Problems for Pixar: Artist Sues for Copyright Infringement over Unicorn-Themed Van in Upcoming Movie Onward
Sweet Cecily Daniher, a San Francisco artist, recently sued Disney, Pixar, and producer Kori Rae for copyright infringement in the upcoming movie Onward.1 Daniher argues in her complaint that Pixar used her “tremendously cool, dark blue and/or purple 1972 Chevrolet G10 van, with shag carpeting, red velour walls” and a unicorn mural painted on the side.2 The unicorn mural features a white unicorn standing only on its hind legs in a body of water in front of mountains against the night sky. In place of a sun or moon, a black gem is in the corner with lightning bolts radiating outwards. “Vanicorn,” as Daniher has named her van, is one of many examples of how Daniher has used unicorns as a central theme in her artwork over the course of her career.3
In Onward, elves Ian and Barley Lightfoot search for a way to reunite themselves with their dead father using the help of a character named Guinevere, a dark blue and/or purple 1972 Chevrolet G10 van with a red interior and a big mural of a white mythical beast on its side.4 Guinevere’s mural has a white flying horse, called a Pegasus in Greek mythology, who is depicted mid-flight across a starry night sky with a moon in the right corner.
Daniher argues that Guinevere is a direct copy of Vanicorn, down to the year, make, and model.5 Pixar previously used Vanicorn with Daniher’s consent. In September 2018, Daniher rented Vanicorn to Pixar for a one-day music festival/activity day for Pixar employees and families.6 Daniher argues that the contract explicitly states that Vanicorn would only be used as a visual prop and the contract prohibits any photos, videos, or visual representations of Vanicorn for any purpose other than the event. Daniher alleges that Rae told her that Pixar intentionally did not inform her that they intended to use Vanicorn as a character in Onward because, at the time, the film lacked a title and so they couldn’t ask her to sign a non-disclosure agreement.7
According to 17 U.S.C. § 106, an author has the exclusive right to reproduce the copyrighted work and prepare derivative works.8 The Northern District of California would be unlikely to find that Guinevere is a reproduction of Vanicorn due to the above described differences but may hold that Pixar used an unauthorized derivative work. Courts have typically required the plaintiff prove the following elements for infringements over derivative works, assuming a valid copyright for the original: (1) defendant’s access to the original work and its similarity to the contested work, otherwise known as probative similarity; and (2) defendant’s use of copyrightable material, otherwise known as improper appropriation.9
While Pixar has yet to respond to the complaint, there is strong evidence that Pixar had access to Vanicorn. Pixar will likely argue, however, that there is no probative similarity because though both vans feature white mythical beasts against a night sky, the murals have noticeable differences. For instance, the animals are of different species and positions, the background of Vanicorn is significantly more detailed, and the moons in the two murals are distinct. Pixar will probably also claim that improper appropriation is not met based on 17 U.S.C. § 102(b), which states that copyright protection does not extend to an idea.10 Pixar will likely argue that Daniher is attempting to copyright the broad, common theme of a mythical beast in the night but is limited to the particular expression depicted on Vanicorn. In other words, Daniher cannot have a monopoly on depicting white mythical beasts against a dark sky.11
The two works of art, however, are most similar in that both are depicted on blue/purple vans. The Northern District of California will need to determine whether the van is part of the artistic expression. If so, there is a higher likelihood that the court would find probative similarity because the van would be not only yet another similarity, but an unusual one. The court would be less likely to find that Daniher is laying claim to a common theme, since vans are not commonly associated with unicorns. Ultimately, the court must decide how to weigh the unique, shared medium of expression against arguably similar depictions of a common theme.
For images of Vanicorn and Guinevere, please see the following article: https://www.hollywoodreporter.com/thr-esq/disney-sued-by-artist-unicorn-adorned-van-pixars-onward-1274131 [https://perma.cc/AD9C-96WZ].
Ashley Cullins, Artist Sues Disney, Pixar Over Unicorn-Adorned Van in ‘Onward’, HOLLYWOOD REPORTER (Jan. 28, 2020), https://www.hollywoodreporter.com/thr-esq/disney-sued-by-artist-unicorn-adorned-van-pixars-onward-1274131 [https://perma.cc/AD9C-96WZ].↩
Complaint at 4, Daniher v. Rae et al, No. 20-cv-612 (N.D. Cal. filed Jan. 27, 2020).↩
Id. at 9.↩
Id. at 10.↩
Id. at 7.↩
Id. at 11.↩
17 U.S.C. § 106.↩
Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946).↩
17 U.S.C. § 102.↩
See Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).↩