‘Baby Yoda’ has been causing a kerfuffle on the internet. Ever since Star Wars spin-off The Mandalorian was released on Disney+, gifs of the bat-eared green alien have been spreading across social media. But earlier this week they vanished. Had Disney ordered the gifs to be taken down? No. It was the gif hosting website Giphy which preemptively removed any sign of the character (who isn’t actually Yoda, but another creature of the same species) to avoid any clashes with the media giant.
After an uproar from Disney fans, Giphy put the gifs back online. It even issued an apology for taking them down in the first place: “There was some confusion around certain content uploaded to Giphy and we temporarily removed these gifs while we reviewed the situation,” said a Giphy spokesperson. “We apologise to both Disney and Vulture for any inconvenience, and we are happy to report that the gifs are once again live.”
Normally Disney is militant about protecting its intellectual property, but seems to have waived its rights in this instance. It was difficult for Giphy to know what to do. The situation highlights the complex world of copyright law, which is becoming increasingly messy in a world where memes spread like wildfire.
The law remains on the side of content creators. In the US and the UK copyright is an automatic right granted to the creator of a work. Disney owns the copyright for Star Wars, and therefore it can decide who can use footage of Baby Yoda and who can’t.
In April 2019 the EU issued a directive on copyright, Article 17 (previously known as Article 13) which said that platforms are responsible for removing copyrighted material from their websites. No one can agree on how platforms are supposed to do this, which makes it less clear how Giphy should have dealt with Baby Yoda.
“What we've seen here is still technically an infringement,” says Josh Schuerman, an intellectual property solicitor. “If Disney really wanted to do that, and if they didn't care about the reputational fallout that would follow, they would be entitled to prevent people from from reproducing these images,”
Giphy removed Baby Yoda content because it was scared about what Disney would do. But there are thousands of gifs on the Giphy website from various TV shows and films that are used without any worry. The BBC haven’t taken down snippets from Fleabag or Ru Paul's Drag Race, nor has Warner Brothers taken aim at any of the gifs from Friends.
There is an allowance for ‘fair use’ – for example if you were reviewing The Mandalorian, it would be acceptable for you to use a short clip or picture to exemplify what you’re writing. But fair use has its limitations, and when it comes to memes there is debate about whether this applies.
What probably was playing on the minds of Giphy bosses, was the fact that Disney is notoriously litigious. In 2008 a lawsuit was filed against a family-owned business for advertising costumes that bore a close resemblance to the characters Tigger and Eeyore. Disney even refused a father’s request to put an image of Spider-Man on his son’s gravestone. Before Star Wars was sold to Disney, Lucasfilm didn’t bother chasing unlicensed Star Wars-related ventures. But in 2016 the company sued a 'Jedi training school' called the Lightsaber Academy for use of the trademark.
Pursuing litigation can be expensive, so usually charges will only be pressed for breaches which significantly affect a company. It’s about commercial sense – if you stand to spend more money than you would make from the case, then it’s probably not worth it. As Disney+ hasn’t even been released in the UK yet and Baby Yoda is a brand new character, there is a good reason why it may want to keep the release of the images to a limit.
This time Disney chose not to sue, and reacted quickly to tell Giphy to put the gifs back on the website. Schuermann speculates that this is because of the number of people who were enraged by the removal of Baby Yoda – Disney may be trying to cultivate a cuddlier reputation. “I think that is a very interesting development whereby the potential impact on the reputation has influenced the decision makers in a way I think that benefits internet users more broadly,” says Schuermann.
The fact that this cute character provides free advertising for The Mandalorian probably helped too. Disney+ may not be available to UK residents until March 2020, but Baby Yoda soft toys are on sale for Christmas. Often companies are steering into the skid by making their own gifs from programmes and movies with their own logo in the corner. As users share them, it creates the kind of publicity money can’t buy.
Memes have an unstable future, as the law is still unclear. They could come under the bracket of fair use, as parodies or new art forms, or companies could claim that their images are being used without permission. While Disney was technically within their rights to get the gifs removed, especially under Article 17, this time they were allowed to stay in circulation.
“It speaks to the bizarre grey area that animated gifs live in,” says Ryan Broderick, a senior reporter for BuzzFeed News, which often uses gifs to illustrate stories. “We've turned them into the visual language of the internet and yet we've never reckoned with what they are in a copyright term.”
Baby Yoda may represent a turning point for how gifs are used on the internet. The leniency Disney showed may open up other shows that platforms like Giphy were previously too scared to host, or more companies may try and get a slice of the free publicity The Mandalorian has managed to get.
Right now, it’s still a legal grey area that’s difficult for media and hosting companies to navigate. “I feel like we're going to have to eventually reckon with that, but for the moment, it's like a Cold War,” Broderick says. “Someone will do something and then it'll all kick off and we'll either lose gifs forever, or they will become protected.”
This article was originally published by WIRED UK
