Should Star Wars Fans Fear Disney Cease & Desist Letters?

Yoda statue outside Lucasfilm - The Presidio by kennejima from Flickr

Yoda statue outside Lucasfilm – The Presidio by kennejima from Flickr

May 4th is Star Wars Day. May the 4th be with you! In light of this geeky holiday and the fact that I will be speaking about the legalities of fan fiction and fan art at Phoenix Comicon this year, I’ve been thinking about what the impact of the Disney buying Lucasfilm in 2012 will have on Star Wars fans.

George Lucas was known for encouraging fans to create fan art and fan fiction. This is an expression of love for Star Wars and gives fans a chance to connect in new ways. In contrast, Disney is known for sending cease and desist letters when they find that a day care or school shows Disney films or if a child-centered business has a mural of Disney characters painted on the wall.

I tell my fellow geeks who want to create fan art or fan fiction to do their research on whose work they want to emulate to see if the copyright holder will be likely to come after them if they discover what they’ve created. I haven’t heard of any Star Wars fans receiving a cease and desist letter from Disney since they’ve acquired Lucasfilm. I’ve sent a message to Disney corporate office asking about their official policy regarding Star Wars fan art and fan fiction.

If you get a cease and desist letter from Disney for your Star Wars fan fiction or fan art, you could try to make an argument that you’re not committing copyright infringement because what you created is protected by the concept of fair use. This is part of the Copyright Act that permits people to add original and transformative content to existing works. This law protects things like parodies.

Never forget that fair use is a defense, not a permission slip. To make a valid fair use argument, the copyright holder will sue you for infringement and then you’ll have to demonstrate to the court that your work qualifies as fair use. The court will consider four main factors:

  1. Purpose and character of your use of another’s work (Are you transforming the original?)
  2. Nature of the copyrighted work you’re copying
  3. Amount and substantiality of the copyrighted work used
  4. Effect on the market (Is your work a substitute for the original?)

This is somewhat a dangerous quest to take on. The general rule is “Disney never loses” when it comes to legal battles. I know of only person who fought Disney and won in a copyright situation.

If you create fan art or fan fiction or are considering creating original work based on an existing work and need to understand the legal risks that accompany your work, please contact a copyright attorney in your community. You can also check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed for my thoughts on fair use.

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Comments

  1. Alex Walker says:

    Hi Ruth,

    Thanks so much for this post. I’ve had exactly this concern today and have been quoting parts of it in discussions at work.

    Anyway taking a shot here. I’ve spent some time on this design, which is getting vetoed by my boss – http://i.imgur.com/tzA2MMY.png

    The labels are computer languages/technologies – so it’s very in-jokey for programmers/geeks. It’s all original art, obviously riffing on Star Wars.

    At the risk of asking for free legal advice (sure you get enough of that), any comments, perspective would be very much appreciated.

    Either way, thanks for the post, regardless.

    • That’s pretty awesome but I can see why your boss vetoed it. The general rules when it comes to Disney are “Disney never loses” and “Don’t fuck with Disney.” From what I’ve read, Disney is more likely to send a cease and desist letter than to sue people, but a lot people just avoid all confrontations with Disney. I can see why your boss wouldn’t want the company to be affiliated with this, but he might let you take the risk with it on your own.

      • Alex Walker says:

        Thanks so much, Ruth. I suspected that may be the answer, but held onto a glimmer of hope 😉 It’s good to know.

        Back to the drawing board!

        (Though I might print a few myself. Everyone here wants one.)

        Sincere thanks again.

  2. Chris Coey says:

    Hi Ruth,

    I searched a few terms and your blog appeared. This is exactly the topic I need to research given that I have recently been working on a Star Wars themed rock band. All of our music and lyrics are original; however; we do use some of the nomenclature from star wars films–“the force, padawan, death star”–so I am concerned about how vulnerable we are to lawsuit. We haven’t sold any of our songs; right now they are available for streaming only. Yet, it is possible that in the future we would sell the songs. You can hear our music, Great Disturbance, at Soundcloud https://soundcloud.com/great-disturbance

    How vulnerable are we to lawsuit?

    Thanks,
    Chris

  3. Jonah Falcon says:

    The answer is “yes”, since Disney’s sending out “cease and desist” letters.

    • Ruth Carter says:

      Thanks for your input. Do you know of someone who got a cease and desist letter from Disney for their Star Wars fan art or fan fiction?

      • In the textile industry, there are many fabrics being made using Disney characters, Star Wars etc., and, in turn, this fabric is being used by indie designers to make finished goods like clothing and accessories (handbags etc.). Would an indie designer be sued or issued a letter if they were to sell goods made with licensed fabrics? And not mass produced goods, just goods that may be requested by a client, or goods that will take up a small amount of inventory in their online shop via etsy, or other source.

        • Ruth Carter says:

          With intellectual property infringement, the only person/company that can come after you is the copyright, trademark, or patent holder. If they don’t know or don’t care about what you did, you’ll never face any consequences. If they discover what you’re doing and feel that it’s infringement, I wouldn’t be surprised if they at least send a cease and desist letter.

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