DISNEY AND INTELLECTUAL PROPERTY
Today is the long-awaited release of the first new Disney Princess movie in three years!
Okay, we know what you’re saying. Moana isn’t technically part of the official “Disney Princess” media franchise (then again, neither are Anna and Elsa, arguably two of the most successful princesses of all time), but she definitely meets the loose definition. To quote a snarky demigod in the new film, “If you wear a dress and have an animal sidekick, you’re a princess.”
As a character, she’s likely to pop up on all types of merchandising opportunities, just like the more traditional princesses. Just in time for the holidays!
A question we get a lot is “How can I use Disney characters?” The Disney companies have created some of the most memorable characters in pop culture, so it’s not surprising that entrepreneurs may wish to put an image of Moana on t-shirts this season. But please take care not to infringe Disney’s intellectual property in doing so.
Disney is famous for policing its intellectual property. Characters are protected with both trademark and copyright registrations. A trademark protects a brand name, and a copyright protects an original work. As an owner of trademark and copyright registrations, Disney can stop others from using the character without permission, but only the aspects that are unique to Disney.
For example, the 1950 film Cinderella was based on an old folk tale about goodness triumphing over unjust oppression. The earliest documented version of the tale comes from ancient China, whereas the most popular version (prior to the Disney cartoon) was Charles Perreault’s Cendrillon, published in 1697. Needless to say, the underlying myth is long out of copyright, and thus anyone can write a “Cinderella story” but if you tried to make a movie in which the heroine wears a beautiful fluffy blue dress and glass slippers, and who has a fairy godmother who says “Bibbity, bobbity boo!”, then Disney would have a problem with this, since those are elements they added.
In fact, in 1989, Disney sued the Oscars when the Academy hired an actress to portray Snow White without Disney’s permission in the Academy Awards opening number. The Snow White portrayal on the awards show used elements familiar to audiences that were part of the elements Disney had added and popularized in their Snow White movie rather than elements based on the original folk tale.
So does Moana the movie draw on any tales (either mythology or history) in creating the character of the plucky girl with navigational talents? We’re not sure yet. We do know it’s not a straight adaptation of any one particular story, but most likely drawing from Polynesian folktales to create something new. And the particular image made famous in the movie is entirely 100% Disney’s creation.
The best way to legally use Disney characters is to obtain permission. A number of Disney corporate entities own the intellectual property rights to the characters. The Trademarkia database can help you determine who owns trademark rights to the particular character you wish to use, as well as the address to seek permission to legally use the character. Or you could use the Disney Licensing Studio website. Disney may require that you enter into a licensing arrangement where you would pay Disney for the rights to use the character if you wish to make extended commercial use. Alternatively, they may deny you permission.
Another way you may be able to legally use Disney characters is to make what the law calls “fair use” of the characters. Fair use refers to circumstances where it may be permissible to make reference to a character or reproduce a sample without obtaining permission. One example would be this article. We’ve included the protected images of Moana because we are referencing the character. We’re not making a commercial use, but rather are using the images to illustrate a teaching example.
Another example of fair use might be mentioning a Disney character as a passing reference in a work of fiction. For example, a character in a novel could describe a girl in her class as being “as adventurous as Moana” but the author wouldn’t want to actually include the Disney character as an actual character in the book.
So can you go and put Moana on t-shirts this season? Short answer – not a good idea unless you’ve obtained permission from Disney. Does that mean nobody does it without a license? Of course some people do, but Disney is a strong policer of its rights, and sooner or later, your Etsy shop will get taken down or you’ll receive a cease & desist letter. And Disney likely has much deeper pockets than you.
So go enjoy the movie, but if your kids want merchandise, stick to the officially licensed variety.
Heather A. Sapp is the Senior Trademark Attorney at LegalForce RAPC. Prior to joining LegalForce, Heather was a Trademark Examining Attorney at the U.S. Patent & Trademark Office for more than a decade. She is also a popular speaker on the writers’ conference circuit, speaking on intellectual property issues for authors under her Young Adult fiction pen name, Amanda Brice.
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