Disney has unleashed a wave of takedown notices targeting vendors who are selling merchandise featuring “Baby Yoda,” the viral breakout character from its new streaming series, The Mandalorian, on DIY sales site, Etsy. The studio becomes the latest company to struggle to protect its intellectual property on the site, despite its formidable legal resources and penchant to fiercely guard its properties.
Disney’s woes began shortly after the character debuted in December, when fans of the character, officially known in the series as “The Child,” started selling homemade Baby Yoda shirts, mugs, dolls, ornaments, and backpacks, in violation of Etsy’s IP policies. Disney specifically delayed manufacturing and selling products featuring the character until well after the premiere of the show, due to fears that the merchandise release would spoil plot details for the series. Despite Disney’s efforts to ban alleged infringers from the site, as of this month, Etsy searches for “Baby Yoda” still return over 11,000 results, raising several questions:
Why is one of the most powerful entertainment organizations in the world unable to stop such rampant infringement? And, if Disney cannot solve IP concerns created by sites like Etsy, who can?
Widespread infringement on Etsy is facilitated by the fact that, unlike sites like YouTube, which use automated features capable of mechanically identifying possible instances of infringement, Etsy requires users to identify and report each instance of potential instances themselves on a case-by-case basis. Relying on the so-called Safe Harbor provision to the Digital Millennium Copyright Act (DMCA), which relieves sites of the responsibility to aggressively and proactively police and remove infringing content, Etsy employs a reporting system which would require Disney representatives policing infringement to manually search through the over 10,000 potential instances of Baby Yoda infringement on the site at any given time. On top of this, Disney also must target infringers who aim to evade detection by avoiding key words explicitly linked to Star Wars, selling items under descriptions such as “Baby Alien” and “The Baby Child.” Even for a company like Disney with vast resources, effectively policing this much content via human-led searches and assessments could be difficult, if not impossible.
With official Disney Baby Yoda merchandise not set to hit the market until this March, Disney could stand to lose lots of potential revenue if the Etsy infringement is not stamped out. However, many scholars, such as Texas A&M law professor Glynn S. Lunney, warn that draconian policing on the part of Disney could potentially be harmful to the company. Lunney explains that “because it’s an avid fan base” creating the merchandise, Disney could upset and “alienate” future potential customers.
While Disney has turned to takedown notices to deal with unlicensed Baby Yoda merchandise, it is yet to be seen whether, moving forward under the current DMCA regime in a cultural landscape in which “meme-able” overnight stardom is possible, what future strategies the company will employ to protect its IP.
Matt Shields is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and current second year student at Harvard Law School (Class of 2021).