I had a bad feeling about this when I first saw the tweets about Disney claiming “ownership” of #maythe4th. The lawyers I follow derided Disney’s attempt to secure a contract with anyone tweeting about the semi-official Star Wars holiday, and the Twitterati made mocking counteroffers to Disney.
But beneath the well-deserved ridicule is a question: What exactly was Disney trying to accomplish? The answer to that question turns out to be important, because it shows just how far back Disney and the law of copyright that the company is built on are stuck in the pre-internet past.
The now-infamous tweet appeared Monday, when Disney’s video streaming service Disney+ called on Star Wars fans to tweet their “favorite #StarWars memory” in advance of May 4. The follow-up came immediately:
Reaction was swift. At least one user tweeted that they had unsubscribed from Disney+ out of outrage. One clever remark read, “My favorite Star Wars memory would have to be the time Disney tried to lay legal claim to every tweet on Twitter that used a particular hashtag.” In response to the criticism, the company limited which #maythe4th tweets the supposed contract applied to, and it reiterated that those tweets “may appear in something special on May the 4th!”
Scorn for this tweet was predictable. For one thing, it looked like the next evolution of the shrink-wrap licenses, end-user license agreements, terms of service, privacy policies, and other tracts that everyone so commonly sees and ignores. Legal experts pointed out that Disney’s ability to stick Twitter users to a “contract of adhesion” with the company is limited at best, especially given its lack of rights over the #maythe4th hashtag.
Moreover, Disney laying claim to #maythe4th tweets struck a chord for many in the online community worried about ownership of words. Disney has a storied history of muting criticism and use of its films—one Twitter user remembered the time when Disney “blacklisted the LA Times from film reviews,” and another invoked when Disney “threatened to sue a grieving father who wanted to put Spiderman on his 3yr old son’s headstone.” And a claim to own #maythe4th is sadly plausible when Polo Ralph Lauren sues the U.S. Polo Association for using the word polo, Kim Kardashian is maligned for appropriating the word kimono, and Queen Elizabeth II dangles the word royal over Harry and Meghan.
The problem is Disney almost certainly isn’t trying to “own” #maythe4th tweets. Absolutely, Disney has sent out its bounty hunters to take down everything from handmade baby Yoda dolls to school fundraisers. But it cannot stop all uses of the hashtag, on Twitter or elsewhere.
Instead, Disney must have intended its tweet agreement to obtain permission to use fan tweets in “something special on May the 4th.” Since anyone who writes an original tweet has an automatic copyright in its text, Disney may have worried that said “something special” would infringe its fans’ copyrights. Several experts, including the Electronic Frontier Foundation, have suggested that this is probably what is going on, and the next day, the Copyright Alliance (of which Disney is a member) coincidentally tweeted a 2017 article about whether tweets are copyrighted.
So why did Disney find a contract necessary at all? Everyone uses tweets without worrying about permission: People retweet one another, journalists embed tweets in their stories, Jimmy Kimmel has celebrities read mean tweets on broadcast television, Jimmy Fallon calls on followers to #QuarantineAMovie—no Twitter contract in sight. Even though tweets are often protected by copyright, the usual expectation is that quoting tweets in these ways qualifies as “fair use,” an exception to copyright law that allows for using copyrighted material for purposes like news reporting, education, and parody.
Many explanations for Disney’s overlawyering are possible, but one seems especially pertinent because it goes to the heart of Disney as a company and copyright as a law: the role of entertainment franchises. A 1957 drawing of Disney’s corporate strategy shows a tangled spiderweb of properties—films, magazines, roller coasters, toys. The threads of the franchise web are woven with contracts of exquisite complexity—Spider-Man rides are permitted west of the Mississippi but not east. It is no great leap from franchise contracts to Disney’s terms-of-use tweet: It’s a galaxy of finely engineered contracts for every piece of creative content. After being told about a Disney+ production including unauthorized, copyrighted tweets, some lawyer must have found the lack of contracts disturbing.
But that galaxy of contracts is of a long time ago. The frenetic pace of social media outstrips any possibility of contracts for all online content. That’s a good thing, as it enables people all over the world to be creative and to express themselves—indeed, #maythe4th was made popular not by Disney but by Facebook fan groups. But when grassroots creativity clashes with corporate copyright, bad things happen. Disney’s contract tweet resulted in just online derision, but another case, involving a tweet about a Tom Brady photo, led to a federal court creating massive uncertainty about the common practice of tweet embedding.
In the 1950s, when movie studios were few and most Americans consumed content from a television or movie screen, franchise contracts and copyright law perhaps were elegant weapons for what some might call a more civilized age. Today, when retweets and remixes abound and content creators are a diverse mix of Instagram influencers, YouTube vloggers, Twitch streamers, and more, copyright law and the contracts it demands seem to have about the accuracy of a storm trooper’s blaster. Making sure that the online environment encourages the diversity of modern creativity requires updating copyright law to fit this digital age, and a good first step would be to escape the mentality that every tweet requires a contract.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.