Disney's Fan-Hammer is well documented. They have gone after fan art of all types over the years with strong legal actions. The most surprising of these was their takedown notice against a Florida preschool that had painted a mural with Disney characters in their school. Disney made them remove it, which they did with the help of Universal artists who replaced it at no cost.
This week's story of Disney legal action falls into a similar level of insanity. Justin Kozisek, a member of podcast Star Wars Action News, posted a photo he took of a product he purchased on Facebook. He was excited, because the product was an action figure of Rey from the next Star Wars film, one he had never seen before, either in person or in photo. Shortly after posting the photo, it was shared wide and far, as fans of the podcast were just as excited about his Wal-Mart find.
Nearly as quickly as the photo went viral it also caught the attention of Disney/Lucasfilm's legal team. They immediately issued a Digital Millennium Copyright Act (DCMA) notice to Facebook, demanding the photo be removed for violating copyright, since the product was neither public nor even announced. Show runner Marjorie Carvalho responded to Disney explaining exactly what had happened, and her efforts were rewarded with an email from Facebook stating, "The Walt Disney Company has retracted their intellectual property report." Carvalho told Ars Technica,
All we did was write a letter, and a few hours later, it was retracted. It pays to take the high road and get your facts in order, rather than overreacting. I feel good about it, and it's nice that they're recognizing they made a mistake.
Unfortunately, she spoke too soon. Within 10 minutes of the phone interview concluding, the entire post was removed, not just the photo. Disney had issued an identical DMCA notice, this time asking that the post be removed. It is possible that Disney's intentions were to remove the entire post, but couldn't because the infringing image had already been removed from it, hence revoking their initial request only to up the ante. In addition to the takedown, Facebook punished Kozisek personally, blocking him from any posts on the social network for 3 days.
The problem for Disney is that the image is now everywhere, including several eBay listings for "pre-order" products, as well as copies that have continued to spread over social networks, either out of excitement or protest against the takedown notice. It would seem that Kozisek has a good position for fair use, considering it is a personal photo of a legally purchased product that he now owns. He didn't sign an NDA before purchasing the figure from Wal-Mart, nor did he promise not to photograph it. He simply paid retail price and walked out of the store.
Has Disney and/or Lucasfilm overstepped their legal authority here? What is your take on the way they handled things? Let us know in the comments.