disney-2
26 August 2015Copyright

Banksy’s ‘Dismaland’ may avoid Disney IP claims, say lawyers

Banksy’s “Dismaland” exhibition may avoid infringing Disney’s intellectual property rights thanks to UK copyright provisions that legalise some parodies, but a trademark application may yet prove troublesome, lawyers have claimed.

Earlier this month the artist, known for his graffiti and street art, launched a new exhibition called “Dismaland”, known as a bemusement park.

The park, situated in a former outdoor swimming pool in the English town of Weston-super-Mare, in Somerset, features a dilapidated Disney-style castle as well as several other art exhibitions, some of which are plays on Disney characters.

The website for the attraction says in the small print: “The following are strictly prohibited in the park – spray paint, marker pens, knives and legal representatives of the Walt Disney Corporation.”

Jeremy Blum, a partner at law firm Bristows in London, told WIPR that although a number of potential IP issues arise, Banksy could avoid potential infringement claims by adopting a fair use defence.

“The content of the park seems to reference Disney characters to varying degrees but the characters are in a compromising position.

“The introduction of a parody, caricature and pastiche defence to UK copyright law in October last year means that infringement can be avoided by fair dealing in the work for those purposes,” Blum said.

“Dismaland’s position is likely to be that its use is evoking the existing Disney copyright work but it is not identical and is different from it, as well as constituting mockery or humour.”

Lee Curtis, partner at HGF, said that as the art exhibition will apparently only have a short lifespan of five weeks, Disney may decide to let the matter pass and not make a challenge “for PR reasons”.

He said there is a possibility of a backlash among the public if Disney is seen as too heavy handed, “even though I believe they do have the IP rights to object to such use of the name Dismaland, aping of their overall trademark and branding, and the use of similar characters”.

But Curtis said Disney may decide to oppose a trademark application for ‘Dismaland’.

Earlier this month a Community trademark (CTM) application for the term was filed at the Office for Harmonization in the Internal Market.

It is not known if the application, filed by a UK-based company called Dismaland Limited, is connected to Banksy but the application covers goods and services including art exhibitions.

“The CTM application, which appears to have been filed by a firm presumably controlled by Banksy, is maybe a different matter,” said Curtis.

“An art installation may only be around for five weeks, but a CTM registration would be around for ten years and possibly forever. Here I suspect Disney will oppose the application to avoid any perceived dilution of their branding.

“Personally I feel that if Banksy is indeed behind the application it’s a strategic mistake to file it. Once you file a trademark application the defence of pure art is weaker and you increasingly are moving towards commerce. Ultimately Banksy can’t have his cake and eat it,” Curtis added.

Blum said that although the park is “clearly humorous and satirical”, there is a question of whether it constitutes fair dealing “given that a whole theme park has been erected”, which one could argue is competing with Disneyland as an attraction.

He added: “If Disney has a ‘Disneyland’ trademark registration one would expect Dismaland’s position to be that it avoids infringement because it is not sufficiently similar to Disneyland. However, it is questionable if the use unimpeachably avoids infringement on the basis of the extended protection given to marks with a reputation.”

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk


More on this story

Copyright
7 September 2015   Disney, Marvel and Lucasfilm have teamed up to tackle a baker who they claim is selling cakes bearing images of well-known film characters without their permission.
Copyright
7 September 2015   An exhibition created by street artist Banksy that alludes to Disney themes and characters is clearly satirical and Disney does not have grounds to sue over it, readers have claimed.
Trademarks
24 May 2021   The EU Intellectual Property Office has cancelled another trademark owned by street artist Banksy, determining it had been filed in bad faith.