Even Disney’s Lawyers Can’t Stop an Army of Bootleg Baby Yodas
When Disney intentionally delayed making Baby Yoda merchandise in order to keep the character’s existence a secret, artists and opportunists filled the gap with crochet plushies, T-shirts, Christmas ornaments, and self-referential coffee mugs. When Disney finally came out with official Baby Yoda swag, it was widely criticized for looking rushed, because, well, it was. But if you’re unhappy with what the Mouse has to offer, there are plenty of online stores with every kind of Baby Yoda merchandise you could want, just in time for the holidays.
Some brands have embraced this sort of fan art. TeePublic, which sells shirts featuring user-submitted designs, has a fan art partner program that allows independent artists to sell fan art without violating copyright on select partnership brands. Other companies, like video game maker EA, offer fan kits that help artists create sanctioned artwork without stepping on their business interests. As Glynn S. Lunney Jr., a law professor at Texas A&M University, explains, sometimes it’s in a company’s best interest not to enforce copyright law to the letter. “Because it’s an avid fan base that’s doing it and they don’t want to alienate their fans, they choose not to enforce the full scope of both copyright and trademark rights,” he tells OneZero. “Particularly if it’s small scale in terms of commercial dollars.”
Disney, on the other hand, is notorious for fiercely protecting its intellectual property. It successfully lobbied Congress to extend copyright terms and keep Mickey Mouse — who was created more than 90 years ago — out of the public domain. Twice. And cooperation with fan artists doesn’t appear to be the reason for an abundance of unofficial Baby Yoda merch. The more likely explanation is that Disney just can’t keep up — and Etsy isn’t incentivized to do much to help the corporation enforce its copyright or trademarks.
“It could have been an excellent opportunity for Disney to embrace fan artists as consumers waited for official merchandise,” said one independent artist who spoke to OneZero and asked to remain anonymous to avoid risking takedowns of their work. Instead, shortly after creating some unofficial Baby Yoda merchandise — and less than a month after the internet had even been made aware of Baby Yoda’s existence — the artist received a DMCA takedown notice for their Baby Yoda merchandise.
Disney’s legal team delivered the notice to Etsy, which, following its policy, took down the listings and notified its creator. For the artist, this was the abrupt end of making art based on the character.
While artists may be able to remix or reimagine pop culture works like a movie or song under Fair Use without violating its copyright — which is what allows, say, YouTubers to use extensive footage from copyrighted movies for film analysis — U.S. copyright law provides fewer options for artists or crafters with takes on a character. Characters can be protected as separate works independent of the media they appear in, preventing artists from selling their own works if they use copyrighted characters. Some Fair Use exceptions for things like parody can allow, for example, South Park to include a violent and foul-mouthed Mickey Mouse in its show. But simply drawing a character in a different style isn’t enough to protect the work from copyright violations. Especially if the artist plans to sell the work.
This still leaves a bit more wiggle room than it might sound like at first glance. For example, an Etsy seller offering to draw a customer in the style of the Simpsons would very clearly be using the yellow character design of the famed TV show, but they wouldn’t be infringing on a specific character. “As a matter of basic copyright principles, you only have a copyright in your expression,” Lunney explains. “Only the expression is protected by copyright. Not the idea.” In this case, a court might determine that Homer Simpson is the copyrighted expression, but the idea of yellow cartoon characters is an underlying idea that doesn’t qualify for copyright protection.
The more likely explanation is that Disney just can’t keep up — and Etsy isn’t incentivized to do much to help the corporation enforce its copyright or trademark.
What is clear is that, for now, artists who use characters that Disney owns are in violation of the law, even if their products are homemade and derivative and add their own unique style to the character design.
So, why do so many stores like Etsy still sell them?
There’s a bit of a confirmation bias built into the question. Search “Baby Yoda” on Etsy and you’ll still find infringing merchandise today. What you won’t find are the ones that have already been taken down. There are too many people making counterfeit merchandise for the platforms to find them all, so a few will inevitably slip through the cracks.
And while Etsy policy does not allow unauthorized copyrighted material in its stores, the company also relies on safe harbor provisions to effectively wash its hands of infringing users. (Etsy did not respond to a request for comment on this story.) Until a copyright holder notifies Etsy about a violation, the policy says, the company will assume individual shop owners have the proper permission to use any characters on their merchandise.
This puts Disney lawyers in a time-consuming uphill battle. In order to take down an infringing shop, it must examine the merchandise in stores individually and notify Etsy about each one. Unlike YouTube, which utilizes an automated match tool to identify infringing content, the process of identifying infringing stores can rack up expensive employee hours.
Whether it’s worth the time can depend on the company. “Sometimes these IP owners act in ways that you think seems a little bit irrational,” Lunney explains. “But others are a little more forgiving.” For Disney, it might not be financially worthwhile to go after small-time artists, but the company might do so anyway purely on principle.
Smaller artists have learned to fly under the radar by waiting for hype around a certain property to die down or, paradoxically, avoiding too many eyes on their work. “As much as more exposure would definitely help boost my art,” the artist we spoke to said, “I fear it will make me more noticed by major companies who seek its removal.”
It may be a game of whack-a-mole for Disney to find every infringing artist, but no one wants to be the next mole. Still, artists tend to find a way. “I love creating and sharing my love of pop culture, so I will continue to make fan art,” the artist told OneZero. “I try to see it as a push to make something new rather than a disappointment in what could have been had a design survived.”