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Disney's Double Standard

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Homebuilder Brian Bangerter has constructed an exact replica of the house in Disney's animated hit "Up," in Herriman, Utah.

As the New York Times reported yesterday:

The sherbet-colored structure sits at the intersection of Meadowside Drive and Herriman Rose Boulevard here, but you don’t need directions to find it. Just look for the swarm of helium-filled balloons that the developer tied to the chimney of a house that has a gabled roof, scalloped siding and a garden hose neatly coiled next to the porch — all details taken from “Up,” the 2009 hit about an old man and his flying abode.







But, the real question is -- as New York magazine asks -- "How did the people who made that meticulously re-created Up house avoid a lawsuit from the famously litigious Disney?"

Easy.

Brian Bangerter is the son of Blair Bangerter, former governor of Utah -- which never hurts.

Then, a friend of Bangerter the Younger turned out to know lobbyist Scott Sabey, who happened to have an "acquaintance" in Disney's legal department.

Oh, and the film's director, Pete Docter, "personally intervened on behalf of the project, a studio executive with knowledge of the transaction said, on condition of anonymity so as not to contradict his employer’s stance," according to the Times.

And, whaddya know! Disney agreed to let Bangerter build a replica.

However, Disney hasn't always been so quick to let the less-connected use its trademarks.

In 2006, Disney threatened to sue a grieving British couple after learning they were planning to adorn the headstone of their stillborn child with an image of Winnie the Pooh. (Disney later withdrew the suit after a tsunami of negative publicity.)

In 2008, Disney sued a Miami couple, Ramon and Elizabeth Morales, for wearing Buzz Lightyear and Little Mermaid costumes when performing at children's parties.

Disney even went after a fellow named Ian Bogost, who had the audacity to make a T-shirt featuring a castle that looked similar to the one at Disney's Magic Kingdom (even though Disney's castle is a precise copy of the Neuschwanstein Castle in Bavaria).

Naturally, Disney doesn't believe the same rules apply when the shoe is on the other foot.

In May, FishbowlNY discovered "three trademark applications that Disney made in early May to claim the rights to the phrase 'SEAL Team 6' covering 'entertainment and education services,' 'toys, games and playthings' and "clothing, footwear and headwear.'"

Oh, and snow globes.

The applications were filed two days after Osama bin Laden was killed, and the question now is, is it really possible that the Walt Disney Co. will now own the rights to the name of a unit "owned," in fact, by the American people?

And will the Navy SEALS have to pay Disney a licensing fee every time they use their "brand"?

"Government entities can file for trademarks just like anybody else. But from the trademark search I did, there wasn’t anything filed by the Navy. The amazing thing to me is, whose idea was this? The Navy SEALS are heroes, but they’re not Disney heroes," Aaron Thalwitzer, a trademark attorney with Zies Widerman & Malek, told me in a telephone interview.

Thalwitzer explained that, while Disney has filed an application, they do not yet have the trademark for "SEAL Team 6."

"At this point, the senior user of the SEAL Team 6 trademark is the US Navy. Disney has announced their 'intent to use.' I'm not sure I really see this working for them," he said.

Disney has shown that it not only has the resources to out-litigate just about any other entity on the planet, they also have the connections to get its way far more often than not.

In 2002, Stanford law professor Lawrence Lessig told Foreign Affairs magazine that "it seems that every time Mickey Mouse is about to fall into the public domain Congress gives him (and other copyrights) a new lease on life. Congress increased the renewal period to 47 years in 1976, around the time Mickey's number came up. Then, Disney wooed Congress to get the Sonny Bono Copyright Term Extension Act of 1998; copyrights now last for the inventor's lifetime plus 70 years. This breaks the social bargain. Walt Disney created Mickey knowing that his company would profit from his creation for the 56 years that prevailed under the 1909 act. The public kept its end of the bargain. And since only ex ante incentives for investment matter, society gets nothing from giving more money for ideas already created."

Of the Bono Act and Disney's influence, Reason magazine's Jesse Walker wrote:

The very day Senate Majority Leader Trent Lott became a co-sponsor of the bill, the Center for Responsive Politics reports, the Disney Political Action Committee donated $1,000 to his campaign chest; within a month, it had also sent $20,000 in soft money to the National Republican Senatorial Committee. And Disney had help: Other entertainment giants, from Time-Warner to the Motion Picture Association of America, joined the lobbying effort, as did some well-known songwriters, such as Bob Dylan, and heirs of dead songwriters, such as George and Ira Gershwin.

The irony was rich: Disney, which draws heavily on public-domain characters and stories in its own products (Aladdin, the Little Mermaid, Mulan), was fighting to keep the cultural commons closed. And Dylan regularly bases his work on the chord structures, and sometimes lyrics, of older folk songs--"The Girl from the North Country" on "Scarborough Fair," "I Dreamed I Saw St. Augustine" on "I Dreamed I Saw Joe Hill Last Night." Yet there he was, demanding royalties from his music until 70 years after his death.

Meanwhile, the Gershwin heirs, who didn't even write the songs that keep them wealthy today, found themselves essentially arguing that the 20-year extension would somehow be a further incentive to their dead ancestors' creativity, a claim that smacks of either spiritualism or desperation.

It didn't sit well with David Post, a professor of law at Temple University, either. He told Walker:

It's a joke. It's a disgrace. There is no better example that I can imagine, literally, of Congress caving in to small, highly focused special interests. ... This was the sale of legislation in the crudest form. They should be ashamed.

While Disney was pursuing the exclusive use of SEAL Team 6, soldiers themselves have never been permitted to use military insignia for (barely) commercial purposes unless specifically authorized.

Air Force regulations state:

Department of Defense employees, their immediate families, and veterans have an implied license to use the Air Force symbol on personal items such as welcome home T-shirts, cakes, personalized candies, crafts and custom-made gifts.

However:

These items must not be created for sale, advertising or potential endorsements. Department of Defense employees, their families and veterans are required to get a license if they have a company, small business or hobby that intends to sell products bearing any Air Force trademark.

Disney was once beaten back by, of all people, a British porn producer who trademarked "A Place Where Dreams Come True."

Apparently, Disney finally backed down from the legal challenge and agreed to use "The place where dreams come true."

"It's a David v Goliath victory," the producer, Michael Wightman, said at the time.

Though, as Aaron Thalwitzer tells me, the party with the deepest pockets tends to come out on top in trademark cases.

He says, half-jokingly, "These days, Disney probably has more resources to litigate than the US government."

In the end, Disney walked away from the case as the public shaming proved too much to bear, freeing up the Navy's resources to beat back another trademark application working its way through the system:

Yep, while all this was going on, CBS was in the process of trying to trademark "NCIS."
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