Disney isn’t trying to steal your Star Wars tweets

• April 28, 2020

Yesterday, the Disney Plus Twitter account encouraged fans to share their favorite Star Wars memory, promising it might show up “somewhere special” on May 4th. But a follow-up tweet suggested the hashtag came with some hefty legal baggage: “By sharing your message with us using #MayThe4th, you agree to our use of the message and your account name in all media and our terms of use here.”

It included a link to Disney’s terms of use, which total approximately 6,500 words.

Disney is notoriously heavy-handed about copyright, but even by those standards, the statement came off as both ambiguous and ridiculous. To many Twitter users, it sounded like Disney had claimed anybody posting #MayThe4th tweets was “sharing” them, and that by tweeting into the void, it could use your content for free. “If you just take that second tweet by itself, it looks like anyone who’s using the May the 4th hashtag is agreeing to these terms of use,” says intellectual property lawyer Tara Aaron, one of several legal experts who tweeted about the case.

Companies, to put things bluntly, can’t do that. “You can not read a contract, but you have to know it exists for it to apply to you. So it wouldn’t work that way,” says Aaron. If Disney owned Twitter — something that almost happened! — then it could give users a boilerplate licensing agreement on signup. But as it stands, Disney still needs to establish that you’ve consented to a deal.

The Disney Plus account tweeted again a few hours later, significantly narrowing down its claims. “The above legal language applies ONLY to replies to this tweet using #MayThe4th and mentioning @DisneyPlus,” it said. In other words, Disney is trying to post a contract in a tweet and including a link to the full terms of service, then saying that if you take the specific action of replying, you’re bound to follow their terms.

That’s a more defensible approach, whether it was Disney’s original intent or a later policy change. “I think they absolutely can do that,” says Aaron. “You might not read them, but you had to have read that entire tweet in order to know what to do,” she says. “I think a court might see a use of that hashtag and the mentioning of Disney Plus as evidence of your assent to that contract, which you had in front of you and had the opportunity to read.” Posting the messages across three tweets with a significant time gap undercuts that, though, because someone could easily reply to the first post without seeing the legal notice.

It’s not ridiculous to be concerned about sweeping legal claims. Disney is a voracious rights-hoarder. In the name of protecting characters like Mickey Mouse, it lobbied for laws that nearly froze the American public domain for decades. It’s made legal grabs like trying to trademark the name of Mexican holiday Día de los Muertos, later withdrawing the application under protest. Bizarrely enough, one Twitter user says that Disney filed a copyright claim against them for posting a screenshot of its tweets. (We’ve reached out to Disney for confirmation.)

Social media has also produced novel and complicated copyright questions. A judge recently ruled that Instagram automatically granted any website a license to embed users’ photos, while a similar legal argument involving Twitter failed.

And Aaron emphasizes that having the legal high ground won’t necessarily stop companies from ripping off users. If someone infringes on your copyright without asking, your recourse is sending a cease-and-desist letter and potentially suing them — and few people have the resources to take on a giant like Disney. “It’s absolutely forgiveness versus permission,” she says.

Disney’s posts, though, indicate that it’s not trawling Twitter for hot Star Wars tweets. It was apparently trying to clear up the legal issues around using fans’ messages — but it only succeeded in freaking them out.

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Yesterday, the Disney Plus Twitter account encouraged fans to share their favorite Star Wars memory, promising it might show up “somewhere special” on May 4th. But a follow-up tweet suggested the hashtag came with some hefty legal baggage: “By sharing your message with us using #MayThe4th, you agree to our…