DMCA = Darth’s Malicious Copyright Attack

Warning: careful about clicking some of the links. There may be spoilers. Well, a spoiler.

I have it on good authority that Star Wars fans were surprised to discover an action figure1 of a major character from the upcoming Star Wars: The Force Awakens movie for sale at their local Walmart. What’s more, said action figure might constitute something of a spoiler because the packaging depicts the character as holding … something that might give away a hitherto unknown secret about the character.2 Excited, these people took pictures of the toy (with packaging) and uploaded to websites, such as Star Wars Action News and plain-old Facebook and Twitter. Disney and/or LucasFilm then got those images removed by sending DMCA take-down notices to their hosts. TorrentFreak has details. Fortune and Ars Technica have also covered.

figures1

These aren’t the action figures you’re looking for. (Yes, I know Ars Technica beat me to the joke.) Image of the original twelve Star Wars action figures from this excellent article.

If you’re OK learning a possible spoiler, here’s the photograph at issue.

Ah, the delicate balance between fandom and intellectual-property enforcement! This seems a little heavy-handed, no? Maybe an instance of automation gone overboard? Or, perhaps the toy was mistakenly released early and someone wants to stop a certain spoiler from getting out? Relating to the last theory: the DMCA notifications have described the action figure as “unreleased.”3 Hmmm.

Well, obviously, you can take a picture of your lawfully-acquired toys and post them on the internet. And, yeah, I agree with that. And, so it’s just as obvious that Disney/LucasArts’ DMCA notifications are unlawful, right? Didn’t we just have a big legal decision on this, maybe involving Prince and dancing babies?

We did have a very interesting opinion that is relevant to the issue of whether the DMCA notifications are lawful, but it doesn’t necessarily follow that those notifications are illegal. That might be the real shame.

First things first: is it legal to post pictures you took of a Star Wars action figure you just bought at Walmart? Most reports have placed heavy emphasis on the fact that the uploaders had legally acquired the toys. And normally you have fairly broad rights to do with your possessions what you want. Copyright law, however, only gives you two rights specific to legal ownership of an object that is subject to copyright:

  1. You have the right to further distribute the object. This is one of the bedrock principles of copyright law: the First Sale Doctrine. It’s where regular property rights meet intellectual property rights, and the regular ones win.
  2. You have the right to publicly display the object… BUT only “to viewers present at the place where the [object] is located.”

Neither of these rights quite fits the situation. The right to display publicly is limited to physical viewers and probably doesn’t extend to broadcasting-type display, as through the internet. In addition, there’s the small matter of the intervening photograph you had to take, which implicates a different right: that of reproduction.

When specific defenses don’t apply, we resort to fair use. And this is a bang-on fair use. Let’s run through the factors:

  1. The purpose and character of the use. Posting the photograph and saying, “Look at this!!” probably counts as “commentary,” but only barely. You aren’t trying to criticize on the figurine. Curiously, if you kind of went nuts about the spoiler (“Look! S/he is holding a ….!), that actually might help your case. Or, you might describe the figure as something worth buying for Christmas (as I suspect Star Wars Action News was going to do). You also aren’t really trying to commercialize anything, even if your website makes money for you. And it’d be obviously wouldn’t be ”commercial” for fair-use purposes to upload a picture if you were trying to sell it, since selling it is otherwise perfectly legal.
  2. The nature of the work. The figure is of middling expressiveness. It’s based on a pre-existing creative work, and much of that process is dictated by external needs, though there is certainly creativity in converting an actor-in-costume into a figurine (the pose, for example). The pre-existing work itself consists of non-protectable elements—most notably, the actor’s appearance—and protectable elements, such as the costume.
  3. The amount and centrality of the taking. A photograph of a three-dimensional object by definition doesn’t take everything, since it can’t show all sides of the object. A good photograph, of course, would show the important side: the front. Then again, the purpose is to identify what the toy is, so it’s only natural you’d select the identifying side: the front.
  4. Effect on the market. Zilch. A photograph of a toy is no substitute for the toy.

This is a fair use. Factor (1) leans slightly in favor of fair use, and the next two factors lean slightly against. Factor (4), however, blows all of the other factors out of the water. If you can’t prove any effect on the market, the other factors need to be helluva in your favor. And here, they’re not.

Does that mean the DMCA notifications are illegal? Maybe. The recent Lenz decision (better known as the “Dancing Baby” case) held that copyright owners (or their agents) must take fair use into account before sending takedown notifications. But the fair-use analysis can be fairly cursory. You just need enough to form a subjective belief that it’s not fair use. While a copyright lawyer would say this was fair use, there’s not requirement that the person forming the subjective belief know diddly-boo about copyright law or fair use.

What if the takedowns were automated? Under Lenz, it seems you can’t even have automatically generated takedown notifications. No computer can hope to identify even obvious instances of fair use.

Does it matter that the action figure was released too early by accident? If you ask me, that’s goes in favor of fair use, not against. There’s no right to prevent spoilers, except to the extent you can claim them as trade secrets. But, by definition, this toy is no trade secret. There is, however, a right to free expression. What’s more, one of the purposes of fair use is to vindicate free expression.

If what Disney/LucasFilm is trying to do is prevent dissemination of public information (albeit accidentally public, but too bad), then what they’re doing is using the DMCA to stop legal speech. I’m personally not going to lose sleep over it. I’m honestly more disturbed over how shabbily Disney/LucasFilm is treating folks (who are, you know, fans). But what if next time the speech in question is political in nature?

Too bad there’s no real mechanism to keep DMCA notifications honest. May the Farce be with you!

Thanks for reading!