Can I use “The Force” without breaking the law?

Entertainment, Funny, Money, News

Star Wars is big business at the box office, the bookstore, the toy store, the grocery store, the music store…basically all the stores. And as with any big business, probably even in galaxies “far, far away,” owners are vigilant about protecting their intellectual property: trademarks, copyrights, and patents.

A quick search of the Avvo forums shows that a lot of people have questions about how they can use The Force in their own lives. “Would it be safe and legal to use a quote from Yoda (from the Star Wars trilogies) on a business card?” asks one person. Another wants to use Star Wars terms in a YouTube video. A library wants to use The Force to attract readers, and a nonprofit would like to put Yoda on the t-shirt giveaway for a 5k race. Creativity and the entrepreneurial spirit are strong in the forums, like the owner of a pool cleaning service who asks, “Can I use the name Blue Jedi Pool Services?”

The ABCs of IP

Before we get into specifics about building a full-size AT-AT (yes, that’s a real case; more on it later), let’s talk about the basics of intellectual property.

The Founding Fathers saw fit to provide intellectual property rights in the Constitution because they wanted to “promote the Progress of Science and useful Arts.” According to the American Intellectual Property Law Association, intellectual property law covers patents, trademarks, and copyright.  Patents cover scientific inventions. Trademarks are brand names and service marks. Copyrights cover “intangible original works of authorship which are fixed in a tangible medium of expression”; in other words, written or artistic expressions such as books, movies, cartoons, artwork, designs, and video games.

George Lucas and the scientists, engineers, and creators at Industrial Light and Magic have certainly done their part for both science and the arts with Star Wars. The effects they developed for the movies have revolutionized filmmaking. The films and the characters are recognized worldwide. There are patents for cameras and technology. Trademarks are protected in names like Star Wars and Clone Wars. Copyright covers the movies and all the other “intangible creations” fixed in “tangible mediums.”

Even before George Lucas sold Lucasfilm and the Star Wars franchise to Disney in 2012, Lucasfilm was well known for vigorously protecting its properties. In 2011, a man named Mike Koehler was soliciting donations to build one of the Empire’s AT-AT combat walkers from The Empire Strike Back. He was persuaded to cease and desist in this effort by Lucasfilm, one of many people who were convinced to halt their Star Wars projects both in and out of court. Disney, the new parent company of Lucasfilm, is just as vigilant, if not more so, in protecting its IP, so Star Wars fans everywhere, well-meaning or not, are definitely on notice.

What about fair use?

So when can you use or refer to the Star Wars intellectual property? Many people have heard of the “fair use” doctrine, which allows someone to use intellectual property in certain ways without running afoul of Disney’s Stormtroopers. Fair use allows works to be used for purposes such as criticism, comment, parody, news reporting, teaching, scholarship, or research.

As Jonathan Charles Balfus, an attorney in Los Angeles said in his answer to the question about the YouTube video, “Parody can be a fair use defense to infringement.” But as he further notes, “it’s fact-specific,” meaning you better be very sure that you’re creating a satire of the original and not a new derivative work.

Fair use concepts should let a library feel pretty comfortable using a Star Wars phrase, at least “probably” according to the answering attorneys. “Probably, since even if the phrase is trademarked it most likely will not be for library services and your use doesn’t appear to be copyright subject matter,” explains Philip Thomas Virga, an IP attorney in Redondo Beach, California.

But those same concepts make it a bad idea for a nonprofit to put Yoda on a t-shirt. “While there are certain ‘fair use’ circumstances in which you might be able to use the character, it’s unlikely that these would apply. Disney has famously sued a number of day care centers, children’s entertainers, and others over what most folks would consider ‘innocent’ uses of their characters,” advises Benjamin C. Varadi from New Orleans, Louisiana.

So, can you build a Death Star in your basement? If it’s just for you and your poker buddies, you probably won’t hear from Disney. But if you build a giant one, put Christmas lights on it, and charge admission? Expect a “forceful” response.

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