No, Disney Probably Didn't Infringe A Unicorn Van Artist's Copyright, But It Would Have Sued If The Roles Were Reversed

from the the-other-foot dept

If there is ever a Copyright Protectionist Hall of Fame built, it should probably be constructed on the grounds of one Disney theme park or another. As regular readers here will already know, Disney is notoriously aggressive in its enforcement of intellectual property generally, and in copyright specifically. Hell, the 1998 CTEA, which extended the terms of copyright, is more commonly referred to as "The Mickey Mouse Protection Act." Our pages are absolutely littered with stories of Disney bullying others over copyrights, often times to ridiculous lengths.

Well, the shoe is on the other foot in this latest story. You may have seen ads recently for a forthcoming Pixar movie, Onward, which features two elves that take a road trip in a colorful van to try to meet and speak with their dead father. Well, one tattoo artist from California, named Cicely Daniher, is claiming that the depiction of that van represents copyright infringement of her own quite colorful van.

Two weeks ago, Daniher filed a lawsuit against the animation studio for copyright infringement, saying Pixar misled her after the company reportedly requested to rent her Vanicorn for a company outing. Now, a van she says is identical to her own will appear in the forthcoming animated film, “Onward.”

According to court documents shared by the Hollywood Reporter, Jane Clausen, an employee of Pixar, inquired about the rental for a “one day music festival/activity day for Pixar employees and families” on Sept. 4, 2018.

“Your van would just be a show piece and not used in any way other than a visual prop,” Clausen wrote to Daniher. “Are you able to send me some additional photos of the van? We’ve only seen the side, which just blew us away!”

Daniher agreed to rent the Vanicorn for a “confidential sum of money.” But eight months later, she noticed something strange.

What was strange is that the van in Onward shares similarities to her own van. See, the reason Pixar staff wanted to use her van to begin with is that it is painted purple with an artistic representation of a unicorn on the side. The van in Onward shares many of these qualities.

Are those two vans similar? Of course they are! So is Disney/Pixar guilty of copyright infringement? Well...no, probably not. This again is a matter of the idea and expression dichotomy in copyright law. The purpose of that part of the law is to limit copyright protection to specific expression and not mere ideas and themes. For instance, a 1 to 1 copy of Daniher's design on Pixar's cartoon van would likely be infringing. The concept of a purple van with a unicorn on the side of it is, however, not protectable. In fact, it's nearly in trope territory.

Now, to be clear, there may be a contract law issue here. And, even if not, Daniher's side of the story does make Pixar's actions sound really, really shitty.

Speaking on behalf of his client, attorney Conor Corcoran told SFGATE that the film’s producer, Kori Rae, called Daniher on June 3, 2019, to apologize for the misunderstanding. Rae apparently admitted Pixar intentionally did not tell her that they intended to use her van because, at the time, the film had not yet been given a title. For that reason, they believed they could not have Daniher sign a non-disclosure agreement, so they stuck with the rental paperwork. Via the legal complaint, Daniher says the contract she signed “explicitly prohibits” the use of any type of visual representation of the Vanicorn for any purpose other than the event itself. The following December, Corcoran registered the vehicle with the Copyright Office.

“It’s unbelievable,” he told SFGATE over the phone on Wednesday afternoon. “She created that van to cathartically get out of a bad marriage, and Pixar took her van and created it into a vehicle for two boys to find their dead father. We’re gonna have our day in court.”

All well and good, but this still probably isn't copyright infringement. I imagine Disney will argue the same in court.

But what if the parties and actions in this story were reversed? Imagine if Pixar had created its cartoon van first and then Daniher had painted her van? Now imagine that she did vehicle painting and wraps for a living, and sold her similar design? Is there even a modicum of doubt that Disney would be screaming "copyright infringement" in every single courthouse it could?

Of course it would. It's what Disney does. Which will make it entertaining to watch Disney argue the opposite in court.

Filed Under: cicely daniher, contract, copyright, onward, unicorns
Companies: disney


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  • icon
    Stephen T. Stone (profile), 19 Feb 2020 @ 8:00pm

    Were the roles reversed, Disney would not have merely sued the artist. It would have destroyed her so thoroughly that the people at Disney World would have held a celebratory parade. (Mandatory for all employees, of course.)

    reply to this | link to this | view in chronology ]

  • identicon
    tanj, 19 Feb 2020 @ 8:15pm

    Remember Uniracers?

    Pixar thinks they own red unicycles.

    http://www.nintendolife.com/news/2010/03/feature_the_making_of_unirally

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 19 Feb 2020 @ 8:15pm

    Yeah, that's Disney alright

    Speaking on behalf of his client, attorney Conor Corcoran told SFGATE that the film’s producer, Kori Rae, called Daniher on June 3, 2019, to apologize for the misunderstanding. Rae apparently admitted Pixar intentionally did not tell her that they intended to use her van because, at the time, the film had not yet been given a title. For that reason, they believed they could not have Daniher sign a non-disclosure agreement, so they stuck with the rental paperwork.

    Ah, no, that's not a 'misunderstanding', that's flat out deception. A misunderstanding would have been writing up an agreement that covered the use of the van for an event and it's image for 'other projects in the future', with the owner of the van not asking for clarification and simply thinking they meant photo albums of the event or something similar.

    Deliberately not telling her that they wanted to rent the van and/or get more pictures of it in order to use it to create something for an upcoming project though? That was intentional deception by someone too dishonest and/or cheap to admit what they actually planned.

    They could have simply been honest and admitted upfront what they wanted, possibly paying a modest fee as a gesture of goodwill assuming the van's owner didn't let them use the image for free(and likely advertising it herself in a 'look who used my van in their film!' fashion), but because they were cheap or dishonest they now get to enjoy a lovely PR black-eye and court costs that will likely dwarf what they would have paid out

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Feb 2020 @ 8:39pm

    The vans aren't even depicting the same scene

    For there to be copyright, there has to be actual copying. The vans are different makes & models, the back ground depicted on the vans are different. Oh, one van depicts an Unicorn, and the other a Pegasus.

    The closest would be the blurred lines inspired theory. Did Pixar act like shitty people? Yes, they did but that is not copyright infringement.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 19 Feb 2020 @ 9:55pm

      Re: The vans aren't even depicting the same scene

      ... Yes, that is pretty much what the headline and article said.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 20 Feb 2020 @ 1:48am

      Re: The vans aren't even depicting the same scene

      "For there to be copyright, there has to be actual copying. The vans are different makes & models, the back ground depicted on the vans are different. Oh, one van depicts an Unicorn, and the other a Pegasus. "

      Is this an appropriate time to remind you why to this day it's known by any comic artist that whatever you do you can't use an anthropomorphic duck or mouse in your cartoons unless you want to be sued into oblivion?

      Legal precedent is fairly clear that all it takes is a reasonable resemblance. Disney has. in the past, successfully sued and threatened plenty of comic artists over far less resemblance. The van having the same color scheme should be enough to bring a successful lawsuit to the table, assuming you have the initial wherewithal to bring a legal team specialized in copyright law to the courtroom.

      "Did Pixar act like shitty people? Yes, they did but that is not copyright infringement."

      One of the major issues is that Copyright is all about soft boundaries. It's copyright infringement if a judge can be made to see enough of a resemblance. Something Disney has used in the past to great effect.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 20 Feb 2020 @ 2:32am

        Turnabout is fair play

        Legal precedent is fairly clear that all it takes is a reasonable resemblance. Disney has. in the past, successfully sued and threatened plenty of comic artists over far less resemblance. The van having the same color scheme should be enough to bring a successful lawsuit to the table, assuming you have the initial wherewithal to bring a legal team specialized in copyright law to the courtroom.

        The ultimate punchline of course is that it really shouldn't count as infringement, as even if Pixar was scummy and dishonest you shouldn't be able to lock down a general idea like 'van with purple siding and mythical horse creature', yet if Disney has gone legal over the idea that you can control something that vague then they'd have only themselves to blame for having that used against them here.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 21 Feb 2020 @ 6:17am

          Re: Turnabout is fair play

          Copyright - and in general, most of "intellectual" property - has only ever been a way for the current top dog to climb the ladder and kick it down so no one can follow.

          reply to this | link to this | view in chronology ]

    • identicon
      Ben, 21 Feb 2020 @ 4:20am

      Re: The vans aren't even depicting the same scene

      Krofft comes to mind. Resemblance is not necessary. Only appropriation of original expression is. The unique combination of the unprotectable is protected.

      This may be a contract case but fair use is more the concern than duplication.

      reply to this | link to this | view in chronology ]

  • icon
    Peter (profile), 19 Feb 2020 @ 8:48pm

    Thank, you, Disney, ...

    ... for making absolutely clear that, contrary to what your PR department says, you do not see copyright law as a means to ensure fair compensation of creatives or, as the founding fathers put it, "to promote the arts and sciences".

    reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 19 Feb 2020 @ 8:55pm

    Pixar intentionally did not tell her that they intended to use her van because, at the time, the film had not yet been given a title

    "We would like to use the design of your van in a new project."
    ↑ There, Disney, is how you could phrase it. (I even promise I won't sue you if you use the exact same phrase in the future!)

    reply to this | link to this | view in chronology ]

  • identicon
    That other guy, 20 Feb 2020 @ 1:26am

    Prior art examples?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Feb 2020 @ 5:04am

    The disney van has wings on the unicorn , it has no mountains in the background,no lightning and no diamond symbol.
    the disney horse is flying.
    doe,s this artist think she has the copyright on all vans with a horse on them.could i draw a picture of a horse on a van and sue anyone who shows a similar image in a film. no.
    copyright protects the particular expression of an idea or a story.
    if disney had the identical image on a van then she could sue maybe.
    the disney van is pink , her van is blue.
    Theres many similar films about cowboy,s ,a gang robs a bank,the sheriff
    gets a posse to hunt them down,
    there,s a gun fight duel in the main street, who draws first.
    no one sues about them because copyright protects the expression of the film,
    no one has copyright on genre,s or basic plot devices in films or tv.
    anyone can paint a horse or on a van
    as long as they do not make an identical copy of another artist,s image.
    i Dont think disney would sue if the roles were reveresd because the images are different
    one is a horse,the other is a pegasus ,the colors and backround are different.

    reply to this | link to this | view in chronology ]

  • icon
    McGyver (profile), 20 Feb 2020 @ 7:28am

    You can’t sue Disney

    Isn’t it illegal to sue Disney?
    Besides, while that’s a cute Pegasus, its not a unicorn, so you gotta pick your fights with the omnipotent corporate masters of our legal system better... at least add in a horn and make it a Pegacorn or something and say it was there all along.
    Not to mention thats just about what every other late 70s van was painted up as anyway... that and Conan (the barbarian, not O’Brien), so the argument would easily be “its a common 70s theme”...
    And of course Disney would have sued the crap out of her if the roles were reversed, they sued a school for $300 for showing a film at fundraiser, that’s what they do... it’s friggin’ Disney.

    reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 20 Feb 2020 @ 8:00am

    Just to be clear, the mythical creature on the side of the Pixar vehicle is a Pegasus, not a unicorn.

    It's a minor point, to be sure. But the Pixar van is not, in fact, a purple van with a unicorn.

    reply to this | link to this | view in chronology ]

  • icon
    Larry Zerner (profile), 20 Feb 2020 @ 10:14am

    The Plaintiff copied the Unicorn from someone else

    Not only do the two paintings not look substantially similar, but you missed the update, where Cartoonbrew discovered that the Plaintiff's unicorn was directly copied from another artist (Sharlene Lindskog-Osorio). Also, photos from Plaintiff's Instagram show that she wasn't even the person who painted the unicorn on her van. This case, whether filed against or by Disney, is going nowhere. https://www.cartoonbrew.com/law/disney-sued-by-artist-over-unicorn-van-in-pixars-onward-185335.html

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 20 Feb 2020 @ 10:31am

    Not even the same animal

    They're not even the same animal. One is a Unicorn and one is a winged horse.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 20 Feb 2020 @ 11:54am

    Love my Roku.

    Its always entertaining to see others do this better.
    Tons of free channels, with some having to many Adverts, and Some with hardly any, and no patterns between them..

    With REAL 1 minute breaks for adverts.
    then channels with only 1 advert in 10 min, Love it.
    And all these shows? are free??
    Well the adverts pay for the shows. AS IT SHOULD BE.
    Or..
    as you may note, that the number of movies released per years is ALLOT..over 100(closer to 400) per year. and how many Hit the TV or theater?
    And this is funny, as there are Shows I have hardly seen after the first time on TV. (I stopped cable LONG time ago)(I also cant watch 200 channels at the same time) but All the movies from the theaters tend to hit once and disappear or are So bad they repeat it over and over and over..
    On Roku there are Cult classics that are hardly ever found, and you might look them up and get your OWN COPY from some of these companies.(trollaville??)
    Good, bad, ugly, weird, Old and OLDER..AND A TON of remakes that Died.(flowers for Algernon remake)

    DETUR into reality.
    So the major broadcasters have channels that they Are required/asked to broadcast around the nation, and How to do this, is rebroadcast for remote stations, Which they Charge a small fee from, and they do abit of their own Local adverts to make money to keep it up. So 1million local re-broadcasters, all sending Pennies(I think its allot more) to the Major corps, per day?/Week/month/years..

    Dear Disney..
    Ever wonder why people Pirate??
    I would wonder how you would do in court(NOW) when there is previous story lines that are Equal or close enough, that you are NOT original.
    You are one of the reasons, we have Stories that the only thing hurt, tends to be my pocket book. Those old stories were used for reasons, to scare kids into do the right things. And you took them out of context. I Liked Coachman rat(good book) much better. Where are your stories can be placed in a 2 year olds book and last 10 minutes.
    Would alos like to comment on the WWII propaganda you created...How do you remove Propaganda from the Public consonance??..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Feb 2020 @ 1:12pm

    A simple image search on google for unicorn painted van pops up several other similar designs on different vans. Who should be suing who in all these instances?

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 24 Feb 2020 @ 3:14am

      Re:

      "A simple image search on google for unicorn painted van pops up several other similar designs on different vans. Who should be suing who in all these instances?"

      Whoever has the most powerful legal team will win.

      So whether someone gets sued over it depends only on whether the entity with the big legal team feels they need to either make an example or think the presumptive defendant has enough money to render the lawsuit lucrative.

      The US tort system is the worst practical travesty of law to be found anywhere this side of "The Dictator" and the thousands of legal paragraphs handling it might as well be reduced to; "When defendant and plaintiff enter count the lawyers on each side. The winner takes all the loser has, and may take the loser out back and shoot him".

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Feb 2020 @ 8:24pm

    "...Daniher's side of the story does make Pixar's actions sound really, really shitty. " Disney takes perverse pride in being a really shitty company. I know; without going into the details, I was personally targeted by Disney honchos after the great ABC invasion, in part for my longtime Union affiliation (turned out the Union, NABET, is just as shitty as Disney--if not more so, given their presumed position of "protecting" the employee). Makes me grateful for making it to retirement; now I wouldn't answer the phone to either one of these fucks for less than $2500 cash up front. But it's safe to say the Disney-verse is by far the worst Capitalism has to offer, with the possible exception of Trump.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2020 @ 12:35am

    Lesbian producer versus trans artist. Tumblr's going to have a fucking field day...

    reply to this | link to this | view in chronology ]


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