December 9, 2015 – What would happen if you walked into a local store, legally purchased a Star Wars action figure, took a photograph of the figure and posted it on social media? Probably nothing.
Now let’s alter the fact-pattern somewhat slightly: What if the store had received a box of the figures labeled Star Wars: The Force Awakens from Hasbro, and there were clear embargo instructions to not display or sell the figures until after the movie’s release date? And what if store employees, either inadvertently or intentionally, sold the figures before the contracted embargo date – and an unwitting customer bought, photographed and publicized a picture of the figure online?
Answer: The innocent purchaser might find himself in the vortex of legal action against him – or the target of a preliminary legal notice from the copyright holder (Disney/Lucasfilm, Ltd.)
SPOILER ALERT: The following article contains text (but no pictures or graphics) of a possible mild-to-medium spoiler concerning The Force Awakens. Therefore, stop reading now if you do not want to be exposed to any potential spoiler language or links.
According to an article on starwarsunity.net (we are not providing a hyperlink; you can type and search that site if you want to dig further), a customer entered a local Walmart and purchased a newly displayed 3-and-3/4″ action figure of Rey in her Resistance Base outfit. Nothing spoiler-y about that, since Rey and her outfit have already been seen in numerous teasers, trailers and TV spots.
The problem is that the Rey figure comes with a major accessory, which is a mild-to-medium spoiler and gives a big clue as to her place in the universe. The cardback photograph of Rey with the accessory makes it crystal clear what she is.
The photograph is still posted on one of the Facebook pages, which is hyperlinked on the starwarsunity.net page.
To continue our story: Several webhosts received a DMCA take-down notice reportedly from either Hasbro and/or Disney/Lucasfilm, Ltd., concerning the posted photo of the Rey figure and cardback. The hosts and sites reportedly included Star Wars Action News, starwarsunity.net and certain Facebook and Twitter pages. For good measure, multiple notices were also sent to the @starwarsunity Twitter account, the Facebook account, the Google+ Page, and the purchaser’s personal Twitter account. (DMCA stands for Digital Millennium Copyright Act, which you can read about HERE.)
Some critics of the story have asked to see the DMCA take-down notice. Rather than post a scan or screenshot of the actual notice(s), starwarsunity.net appears to have cut-and-pasted the language. The take-down notice appears to be authored by a “David Gamble”, and if you google his name and “Irdeto” found on the notice, you will find there is a “David Gamble” with NBC Universal Anti-Piracy.
But this information only deepens the mystery: Why NBC Universal and not Disney, which owns Lucasfilm and various ABC companies (ABC Television Network, ABC News, Disney/ABC Television Group Digital Media, etc.)? After all, ABC and NBC are competitors. Why does the notice list “Irdeto” as the contact company instead of Disney and/or Lucasfilm? Why didn’t starwarsunity.net post the actual notice(s) instead of supposedly re-typing the legal language? We don’t know.
In any event, the alleged infringing Twitter account link now says “Sorry, that page doesn’t exist”. But the alleged infringing Facebook photo is still viewable.
Our best legal analysis is that under the Uniform Commercial Code and the DMCA, the buyer was and is a bona fide innocent purchaser of a Star Wars product made available to the public, even if in just that one Walmart store. The purchaser, therefore, may have no legal duty to respond to the Notice(s). The copyright holder’s remedies and legal action, if any, ought to be directed toward the breaching vendor (allegedly Walmart), and not toward the innocent purchaser.
Where big money, contracts and perhaps even somebody’s job is on the line, we can see how this tempest in a teapot is about to reach the boiling point. But the temperature is already coming down as webhosts and domain providers (Facebook in one instance, Twitter in another) have already responded to the take-down notices and have removed some (but not all) of the offending images.
For better or worse, the mere threat of legal action and attendant attorney’s fees and costs can have the desired effect – no matter how innocent the purchaser was.