of infringement, Disney may be taking a more nuanced approach and trying not to make quite so many enemies of Disney fans by enforcing absolutely everything all the time. I am definitely not advocating infringement, but… read this for more information on what might be a new trend toward tolerance of fandom-based infringement. https://www.racked.com/2017/9/5/16192874/disney-fan-stores-instagram And… of course, we all realize that just because today Disney (or anyone else with IP assets to protect) decides to refrain from enforcing doesn’t mean tomorrow Disney (or anyone else) can’t change their mind and start dragging previously unmolested infringers through court.
A note on trademark enforcement: There is a use-it-or-lose-it aspect to trademark ownership. If trademark owners decide to be nice guys and not enforce trademark infringement, they can weaken their trademark position, or they can lose their trademarks altogether. To some extent, the law forces trademark holders to be aggressive in enforcing trademark infringement. That’s a good thing to bear in mind when we run across corporate entities getting litigious when artists use their trademarks. These corporations may not like having to spend money on enforcing trademark any more than artists like being on the receiving end of enforcement actions.
Then again, trademark enforcement can get a bit over the top, and it doesn’t necessarily have to do with only enforcing infringing images. Here is an article that talks about some of the words from the Star Wars movies (Star Wars movies are now Disney property) that have been registered as trademarks. https://www.duetsblog.com/2016/10/articles/fair-use/a-handy-list-of-star-wars-references-that-might-get-you-sued/ To me, some of these words look an awful lot like public domain – words of the sort that can’t be trademarked (bounty hunter? really?) but to stop this overreaching nonsense someone would have to care enough to go to the trouble of challenging the trademark registration.
Fortunately, as a general rule there is no use-it-or-lose-it aspect to copyright. You don’t normally need to worry about your copyrights vanishing into the public domain if you fail to enforce them.
A note on the penalties for willful infringement, as compared to innocent infringement (see Chapter 5 of the Copyright Act):
For willful infringement: “In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.”
Innocent infringement carries much lower penalties: “In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.”
In light of this penalty structure, it might not be the best plan to go around announcing, in writing, through records like emails, and communications with people who write articles for international online magazines (cough, ahem), that you’re planning to infringe with impunity. That might, possibly, seem a bit willful. Just sayin’, But like I said, I’m not stopping you, so…. you be you and do whatever makes you happy with respect to uploading Disney images everywhere. Do keep us posted, and let us know how that works out for you.
If you see other people posting Disney images online, these other people might have permission to do that. Or they might be infringing, there is no easy way to know which is happening without asking the poster if they got permission. Either way, if you respond by posting Disney images without permission, Disney might pick you out of the crowd and sue you. Whatever other people are doing will be irrelevant to a lawsuit between you and Disney. If you genuinely didn’t know you were infringing, the penalties aren’t that bad. If you infringed willfully, the penalties can get very expensive. Consider using your own capacity for independent thought, and perhaps resist the temptation to follow the crowd when following the crowd is not in your best interest.
Sources and Further Reading:
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