Hey, Disney. #MayThe4th be with you, but nobody owns a hashtag

Disney asserted that it has the rights to do whatever it wants with your content, just because you used the #MayThe4th hashtag. That’s not how hashtags work.

Here’s what Disney tweeted:

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: https://t.co/G0AyToufQ5

— Disney+ (@DisneyPlus) April 27, 2020

Here’s the thing about hashtags: Nobody owns them. If I want to use #MayThe4th in my tweet about Star Wars linked to porn, I can do it. Hashtags are inherently out of the control of those who create them. You win if people share them — but you lose control, too.

Of course, Disney wasn’t trying to “own” the hashtag. They were just trying to make sure they could do whatever they wanted with your replies to their tweet. Presumably, that means posting it in media or on a billboard or something like that.

Disney’s self-contradictory and rapacious terms of use apply

Let’s imagine that Disney actually has the rights it is claiming. Imagine that I reply to the tweet with the #MayThe4th hashtag and post, say, a video of me and my kid having an epic light saber fight. According to Disney’s fantasy about hashtags, I’ve now agreed to the contract on disneytermsofuse.com. So what did I agree to? Let’s take a look. Excerpts below, with my comments:

Agreement. You represent to Disney that you have read, understood, and expressly agree to be bound by this Agreement, and the terms, conditions, and notices contained or referenced herein, whether you have created a Disney account (and agree to this Agreement at the time you created that account) or whether you simply browse, use, or access a Disney Product offered directly by Disney or through a third party (and agree to this Agreement when you browse, use, or access any aspect of the Disney Product). 

Nobody reads this stuff just because they’ve tweeted. You’re nuts.

Restrictions on your use of Disney’s Products. You agree that as a condition of your license, you will not: create derivative works of the Disney Product or any part thereof, except as and only to the extent that any foregoing restriction is prohibited by applicable law

Umm, you want me to post stuff about Star Wars without creating a derivative work? How is that supposed to be possible?

Submissions and Unsolicited Ideas Policy. Our long-standing company policy does not allow us to accept or consider unsolicited creative ideas, suggestions or materials. In connection with anything you submit to us – whether or not solicited by us – you agree that creative ideas, suggestions or other materials you submit are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of review, compensation or consideration of any type.

I’m confused. You want me to submit creative stuff about your content and then you want there to be no relationship . . . except that we’re going to have a binding contract and you’re going to exploit it. Did I get that right?

User Generated Content. The Disney Products may ask for or allow you to communicate, submit, upload or otherwise make available text, chats, images, audio, video, contest entries or other content (“User Generated Content”), which may be accessible and viewable by the public. Access to these features may be subject to age restrictions. Whether a Disney Product made available by us or in connection with Disney Products appears on a Disney website, service and/or platform or is integrated with a third-party website, service, application, and/or platform, you may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.

I see. So if I use your hashtag, I can’t make anything “hateful, vulgar, or obscene.” Could you please point me to the official definitions of these words so I can obey your contract? (I’ve watched some of your Star Wars movies and there are a lot of hateful, vulgar characters — so I’m a bit confused about your attitude here.)

In most instances, we do not claim ownership of your User Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights for the full duration of those rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, transform, adapt, translate, create derivative works based upon, publicly perform, publicly communicate, make available, and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Disney Products and on third-party websites, services, applications, and/or platforms), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, without attribution (to the extent this is not contrary to mandatory provisions of applicable law), and without the requirement of permission from or payment to you or any other person or entity. You agree that submission of User Generated Content does not establish any relationship of trust and confidence between you and us, and that you have no expectation of compensation whatsoever (except as may be specifically stated in the provisions of the Disney Products in connection with the submission, or arising from it).

So you can do whatever you want with my content, is that correct?

You represent and warrant that your User Generated Content conforms to this Agreement and that you own or have the necessary rights and permissions including, without limitation, all copyrights, music rights and likeness rights (with respect to any person) contained in the User Generated Content, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by this Agreement; and you agree to indemnify and hold us harmless from any claims or expenses (including attorneys’ fees) by any third party arising out of or in connection with our use and exploitation of your User Generated Content resulting from your breach of this Agreement. You also agree to waive and not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement to waive and not to enforce from others who may possess such rights.

Now I’ve waived all rights to my content just by using your hashtag . . . but if you use it and somebody sues you, it’s my problem.

And here’s my favorite part:

To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a non-exclusive license to create a derivative work using the specifically referenced copyrighted works as required for the sole purpose of creating such a work, provided that such license shall be conditioned upon your assignment to us of all rights worldwide in the work you create for the duration of copyright in the User Generated Content, in all formats and media known or unknown to date, including for use on Disney Products and on third party sites and platforms. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.

So if I put a photo of Darth Vader in something, you claim you own it forever. Got it.

Fans are out of control. Promotion scales, but legal does not.

Let’s look at all the things Disney did wrong here:

• You can’t enforce a contract just because somebody replies to a tweet and uses a hashtag. They have to actually take an affirmative action to agree to the contract.
• The contract you want us to use explicitly forbids the activities you want us to perform.
• It’s inefficient to get permission to use people’s content. Tough. You want to use it, you need to contact the people who created it. I’m sorry if that’s inefficient, but if you want to make a video of all of our content, you need to get permission.
• Fans gonna fan. You can sue ’em. You can exploit ’em. But it’s hard to do both at the same time.

Disney, you need to have your lawyers and your marketing people get together and have a clearer understanding of what you’re trying to do. Because locking down content and attempting to encourage people to share it are fundamentally incompatible.