Mickey’s Copyright Adventure: Early Disney Toon Is Set to Be Public Property(nytimes.com)
nytimes.com
Mickey’s Copyright Adventure: Early Disney Toon Is Set to Be Public Property
https://www.nytimes.com/2022/12/27/business/mickey-mouse-disney-public-domain.html
58 comments
The issue, as it is presented in the article, is with how copyright law intermingles with trademark law. They noted that people will be able to distribute the original short. They also noted that any unique works that incorporate the iconic mouse (even in its original form) may run into litigation. Given Disney's financial interest in The Mouse, I suspect they were understating it.
It is easy to oversimplify what is going on here if it is only viewed through the lens of copyright. While it would be easy to dismiss trademarking a character in most fictional works as doing an end-run around copyright law, The Mouse appears to have been a fairly consistent and identifiable part of Disney's image for decades. In the casual meaning of the word, it has been a trademark of the company. There is also a question of how the evolution of the character plays a role. As far as I can tell, Steamboat Willy is dead an Mickey took his place. Disney's trademarking of Steamboat Willy can be construed as an attempt to do an end-run around copyright law, but the visually similar Mickey has had a more enduring (and endearing) history.
Or perhaps certain types of trademarks, in the legal sense, should have a limited duration as well. I don't know of many companies that have maintained an immutable corporate image across decades simply because it does not make sense. Culture changes, and companies should be adapting with the times.
It is easy to oversimplify what is going on here if it is only viewed through the lens of copyright. While it would be easy to dismiss trademarking a character in most fictional works as doing an end-run around copyright law, The Mouse appears to have been a fairly consistent and identifiable part of Disney's image for decades. In the casual meaning of the word, it has been a trademark of the company. There is also a question of how the evolution of the character plays a role. As far as I can tell, Steamboat Willy is dead an Mickey took his place. Disney's trademarking of Steamboat Willy can be construed as an attempt to do an end-run around copyright law, but the visually similar Mickey has had a more enduring (and endearing) history.
Or perhaps certain types of trademarks, in the legal sense, should have a limited duration as well. I don't know of many companies that have maintained an immutable corporate image across decades simply because it does not make sense. Culture changes, and companies should be adapting with the times.
> As far as I can tell, Steamboat Willy is dead a Mickey took his place.
The character in Steamboat Willie is Mickey Mouse. There’s no one named Steamboat Willie in the animation. That said there have been several visual evolutions of the character given the same name, and Disney may claim newer versions are still copyrighted.
The character in Steamboat Willie is Mickey Mouse. There’s no one named Steamboat Willie in the animation. That said there have been several visual evolutions of the character given the same name, and Disney may claim newer versions are still copyrighted.
Trademarks are about consumer protection (first-most) and possibly also 'brand dilution'.
Sure, in the case of Disney/Mickey, trademark is a (huge) factor. But in the vast majority of cases there is no trademark issue, only copyright.
Trademarks should be limited to providing identification for a business, not something that applies to products or cultural elements.
You shouldn't be able to hold a trademark on "Star Wars" or "iPhone," but should be able to for LucasFilm or Apple. All product names should be effectively generic.
Copyright and patents should just be straight up abolished, or at least severely scaled back and limited to 1-3 years.
You shouldn't be able to hold a trademark on "Star Wars" or "iPhone," but should be able to for LucasFilm or Apple. All product names should be effectively generic.
Copyright and patents should just be straight up abolished, or at least severely scaled back and limited to 1-3 years.
So in your world when I go to the mall. I buy an iPhone from a cellphone store. Id have no confidence on it being the Apple iPhone.
So then LucasFilm would set up a subsidiary called "Star Wars: The Force Awakens LLC" and license the trademark to themselves to sell the generic "Movie" product, or whatever loophole works. Trademarks could be more restricted, but they serve a purpose to both consumers and brands.
Why would that be good?
I've heard the suggestion that copyright could be extended after 5 years by paying a dollar to renew, after 6 years by paying 2 dollars, 7 years by paying 4, 8 with 8, etc.
If your copyright is so immensly valuable that it's worth paying to renew it, that's fine. The longer you keep something in copyright, the larger your harm to society becomes due to preventing legal fan works and derivatives from being made. The fee to renew would reflect that.
If your copyright is so immensly valuable that it's worth paying to renew it, that's fine. The longer you keep something in copyright, the larger your harm to society becomes due to preventing legal fan works and derivatives from being made. The fee to renew would reflect that.
Other benefits of this approach: registration would make it much easier to identify works out of copyright and it would be much easier for the public to reclaim abandoned works.
seems like a good idea - what's the downside?
One downside of any sort of copyright registration requirement (probably especially one requiring ongoing renewals) is that it benefits corporations at the expense of individual creatives. Disney's lawyers are not going to forget to renew and the revenues involved mean that any registration is likely trivial. Not so for an individual author or photographer.
In fact, groups representing authors and photographers have opposed orphan works legislation in the past.
The US used to require affirmative action to gain copyright protection but this was phased out to be consistent with most other countries.
In fact, groups representing authors and photographers have opposed orphan works legislation in the past.
The US used to require affirmative action to gain copyright protection but this was phased out to be consistent with most other countries.
> the revenues involved mean that any registration is likely trivial.
Over time, this would exponentially not be the case
Over time, this would exponentially not be the case
Even if it's ultimately untenable for even corporations to pay you've made it impractical for most individuals far faster.
Copyright applies from the moment of creation for all creative works in the US today. But registering, which as I understand makes it easier to collect damages, costs money (call it $100, the details are somewhat complicated). I probably wouldn't go through that for most things even today.
Copyright applies from the moment of creation for all creative works in the US today. But registering, which as I understand makes it easier to collect damages, costs money (call it $100, the details are somewhat complicated). I probably wouldn't go through that for most things even today.
What constitutes 'work'. On one extreme, a studio spending millions making a movie is a single piece of work. On the other extreme, a photographer might take 100 photos in a day that he/she offers for sales. The number won't work for the photographer.
Not OP, but I would imagine that the USG isn’t in a position to efficiently and effectively accept lots of small payments. Working from that premise, you’d probably optimize for taking advance payment for 8 years with some way to retroactively pay if your work is suddenly worth more than $20.
> It's pedantic to say it, but copyright is not directly intended to help creators; its purpose is to enrich the public by inspiring creators to produce more. Helping creators profit/benefit from their work is a means to an end.
If you look at the history, the purpose is to enrich publishers, and everything else is simply to make the legislation more palatable.
If there was truly concern about enriching the public domain, the system would be dramatically different.
If you look at the history, the purpose is to enrich publishers, and everything else is simply to make the legislation more palatable.
If there was truly concern about enriching the public domain, the system would be dramatically different.
Sure, you can point out how it works in practice, but the concept of "for the public good" is in the literal description in the constitution.
I believe I read an article (by jerry pournelle?) where he was fine with copyright before 1976 - 28 years with a renewal for an additional 28 years. I believe the normal thing authors worked out was the publisher would get the first term, then the author could renew and get next 28 years.
That seems entirely reasonable to me.
That seems entirely reasonable to me.
28 years (+28) is better than now, but to my original point, in this era, hasn't Kim Stanley Robinson had enough time to monetize "Green Mars" (1994 Hugo award winner) by now -- at least enough to incentivize writing it in the first place?
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I wouldn’t want just anyone to be able to use my characters and setting for their grummy cashgrabs.
I think reasonable copyright would be 10 years or lifetime of the author which ever occurs later. This way the author would be in charge of their characters while alive and their kids would still gain from works done in the later years
I think reasonable copyright would be 10 years or lifetime of the author which ever occurs later. This way the author would be in charge of their characters while alive and their kids would still gain from works done in the later years
Why (and I realize this is one of those questions that sounds snide, but I do not mean it so) should a creator's kids gain from a piece of art or work of music after a creator's death?
Editing to clarify: I fully accept that copyright is a good thing to give incentives to people to make art and music and creative works, I just don't understand why that incentive should be transmissible to their kids, i.e. people who were presumably not involved in making it in the first place.
Editing to clarify: I fully accept that copyright is a good thing to give incentives to people to make art and music and creative works, I just don't understand why that incentive should be transmissible to their kids, i.e. people who were presumably not involved in making it in the first place.
To incentivize creative people to be productive even in their late years. Since I can only talk from my point of view; at least I would be a bit more apprehensive continuing to write and create if I knew I didn't have much time left.
I don't see why it wouldn't be reasonable for the inheritors of a author to benefit for a little while for their parent's work. 10 years feels very reasonable.
I don't see why it wouldn't be reasonable for the inheritors of a author to benefit for a little while for their parent's work. 10 years feels very reasonable.
People pass lots of other things onto kids. Leaving aside debates about estate taxes etc., it's unclear that royalties from creative works should be uniquely disadvantaged.
In this alternate future, HBO Time Warner maintains a force of elite counterassassins to protect their interest in George RR Martin's IP, the 10 year mark having long passed.
If you don’t want other humans to remix information you have broadcasted, then don’t broadcast in the first place. It’s not like you haven’t been using other people’s ideas in your “original” work.
How can you miss read something this hard?
Even now it is perfectly fine for you to make your own original character influenced by Harry Potter or Mikey Mouse. Heck make it a Wizard Mouse called Marry Motter. Still you can't - and in my mind shouldn't - be able to write Harry Potter and the Magical Mouse.
Even now it is perfectly fine for you to make your own original character influenced by Harry Potter or Mikey Mouse. Heck make it a Wizard Mouse called Marry Motter. Still you can't - and in my mind shouldn't - be able to write Harry Potter and the Magical Mouse.
So you are presumably OK with Disney, Sony, etc. grabbing a recent book and making a movie out of it without giving the original author a cent or any credit?
It's an interesting question. Maybe copyright shouldn't be shorter, but the better answer is something like a mechanical license to cover a music composition. After the first publication, anyone can remix for a set fee.
https://en.wikipedia.org/wiki/Mechanical_license
This is how it works now.
If someone holds a copyright, you can license it from them if they so desire. The fee is determined by your legal team and theirs.
If someone holds a copyright, you can license it from them if they so desire. The fee is determined by your legal team and theirs.
That's not how it works now, except for music. From the wikipedia article on mechanical licenses (the link I provided):
"Within copyright law within the United states, such mechanical licenses are compulsory; any party may obtain a license without permission of the license holder by paying a set license fee, that as of 2018, was set at 9.1 cents per composition or 1.75 cents per minute of composition, whichever is more, which are to go to the composition copyright holder."
Note "compulsory". There are a multitude of written and art works that are effectively copyright zombies: they are clearly within the term of copyright, but there is no clear owner to reach out to in order to license them. Hence generally out of fear of a lawsuit, they are dead as inspirations for other works.
Further, to your exact point, "if they so desire. The fee is determined by your legal team and theirs." If the author wants to be restrictive, their work will never be able to be inspirational to another work. Even if they are open to the idea, the concept that lawyers (probably) have to get involved reasonably has to diminish the number of works that are likely ever to be inspirational for other works by an enormous number.
"Within copyright law within the United states, such mechanical licenses are compulsory; any party may obtain a license without permission of the license holder by paying a set license fee, that as of 2018, was set at 9.1 cents per composition or 1.75 cents per minute of composition, whichever is more, which are to go to the composition copyright holder."
Note "compulsory". There are a multitude of written and art works that are effectively copyright zombies: they are clearly within the term of copyright, but there is no clear owner to reach out to in order to license them. Hence generally out of fear of a lawsuit, they are dead as inspirations for other works.
Further, to your exact point, "if they so desire. The fee is determined by your legal team and theirs." If the author wants to be restrictive, their work will never be able to be inspirational to another work. Even if they are open to the idea, the concept that lawyers (probably) have to get involved reasonably has to diminish the number of works that are likely ever to be inspirational for other works by an enormous number.
The difference is the (generally) required licensing and the set fee.
For example, as I understand it, a playwright can basically say "I don't let high schools or colleges stage my works." With respect to book adaptations, there were actually some issues with Sorkin's script for To Kill a Mockingbird because he made some changes in Atticus Finch's character development relative to the book.
For example, as I understand it, a playwright can basically say "I don't let high schools or colleges stage my works." With respect to book adaptations, there were actually some issues with Sorkin's script for To Kill a Mockingbird because he made some changes in Atticus Finch's character development relative to the book.
Not OP, but I'd be fine with copyright being limited to exactly "must credit any works used that were created by other people".
But yes, abolishing copyright other than ensuring credit is given is the right move. The scenario you bring up wouldn't happen like you're thinking though. Disney or Sony would be free to make a movie using other people's art, but they'd have no legal means to enforce that people give them money to watch it, so behaving unethically would be a great way to not get any money from making it.
But yes, abolishing copyright other than ensuring credit is given is the right move. The scenario you bring up wouldn't happen like you're thinking though. Disney or Sony would be free to make a movie using other people's art, but they'd have no legal means to enforce that people give them money to watch it, so behaving unethically would be a great way to not get any money from making it.
One can simultaneously think that copyright terms are too long and that (almost certainly primarily) companies shouldn't be able to parachute in after a few years have passed and hoover up creative works and exploit them for free.
Yes. Still 10 years isn't even all that long and I think it is much more important that author hold copyright all of their life. You could probably talk me out of the 10 year extension to works made just before author died, but I don't think you can make persuasive argument why I shouldn't by default hold copyright to my creations while I am alive.
Copyright in Canada for films is 75 years. So, Disney works before 1948 are public domain here. I can't seem to actually find any of them, though. I am not a lawyer, but I'm pretty sure I'd be within my legal rights to take e.g. an original print of Bambi as released in 1942, scan it, and make it available online for Canadians. I'm also pretty sure I'd get sued anyway.
Getting a copy of the original is also something of a challenge for this practically. (VHS and DVD releases are probably subject to a new copyright, remastering is often copyrightable.) If all extant accessible versions of a work are under copyright, then the work being in the public domain is only theoretical.
Getting a copy of the original is also something of a challenge for this practically. (VHS and DVD releases are probably subject to a new copyright, remastering is often copyrightable.) If all extant accessible versions of a work are under copyright, then the work being in the public domain is only theoretical.
AFAIK you don’t need an original print. All versions that aren’t materially different lack copyright and are free to distribute.
I would say caution is advised. I have seen it argued that one trick to prevent expiry is to re-record the audio with a new orchestra thus causing it to become a new production.
A new score would certainly qualify as "materially different", to GPs point
Yes and no. You can still record the original music again, but with a brand new orchestra. Is it materially different then? From a legal standpoint? From an individual standpoint?
The answer is yes. There is copyright for the score and copyright for the performance. New performance, new copyright.
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Lol at the "time is money" screenshot from Mickey's Christmas Carol, kudos to the graphics folks who found that gem for this article
The cautionary article by the New York times, clearly entangled as a media company with Disney as well, seems to be doing Disney a favor. As it will most likely appear as a top result for when the inevitable creative artists try to capitalize on this expiration of their copyright.
What is the Mickey Mouse trademark for, exactly? A character is not a product or service. If the trademark forbids anyone but Disney from making cartoons featuring Mickey Mouse, it is obviously an abuse and it should be revoked.
https://trademarks.justia.com/search?q=Mickey+Mouse
Here are US trademarks.
The trademark does not stop people from making a cartoon featuring Mickey Mouse, copyright does. We saw this with “Winnie the Pooh”. New horror movie can use the Pooh bear and friends, but can’t use the red shirt as that’s still copyrighted.
Trademark stops people from being able to use the name Mickey Mouse or the stylized type version they trademarked.
Here are US trademarks.
The trademark does not stop people from making a cartoon featuring Mickey Mouse, copyright does. We saw this with “Winnie the Pooh”. New horror movie can use the Pooh bear and friends, but can’t use the red shirt as that’s still copyrighted.
Trademark stops people from being able to use the name Mickey Mouse or the stylized type version they trademarked.
Note that "Mickey: the character" does not suddenly become public domain, Mickey is a trademark of the Disney corporation, and trademarks do not expire. However some specific "Mickey: the film" will go into public domain.
I am not a lawyer, but I suspect this means that is will be fine to redistribute specific early mickey films, however any remixes, or reuse of the content, you may find yourself violating Disney's mouse trademark. You would have to successfully argue that your use of Mickey came form a public domain source and does not exist in the same market as Disney's trademark... Good luck on that, you'll need it.
I am not a lawyer, but I suspect this means that is will be fine to redistribute specific early mickey films, however any remixes, or reuse of the content, you may find yourself violating Disney's mouse trademark. You would have to successfully argue that your use of Mickey came form a public domain source and does not exist in the same market as Disney's trademark... Good luck on that, you'll need it.
Steam boat willie : the character will become public domain. You are free to create new stories with steam boat willie as a character.
I'm not a lawyer either, if copyright is expired, you're free to make a derivative work. Although, you certainly have to be sure you don't derive from a derivative work whose copyright has not expired.
Trademark issues will be tricky, there is a concept of fair use in trademarks, and it seems to me, if you can sell a copy of the film, you must be able to use elements of the film to sell it. If you can create and distribute derivative works, you must be able to use elements of the works to sell them. But maybe we'll just have to have white boxes with 3rd party Mickey (as seen in Steamboat Willie) movies, and boring movie posters too. I expect to see a stream of lawsuits until clear rulings are available.
Trademark issues will be tricky, there is a concept of fair use in trademarks, and it seems to me, if you can sell a copy of the film, you must be able to use elements of the film to sell it. If you can create and distribute derivative works, you must be able to use elements of the works to sell them. But maybe we'll just have to have white boxes with 3rd party Mickey (as seen in Steamboat Willie) movies, and boring movie posters too. I expect to see a stream of lawsuits until clear rulings are available.
If Mickey is public domain soon, does that mean Oswald the Rabbit is already out and due for an epic reboot?!?
Oswald has been revived by Disney in the last 15 years, likely just to ensure it remains in the same "dangerous" legal state as "Steamboat Willie" will be (i.e. free of copyright in theory, sure to attract lawsuits in practice and so effectively untouchable anyway).
Creative work benefits the public in at least two ways: primarily, by being itself. People like reading the original Harry Potter books. Copyright encourages that by allowing creators to sell their work: Rowling is rich.
Secondarily, by inspiring other works. Fifty Shades of Grey started out as Twilight fan fiction. Art inspires more art. Copyright hinders this process.
Based on the above, copyright should now be much shorter: on the order of a few years.
In the past it took time to extract value from a work. Successful books had dozens of printings. Shipping books around the world was slow. Discovery of material to adapt into film took time. Note, this wasn't universally true: the Gone With the Wind film adaptation happened only three years after the book was published.
But take for example the Lord of the Rings books. They were published in the UK in 1954 and 1955, but some sort of copyright issue/loophole caused them to be widely available in the U.S. in the 1960s, before authorized editions came out. When they did become available, authorized editions then had a note that included a phrase something along the lines of, "Those having a courtesy for living authors (at least), will purchase this edition (of the book) and no other."
In any case, now with the internet and digital media, the majority of the value for most publications should be available within just a few years of release. As such, the balance between the time allotted for initial value production and the value as material to inspire other works should shift forward substantially.
If I were setting copyright law, I'd probably make it something like 5 years automatically, with extensions available yearly after that by filing inexpensive paperwork, up to a maximum of 10(?) years.