Everybody loves Baby Yoda. But, unfortunately, not everybody loves intellectual property (IP) rights. In the weeks since Star Wars fans were first treated to The Mandalorian, memes of America’s favorite little green man have proliferated and black-market merchandise has popped up on websites such as Etsy (ETSY).
At first, Disney seemed to push back against these imitations, (probably) pushing Giphy to remove memes and causing content creators to lament the IP protections that give Disney the upper-hand in these sorts of confrontations. But, in fact, the Baby Yoda saga shows the power and appeal of America’s “fair use” laws and should give Star Wars fans some powerful reasons to support IP laws. Our country’s pro-creator laws lead to lovable characters all over the galaxy and pave the way for merchandise showcasing a galaxy far, far away.
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After a (brilliant) twist at the end of “Chapter 1” of Disney’s The Mandalorian, the Star Wars universe welcomed a new member of Yoda’s mysterious species. The memes came almost immediately afterwards, and GIF website Giphy was among the first to host “Baby Yoda” content. Out of an abundance of legal caution, Giphy pulled its content shortly thereafter, and just like that, the little green GIF market started to dry up. Normally, a meme with copyrighted images made by a college student and plastered on Facebook would qualify as “fair use,” since the student probably isn’t depriving the owner of income and the content is likely satirical.
But with the rise of mini-video sharing sites such as Giphy, the stakes are suddenly higher and it’s unclear whether (money making) GIF sharers are robbing Disney of income. And with any chance of Disney’s well-versed lawyers being able to sue, upstart companies, such as Giphy, will make sure there’s no grounds for dispute.
But the story doesn’t end there.
During the last week of November, Giphy reversed course and freed Baby Yoda from digital jail. Quoth the company: “There was some confusion around certain content uploaded to Giphy, and we temporarily removed these gifs while we reviewed the situation.” Something similar happened in the toy products market, in which Disney at first insisted that any Baby Yoda swag would have to wait until 2020. In response to this embargo of pointy-eared plush toys, a black market for Yoda-shaped toys popped up on creative good sites such as Etsy. Baby Yoda has already taken on a variety of forms, ranging from Christmas tree ornaments to socks.
If Disney wanted to, it would be well within its rights to sue these producers for IP infringement. But market considerations dominated, and company executives knew that aggressive action against Etsyers wouldn’t be a good look. Instead, Disney is taking these developments as a sign of a large untapped market for Baby Yoda toys and is set to expedite the release of merchandise for this Christmas.
The company was right to be cautious at first, since Star Wars merchandise released too soon in the past has led to leaked story lines. Fans trading Star Wars Topps cards ahead of the 1980 Empire Strikes Back release found out that Han Solo was bound to be encased in carbonite. Nearly 20 years later, action figures released ahead of The Phantom Menace revealed that Queen Amidala would be disguising herself as a mere handmaiden.
Intellectual property protections allow for producers, such as Disney, to safeguard their secrets and profit off of the carefully-crafted storylines enjoyed by millions of fans around the world. Meanwhile, fans can still have their fun by posting movie-related memes that (likely) enjoy legal protection from copyright law.
And even when companies may be within their rights to sue for IP infringements, they must still weigh market considerations and make sensible decisions that please their consumer base. That’s critical, because ideas like lightsabers and Baby Yoda’s aren’t created in a vacuum (of space). IP protection allows us to travel to a galaxy far, far away, without being trampled by a bantha herd of lawsuits.
Ross Marchand is the director of policy for the Taxpayers Protection Alliance.
