When a company is deciding how to deal with a potential intellectual property issue, it is important to determine where there is a strong legal case that can be established. However, it is also important to take into consideration how the issue will be interpreted by the public. There may be cases where the law is completely on your side, but where public opinion turns so sharply against your company that taking action would cause a public relations disaster.
This recently happened to The Walt Disney Company, which recently received backlash for a $250 licensing fee that it requested from Emerson Elementary School in Berkeley, California. Despite the fact that the school screened the film The Lion King without a license, Disney not only issued an apology, but then-CEO Bob Iger indicated that he will personally be donating money to the school in an attempt to make amends. The public criticism in this case was so swift that Disney apologized very quickly, but surely it will now be more difficult for Disney to get other schools and community organizations to pay licensing fees, since it seems clear that Disney may not be in a position to enforce these fees.
Another recent example of this phenomenon is the recently published book titled Rage Baking, an anthology of essays and recipes by women who turned to baking post-2016. The authors of the book had to make a statement after receiving a torrent of criticism online coming to the defense of a woman named Tangerine Jones who had been using the hashtag #ragebaking on Instagram for several years. Although there is of course no copyright in the title of books, nor in hashtags, the public seems to have largely sided with Jones. In this instance, although Jones clearly did not have any legal claim against the authors or the publisher, because the public sentiment was on her side, she was the recipient of a good deal of public goodwill and ultimately an apology.
Brand owners should be aware that when they are evaluating a potential IP issue, it is not enough to merely examine what rights and remedies are prescribed under the various IP statutes. Public backlash can be swift, and does not always end up favouring the party that has the law on their side.