Today we’re bringing you an article that is a little different from our usual style. When our shop first opened, we knew almost nothing about Disney intellectual property. All we knew was that there were thousands of other shops who used Mickey and Minnie on their products on Etsy. When we did some research, we found only some of the answers we were looking for.
There are bits and pieces of answers we were looking for, but we couldn’t find one place to read all about it. So, we are bringing you “what’s the deal with Disney intellectual property”. This article is written by us using a variety of sources including web pages, books, conversations with small shops, and advice from lawyers who reached out to us, or published information on the web.
That being said, this is an informational article and is NOT meant to advise you on any legal issues – just inform you. We are huge supporters of small shops, but we wanted to help you be as informed as possible before creating or continuing to sell any products!
What is “intellectual property”?
Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. Copyright Law gives a “bundle of rights” comprising the following exclusive rights:
- To reproduce the work
- To make derivative works of the work
- To distribute copies of the work to the public (sale, rental, lease, lending)
- To perform the work publicly
- To display the work publicly
Upcounsel defines the legal use of Disney intellectual property as follows.
Legal Use and Intellectual Property Protection of Disney Characters
The Disney Group takes Disney trademark infringement seriously and has copyright and trademark registrations to protect its characters. Anyone who wants to use the characters from the Disney franchise must follow all legal requirements to avoid infringing on the company’s intellectual property rights. The Disney Group and Walt Disney have created a series of extremely memorable and beloved fictional characters in modern culture.
A copyright exists to protect original works, such as books and movies, while trademarks protect brand names. A copyright or trademark owner for a character will help to prevent anyone else from using the same character without the owner’s permission.
What Disney characters are classified as Disney intellectual property?
It would be impossible to list every character, movie, ride, attraction, song, show, etc that falls under Disney intellectual property.
To sum it up, all intellectual property rights on the brands, characters, titles, and other properties of Disney are owned by the Walt Disney Company and its affiliates and cannot be used.
Disney’s anti-piracy clause restricts:
- Feature-length motion pictures
- Animated productions
- Other elements from Disney productions
This would include Mickey Mouse, Minnie Mouse, Donald, Daisy, Goofy, Chip, Dale, the Disney villains, Disney princesses, Pixar characters, etc etc etc. Anything drawn or designed by Disney cannot be used.
What about fairytale characters, like the original Alice in Wonderland?
Disney has adapted many old fables and fairy tales into their hit movies. For example, Alice in Wonderland. Alice in Wonderland was written in 1865 by Lewis Carroll. Alice’s Adventures in Wonderland, the original book, has long since lapsed into the public domain. It can be freely used and reproduced.
Disney’s movie version, and any images and music from it, will not lapse into the public domain for decades yet. It was released in 1951, so the earliest it might enter the public domain is 2046. However, Disney has a track record of lobbying for, and obtaining, copyright extensions when its earliest copyrights are nearing expiration, however, so the actual expiration date on the movie may be much later. Technically, Mickey should have lapsed into the public domain by now, but Disney has obtained multiple copyright extensions to keep him outside of the public domain.
So, this image of Alice in Wonderland could be used on your products and sold.
But this image, seen below, could not.
Is this a way around the intellectual property laws?
Ask a lot of small shops, and they will say their products are “inspired by” Disney. This statement is true, but this does not mean that you are in any way safe from a cease-and-desist letter from Disney. This is not a blanket statement, but for the most part, if you use a character that was drawn or invented by Disney, you can be sued by the company. Writing “inspired by” does not keep you safe.
What does keep you safe is if that product is “inspired by” but not a copy of a Disney character. For example, if you sell Disney-inspired bows, you could have a Cinderella bow with blue and white, and little mice running around the top. You could not have the mice be Jack and Gus-Gus, or an image of the Disney version of Cinderella on the bow.
Another common statement is that your product is considered “fan art“. Fan art is absolutely okay to make and share. However, if you are drawing an almost exact replica of a Disney character, you cannot sell your fan art. There are no protections for selling fan art that is a near copy of a Disney character.
A third common statement is fair use. According to the United States Patent and Trademark Office, fair use refers to limited circumstances when it may be permissible to make reference to or reproduce a sample of a protected character without getting permission from Disney. One example of fair use could be a critical review of a Disney movie that included an image of a character from the movie (Legal Zoom).
Can “fair-use” or derivative work protect you? In terms of derivative work, some argue that you can transform an image enough from its original form to not be an identical copy, and thus be “derivative work”. While derivative work does exist, it is extremely unlikely you will be able to use Disney-inspired characters from this “loop hole”. Disney has copyrighted images in one source says “15 ways from Sunday” to prevent you from doing this. Contrary to popular belief, an intellectual property lawyer shared that you can’t just change X number of elements or a certain percentage and claim it is new and unique. If something is recognizable as let’s say, Mickey Mouse, then it is infringing.
Many listings have “not affiliated with Disney” written at the bottom. Sadly, this does nothing, other than make it clear to customers you are a small shop. It will not protect you from a cease-and-desist from Disney.
How is everyone getting away with this?
If you search “Disney” on Etsy, there are thousands of shops that come up selling products with Mickey Mouse, princesses, and more. Many of these shops are using Disney intellectual property.
The reason they are able to get away with it has never been stated by Disney, and could change at any moment. What we do know is that Disney does go after shops who could be taking away a larger portion of their (Disney’s) sales and they can, and do, go after even the smallest of shops who violate their copyright. Just a year ago Disney sent a cease-and-desist to a shop selling passholder magnets with Disney characters who had less than 5,000 sales on Etsy.
How does Disney pick what shops to issue a cease-and-desist?
This information is not offered up by Disney. But, the likely answer from several sources we spoke with is that Disney will issue a cease-and-desist to a shop that is large enough to be taking away some of their sales. The Disney community has a range of shops, from young teens selling their handmade crafts on Etsy, to shops with tens of thousands of sales who have manufacturers, websites, and more. It is more likely for Disney to go after those shops with tens of thousands of sales, but that does not mean they will not go after smaller shops. The only way to prevent an issue like this is to not violate Disney’s intellectual property.
Disney has an email address and phone number that you can call to report shops and organizations who could be violating their intellectual property. A source told us that they get hundreds of emails and calls a day, and will periodically do a “sweep” of Etsy and other online shops. The same source further stated that shops who have been reported multiple times are more likely to “catch the eye” of Disney.
An official memo from Disney says:
“Disney takes the enforcement of these rights very seriously. We protect these rights so that we can continue to provide quality entertainment that measures up to the standards that our audience has come to love and expect. We welcome reports of suspected infringement of any of these rights.
Please direct reports to us via one of the following methods:
Voice Mail: 818-560-3300
Mail: The Walt Disney Company Antipiracy Group
500 South Buena Vista Street
What happens if I get a cease-and-desist?
A cease-and-desist is a letter from Disney notifying a shop owner of their infringement and is the first step to ask an individual or business to stop the illegal activity. The purpose of the letter is to threaten further legal action if the behavior does not stop.
If you get a cease-and-desist letter from Disney, you have to immediately stop selling your ‘illegal’ products. These products cannot be sold ever again. You may be asked to “destroy” the products, and in some cases you are required to show proof of the disposal of your inventory. You may be required to pay a portion of sales to Disney. You will be on Disney’s radar from this point on, and if you continue to violate IP, you could be sued.
An example someone shared with us about a cease and desist they received from Disney.
“I used to hand paint toms shoes with Disney characters and sell them on Etsy. I got a cease and desist letter which I declined (I was a dumb college kid at the time) who said because I was free-handing the images they were my artistic representation of characters. I got sued for 20k”.
The best way to avoid a cease-and-desist is to not sell products that violate Disney intellectual property.
Is there a way to legally use Disney intellectual property?
There is, but unfortunately, it is unlikely. In order to use Disney’s characters, you must first get their permission.
Legal Zoom says: “One way to legally use Disney characters is by getting permission to use them from Disney Enterprises. A variety of Disney corporate entities own the intellectual property rights to Disney characters. The official Disney website can help you determine who owns rights to the character you wish to use and how to seek permission to legally use the character. You may receive permission in the form of a letter or an email message. Disney may require an individual or organization that wants to make extended commercial use of Disney characters to enter into a licensing agreement where the user pays Disney for rights to use the character. Disney may also refuse to give you permission to use its characters.”
The likelihood of Disney giving you permission to use their characters is very slim. There have been shops who have been successful with this, most notably Danielle Nicole Handbags, Cakeworthy, and The Mouse Merch Box (one of the first, if not the first, to be approached by Disney rather than approaching the company themselves). However, most shops will not have any success requesting permission to use characters.
Can I make mouse ears, or use the Mickey silhouette?
Mouse ears are a definite yes. There are a vast amount of shops who sell mouse ears, and they are legally allowed to. Disney does not own the rights to mouse ears. What they do own the rights to is Mickey Mouse and Minnie Mouse. So, while ears are okay, the silhouette (including the head of the mice) is not okay. Likewise, anything that resembles the likeness of a character is not okay. If you reproduce Mickey Mouse, or something that looks like Mickey Mouse, you could be violating their copyright.
This is a definite grey area, and can get confusing. If you have more questions, the best place to get answers is an intellectual property lawyer.
Can I use Disney fabric to make my products?
According to a lawyer on Avvo, a notice of “copyright” may be found printed on fabric. The 9th circuit Court of Appeals has addressed the existence of a protectable copyright in United Fabrics Intern., Inc. v. C& J Wear, Inc., 630 F.3d 1255 (9th Cir. 2011). Thus buying fabric or cloth for the purpose of manufacturing or making crafts for sale will likely require a license. The Asker should contact the manufacturer of the fabric to determine their requirements for use of their fabric in making craft items for sale.”
To use the fabric commercially, you may need to obtain an additional license. The best advice is to do your research before you make any products out of a Disney fabric, including contacting the manufacturer of the fabric, reading the tags, or doing further research.
So what can I sell?
There are many limitations when selling Disney inspired products. The best answer to this question is, be creative. Do not use Disney characters in your designs. Be creative and find what inspires you in the parks or movies, and find a way to make that a product or inspire your designs.
If you choose to use Disney IP, know that you are putting yourself and your business at risk. It is never too late to stop using intellectual property. Even if you have been using it for years, taking it down now is better than keeping it up.
What about Disney tags and titles?
Using Disney trademarks (the words “Disney”, “Mickey Mouse” etc) anywhere in the listing (title, description and tags) is trademark infringement. It doesn’t even matter what the item is or whether it uses any Disney characters. By the simple fact of Disney’s lawyers searching for their trademarks, and finding them, has proved trademark infringement. Be creative with your titles – instead of saying “Mickey Mouse Shirt” you can say “Mouse Shirt” or “Magical Mouse Shirt”. Likewise, avoid using trademarked words in your tags.
Avvo is a great source where lawyers can contribute answers or advice based on questions. However, the only way to know for sure is to contact an intellectual property lawyer. If you are a growing Disney-themed shop, we recommend taking this step to answer any questions you have.
If you have feedback, questions, comments, or advice, let us know in the comments of this article!