Karthik Subramaniam and Shrudula Murthy
Disney is one of the largest media organisations in the world having companies such as Marvel, Pixar, Lucasfilm, National Geographic and ESPN under their umbrella. While they do ensure that they have the highest level of protection for the intellectual property for the assets that they own, they also need to ensure that they do not infringe on anyone else’s rights. In a cut-throat world where any slight mistake can lead to expensive repercussions, especially for large organisations such as Disney which have a reputation to protect, legal teams can often go on overdrive in an effort to protect the company from taking any wrong steps.
When any individual registers as a user on any social media platform, they assent to the Terms of Service (ToS) put forth to them. The assent is generally given while registering for a service, where the ToS is displayed for users to access and understand before assenting. The ToS clear out the legal aspects of various issues such as developer rights, redistribution of content and privacy conditions amongst various others. Agreeing to abide by the ToS while signing up for a service creates a contractual relationship between the user and the platform. The ToS of Twitter clearly mentions that any content posted, displayed or submitted on Twitter are solely owned by the user putting them up, and Twitter is provided with a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods available. Through this, we get a clear understanding that the sole owner of any content uploaded would be the individual who uploads it and they would be providing Twitter with certain licensing rights. What is important to clarify however, is that a tweet can be considered as having a copyright only if it fits into the mold of what can be copyrighted by the applicable copyright laws. With Disney wanting to use the content of Twitter users across the globe, but with the fear of being held liable for possible infringement, Disney might have taken the step of putting forward a legal notice to protect themselves. The most perplexing question that arises after this is with respect to why Disney would have even needed to go ahead with putting forth legal notices on Twitter.
- Applicability of fair use principles
There are certain instances when an individual or entity can use content of other individuals. It is common practice for personalities and companies in the entertainment industry to often use content uploaded by people online on social media platforms. On the Jimmy Kimmel Live! TV Show for example, the Mean Tweets segment conducted uses tweets uploaded by various users. On this segment, celebrities starring on the show read out tweets uploaded by users that target the same celebrity, with the intention of humoring the audience. This however does not fall under infringement of copyright of any content or tweets. Copyright laws to a great extent look at protecting the commercial exploitation of protected content. They provide a few general exceptions through “fair use” policies. A general four point test is conducted to determine whether the use of any copyrighted material falls into “fair use” or not. The four-points used to do so (derived from Section. 107 of the Copyright Act of the United States of America) are as follows:
i. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
ii. the nature of the copyrighted work;
iii. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
iv. the effect of the use upon the potential market for or value of the copyrighted work.
In this scenario it would depend on the manner in which Disney used the content of the tweets put forward by people using the hashtag MayThe4th. The usage of the tweets by Disney would have to go through the four factor analysis. In the scenario that usage of these tweets did not fall under fair-use, then Twitter users in effect could sue Disney for violation of their copyrights. Thus, it could be interpreted that Disney flagged out the tweet with the terms and conditions as a precaution against future claims of infringement from Twitter users.
2. Cross-platform implications
Another issue that would arise would be the implications of the situation occurring on an online platform that was not affiliated to Disney, which had its own Terms of Service (ToS). Since the platform on which Disney and other individuals present in was Twitter, the ToS of Twitter would be applicable to them. Twitter does not consider “re-tweeting” any content to be infringement. However, with Disney having a presence across multiple media platforms, the possibility of them sharing it on other platforms definitely does exist. In case sharing across platforms does occur, the Twitter ToS would be applicable with respect to sharing content in platforms apart from Twitter and its affiliates. Due to the ToS applicable on Disney, the following can be considered as the ways through which anyone could use copyrighted content, apart from usage for fair use, from Twitter:
i. Since content uploaded by each user is owned by them, and the license provided to twitter to use such content is non-exclusive in nature, Disney could obtain individual permission from each user. While the ToS of Twitter clearly states that Twitter has a royalty-free license with a right to sublicense any content uploaded on the platform, Disney could obtain a license from Twitter to access user content. However, the ToS also mentions that express and informed consent must be taken from users if someone’s Twitter content is used to promote a product or service. While this is what Disney attempted to do, the manner in which this was executed clearly had various failures.
ii. The Twitter ToS mentions this: “Twitter has an evolving set of rules for how ecosystem partners can interact with your Content on the Services. These rules exist to enable an open ecosystem with your rights in mind. You understand that we may modify or adapt your Content as it is distributed, syndicated, published, or broadcast by us and our partners and/or make changes to your Content in order to adapt the Content to different media. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.”
The presence of this clause in the ToS allows anyone to quote a tweet without the user’s permission if the tweet is embedded. Thus, a tweet can be reused by another individual on a different platform but when it is viewed, it will be rendered through the original platform itself. Thus, one is essentially using Twitter’s services as it is one of the tools provided by them, and the information is directly pulled from the service they offer.
While this action of Disney has frustrated Star Wars fans across the world, no one could say that they were surprised. Over the years, Disney has garnered the reputation of going a step ahead of everyone else with respect to the protection of their intellectual property. As explained above, Disney may not own a trademark over #MayThe4th as the characteristics of this hashtag are not in keeping with the requirements of trademark laws and the possibility of them claiming it would be slim. Given that Disney did not own the trademark over #MayThe4th, there would be no binding contract on Twitter users who used the hashtag due to this leading to an absence of an offer from Disney. When users agree to certain terms of service, it is done with the intention of availing a certain service provided by the platform. In the absence of this, the users are not required to comply with the same.
Even if one assumes that Disney did have a Trademark or would acquire one in the future, it would still not form a binding contract on the users as the criterion of consensus ad idem was missing. The terms and conditions were not mentioned in the first tweet and there is a huge possibility of people using the popular hashtag even without the knowledge that such conditions existed.
When looking at why Disney would have chosen to go ahead with wanting to impose legal notices on users of a hashtag, a clear understanding that they would have done so to prevent any future copyright claims with respect to the content they put forward arises. However, a diversified multinational mass media and entertainment conglomerate, with a massive legal team clearly faltered in the way it chose to approach the situation. All Disney had to do was analyse whether the content they would be creating fall under the ambit of fair use or not, and if it did, they would have required to have taken consent from users in a more effective, legally established manner.
With the advancement of technology, situations like these are prone to arise more frequently. Organisations need to be prepared to tackle such circumstances in a better manner, so as to continue maintaining their relationship with their end customers, while also maintaining required legal compliance. While protecting one’s intellectual property assets is definitely important, managing to do so without enraging the consumers and fans is imperative as well. It’s for Disney to bring balance in the Force and not leave it in darkness for the fans.
Part 1 of the blog
Part 2 of the blog
This is part 3 of a 3-part blog written by Karthik Subramaniam and Shrudula Murthy, Second Year Undergraduate Students of Law at NALSAR University of Law, Hyderabad. They can be contacted at their respective email id at [email protected] and [email protected] The views expressed are personal and do not express views of the organisation.
Picture Courtesy: https://www.starwars.com/star-wars-day–
(Image in Public Domain)