By: Wolf Chivers

Suppose one day someone is bored and exploring some of the stranger sides of YouTube, only to be inexplicably graced with the knowledge that lightsaber stunt fighting exists. It reminds them of the time they dressed up as a Jedi as a kid for Halloween. But that lightsaber they had for their costume was three colored, telescoping tubes inside a plastic toy, and the people in that sparring video are swinging hard. Where does one get a lightsaber for their newfound hobby that will hold up to that kind of impact?

Soon they are down the Internet rabbit hole to discover that there is a whole wealth of fancy, expensive lightsabers on the market. The only mention of “Disney” on those websites sits at the very bottom of the page as a tiny disclaimer stating that the products are not associated with “Disney, LUCASFILM, or any Lightsaber franchise.” Given Disney’s history of zealously protecting its intellectual property, even against small businesses and individuals, could Disney try to stop these lightsaber sales? These third-party manufacturers are not pop-up companies who are in and out of business too quickly to sue. Many of these businesses are well-established manufacturers with Ultrasabers being nearly 20 years old and one of the highest-profile names on the market. Nevertheless, the question remains as to whether Disney has a basis for a copyright infringement claim. 

The Empire—Copyright Law

Even though Disney owns the Star Wars intellectual property, whether or not lightsabers are copyrightable is tricky. Copyright protections extend to a wide variety of media, including motion pictures. Owners of copyrights generally have exclusive rights to use, reproduce, and distribute their work or derivatives based on their work, to prevent its copying. The Star Wars films and many of their specific elements are subject to copyright, including aspects like individual characters. However, copyright law does not protect ideas or concepts, only the specific portrayals or depictions of an idea. Consequently,  the central idea of a laser sword is not copyrightable, but the particular ways Disney has portrayed lightsabers are. Therefore, lightsaber manufacturers could potentially claim that their sabers are portrayed sufficiently differently from those depicted in Star Wars. 

For some time, it seemed like some companies were making halfhearted attempts to walk such a line. When they made screen-accurate replicas, they were often titled in such a way as to tip off fans who knew the source material, without explicitly claiming it was a certain character’s lightsaber. Luke’s lightsaber was not advertised as “Luke Skywalker’s lightsaber,” it was “the Graflex,” a nod to the fact that the original Star Wars lightsaber prop was made from a Graflex camera flash tube. Ahsoka Tano’s referenced “Fulcrum,” Mara Jade’s was the “Emperor’s Hand,” and so on. These are instances of intentional references to the properties in which they appeared without making outright claims.

Now, however, some of the lightsaber manufacturers have appeared to give up the charade and have overt “character lightsabers” sections on their websites that openly purport to be accurate replicas of the lightsabers from Star Wars properties. In so doing, manufacturers are not even trying to pretend their replica lightsabers are different from those seen in Star Wars.

However, some of the manufacturers also have lightsabers that are not specific character replicas and are at least original individual designs. What about those, if the general idea of laser swords is not copyrightable?

The First Order—Derivative Works

Copyright holders generally have the right to control the creation of derivatives based on their work. Derivative works are products based on or derived from already-existing works. There is no hard standard for determining how much of a copyrighted work a derivative work must change before it no longer infringes on the copyright, but it does infringe if the two works are substantially similar. The test for substantial similarity is subjective; the aim is to assess the total concept and feel of the two works. In effect, the court is trying to determine whether the derivative work copies the essence of the original. 

Lightsabers are iconic. Even the third-party manufacturers acknowledge it. There are many recognizable aspects of lightsabers that such manufacturers seek to duplicate, from the sounds to the meaning of the blade colors to the fact that in Star Wars the lightsabers are powered by crystals in the hilt. Lightsaber designs can vary greatly, from the complex and metal to the simple and wooden, but they are all still lightsabers. Perhaps most importantly, these third parties are still marketing their products as lightsabers, and consequently derivatives, not generic laser swords. Creating a lightsaber in an original shape does not seem to alter the “total concept or feel” in such a way as to render it not, in essence, a lightsaber, and so even the designs not directly drawn from a specific character are likely still infringing.

The Rebellion—A Possible Defense

Even if a work would be infringing on a copyright, there are certain uses for a copyrighted work that are immune from infringement claims, mostly found in sections 107-112 of Title 17. Most are irrelevant to lightsaber manufacturers; for example, there are protections for reproductions for libraries and for educational purposes. Fair use, however, may provide a possible defense for third-party lightsaber manufacturers. Fairness is determined by weighing four factors: the purpose and character of the use, the nature of the copyrighted work, how much of the copyrighted work is used, and the effect of the use on the market. However, courts also look for whether the new work transforms the original in some way, especially by adding a new expression, meaning, or message. 

There is maybe some narrow possibility that lightsaber sellers could claim fair use because they are adding an element of transformation, even though most of the factors seem to weigh against them. First, they are building lightsabers to sell, and commercial purposes are less likely to be fair use. Second, Star Wars is a creative work, and copying creative works is less likely to be fair use. Third, sellers are using basically all of the work; as previously discussed, many of the lightsabers are highly accurate replicas of those belonging to specific characters. Fourth, sellers seem likely to have an effect on the market; they are selling lightsabers alongside Disney.  

The lightsaber manufacturers have, however, added at least one thing that might be transformative—their lightsabers are advertised and warrantied for full-contact dueling, while Disney’s lack a similar warranty. Still, the question of transformation looks mostly at adding a new expression, meaning, or message. Adding durability might not give the lightsabers a new meaning, even if it perhaps adds functionality. Therefore, arguing that there is enough transformation to outweigh the four factors is tricky.

Conclusion 

In conclusion, even if Disney has chosen not to take action against third-party lightsaber manufacturers, it seems likely that it would have a viable copyright infringement claim and fair use would be a tricky defense for the manufacturers to put forth. Were Disney to take action against these third parties though, it would raise a question—where should fans go for dueling lightsabers? Should copyright law give copyright holders the power to withhold a product that passionate fans want, or is there a need for further exceptions? 

 #WJLTA #disney #copyright #infringement #starwars #lightsaber