If there is ever a Copyright Protectionist Hall of Fame built, it should probably be constructed on the grounds of one Disney theme park or another. As regular readers here will already know, Disney is notoriously aggressive in its enforcement of intellectual property generally, and in copyright specifically. Hell, the 1998 CTEA, which extended the terms of copyright, is more commonly referred to as “The Mickey Mouse Protection Act.” Our pages are absolutely littered with stories of Disney bullying others over copyrights, often times to ridiculous lengths.
Well, the shoe is on the other foot in this latest story. You may have seen ads recently for a forthcoming Pixar movie, Onward, which features two elves that take a road trip in a colorful van to try to meet and speak with their dead father. Well, one tattoo artist from California, named Cicely Daniher, is claiming that the depiction of that van represents copyright infringement of her own quite colorful van.
Two weeks ago, Daniher filed a lawsuit against the animation studio for copyright infringement, saying Pixar misled her after the company reportedly requested to rent her Vanicorn for a company outing. Now, a van she says is identical to her own will appear in the forthcoming animated film, “Onward.”
According to court documents shared by the Hollywood Reporter, Jane Clausen, an employee of Pixar, inquired about the rental for a “one day music festival/activity day for Pixar employees and families” on Sept. 4, 2018.
“Your van would just be a show piece and not used in any way other than a visual prop,” Clausen wrote to Daniher. “Are you able to send me some additional photos of the van? We’ve only seen the side, which just blew us away!”
Daniher agreed to rent the Vanicorn for a “confidential sum of money.” But eight months later, she noticed something strange.
What was strange is that the van in Onward shares similarities to her own van. See, the reason Pixar staff wanted to use her van to begin with is that it is painted purple with an artistic representation of a unicorn on the side. The van in Onward shares many of these qualities.
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A post shared by Sweet cicely Daniher (@sweettransam) on May 31, 2019 at 5:18pm PDT
Are those two vans similar? Of course they are! So is Disney/Pixar guilty of copyright infringement? Well…no, probably not. This again is a matter of the idea and expression dichotomy in copyright law. The purpose of that part of the law is to limit copyright protection to specific expression and not mere ideas and themes. For instance, a 1 to 1 copy of Daniher’s design on Pixar’s cartoon van would likely be infringing. The concept of a purple van with a unicorn on the side of it is, however, not protectable. In fact, it’s nearly in trope territory.
Now, to be clear, there may be a contract law issue here. And, even if not, Daniher’s side of the story does make Pixar’s actions sound really, really shitty.
Speaking on behalf of his client, attorney Conor Corcoran told SFGATE that the film’s producer, Kori Rae, called Daniher on June 3, 2019, to apologize for the misunderstanding. Rae apparently admitted Pixar intentionally did not tell her that they intended to use her van because, at the time, the film had not yet been given a title. For that reason, they believed they could not have Daniher sign a non-disclosure agreement, so they stuck with the rental paperwork. Via the legal complaint, Daniher says the contract she signed “explicitly prohibits” the use of any type of visual representation of the Vanicorn for any purpose other than the event itself. The following December, Corcoran registered the vehicle with the Copyright Office.
“It’s unbelievable,” he told SFGATE over the phone on Wednesday afternoon. “She created that van to cathartically get out of a bad marriage, and Pixar took her van and created it into a vehicle for two boys to find their dead father. We’re gonna have our day in court.”
All well and good, but this still probably isn’t copyright infringement. I imagine Disney will argue the same in court.
But what if the parties and actions in this story were reversed? Imagine if Pixar had created its cartoon van first and then Daniher had painted her van? Now imagine that she did vehicle painting and wraps for a living, and sold her similar design? Is there even a modicum of doubt that Disney would be screaming “copyright infringement” in every single courthouse it could?
Of course it would. It’s what Disney does. Which will make it entertaining to watch Disney argue the opposite in court.
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