Readers of my blog will know that one of my pet subjects is the extent to which big business responds to infringements. Often I have called out what I see as a disproportionate response to possible infringement by a small company who may have acted innocently. At times action has been taken by big business against a small company who are not infringing but who big business wants to scare off the outer perimeters of the intellectual property rights that they hold. More and more enforcement strategies of this kind are being seen as inappropriate, with big corporations urged to think carefully about strategy not just in terms of infringement but to also put that infringement in its commercial context.
Against that background the story of Christmas merchandise for the not yet released Start Wars Film, The Mandalorian is heart-warming. It’s an example of how Disney took a very different approach to infringement to gain commercial advantage in the face of clear infringements it could have actioned. With more 3 months still to wait in the UK before we get a peek at The Mandalorian, Disney are keen not to reveal any plot lines by putting merchandise out their too early.
However Star Wars fans are inpatient. While we wait, our interest was first kept alive almost immediately by memes of Baby Yoda. Memes in themselves are not necessarily a guilty pleasure rather than an innocent one because copyright laws in the US would probably qualify these memes under the ‘fair use’ exception on the basis that the work is satirical and not depriving the owner of any income. On that basis Disney’s failure to take action is not particularly notable.
More radical is Disney’s approach to the availability of mechanise for sale on sites such as Etsy. In the face of what is clearly a huge demand for products a number of companies decided to take the risk of selling items that infringe rights. Disney’s embargo on merchandise until 2020 appeared to have backfired as it faced not only infringement but losing out on the lucrative Christmas market.
The usual and perhaps expected response would be to clamp down on infringing use and take no prisoners. Disney however have decided that to take aggressive action on infringements would alienate their customer base and potentially do more damage than good. On that basis it has adopted a two pronged commercial approach. First it is not taking action against infringers. Second it is bringing the date of release of its own merchandise forward so it can also cash in on the lucrative Christmas period. The down side for Disney is that due to the speed at which it has rushed to release products there are some comments flying regarding quality. Overall however Disney has avoided alienating the very fans and loyal consumers who may be the key to Disney’s continued good fortune going forward. Happy Christmas all you Star Wars fans.
Written by Margaret Briffa, Solicitor