Does Disney Own the Concept of a Castle?

It is a well known axiom of U.S. intellectual property law that there is no protection afforded to mere ideas.  In order to employ the force and power of our legal system to enforce your intellectual property rights, you must have something more concrete than an idea.  In patent law, for example, you must have reduced your invention to practice (although constructive reduction to practice can be used to satisfy the requirement).  In trademark law, you must have actually used your mark in association with goods or services.  In the realm of copyrights, an author must fix her expression in a tangible form before the government will recognize any exclusive rights.

The bottom line is that you can’t sue anyone for “stealing your idea” or “taking that movie plot you thought of.”  This concept is hard for some to grasp, and every so often, a big player in the IP world may take advantage of this common misunderstanding.  While perusing sites that sell graphic tees (one of my favorite forms of communication – e.g., here, here, or here), I came across an example of this that I think is worth sharing.

It seems that Ian Bogost, a video game professional, associate professor, blogger, and amateur t-shirt designer, decided that it would be clever to put a Spanish phrase, “Por favor manténgase alejado de las puertas,” on a t-shirt, adjacent to various theme park graphics.  If you’ve spent any time in a Disney theme park, you may recognize the foreign equivalent for “Please stand clear of doors,” which can be heard over and over on the monorail, as the automated recording paternally berates passengers.

When Mr. Bogost put his t-shirts up for sale on Zazzle, one of his designs was quickly yanked from the virtual shelves.  He was told that it was due to copyright infringement.  The response to his requests for additional information came as follows:

The Disney castle concept is the protected intellectual property of Disney Inc. and may not be used on Zazzle products without permission, regardless of who the original artist or photographer may be.  We are sorry for any inconveniences this may have caused. (Source.)

The above statement is legally incorrect.  Disney may have several registered copyrights in various depictions of a castle.  They more than likely have multiple trademark registrations that include a castle design.  They may even own the copyright in the architectural plans that were used to construct the castles that appear in their theme parks.  But no one owns the concept of a castle.  It is free for all the world to use.

Now, as an attorney, I have a duty to qualify that last statement.  While the concept of a castle may be free for all the world to use, you will want to consider your risk tolerance when you do so.  If you draw your own castle, and it looks too much like the Disney castle, they can certainly accuse you of copyright infringement – and when I say “accuse,” I mean “sue.”  They may not win, but they can certainly make life rough for you until they lose.  Disney can also “accuse” you of trademark infringement, or more likely, trademark dilution.

My guess here is that Zazzle got some communication from Disney, which threatened all of these causes of action, if Zazzle didn’t remove Mr. Bogost’s t-shirt design.  More than likely, Disney used some language that wasn’t quite so questionable, and Zazzle either misunderstood or misquoted them in responding to Mr. Bogost.  Could be that Zazzle has had a previous run in with Disney, over a completely different t-shirt design, and Zazzle has taken a proactive approach to avoiding similar disputes in the future.  Either way, that company’s not going to stick its neck out on Mr. Bogost’s account – it just doesn’t make business sense to do such a thing.  And Disney knows this.  As a result, they succeed in asserting that they own the “concept” of a castle – a dubious claim at best, from an academic perspective.

The article was originally posted on The Tactical IP Blog