Welcoming Recorded Music to the Public Domain
blog.archive.org
blog.archive.org
At Google, I was running the Cinema Club (in-person only showings of movies on DVD every Thursday night). I came across this movie and loved it. It had 4 stars from Roger Ebert. How you gonna beat that? Lots of people including me wanted to show it at Google.
It turns out that Ms. Paley had figured her 12 songs from the 1920s must be out of copyright, right? Wrong. The songs were not, and the publisher asked for (if memory serves) $40K or so per song.
Rather than negotiate it down and use that 4-star review to make $$$ from it, she did this Creative Commons thing. But you can't give away what you don't own.
Google's lawyer said No. She did some more complicated stuff, and the lawyer said "I've spent an hour trying to figure this out, and it's way more time than I should spend. So: still No."
It's a fun movie, though. Watch it.
Let's also keep in mind the difference between copyright and trademark; even if art containing Mickey Mouse enters the public domain, that doesn't mean that Disney loses the trademark to Mickey Mouse. AIUI you would be able to reproduce Steamboat Willie verbatim, but if you attempt to publish a new work derived from Steamboat Willie that includes Mickey Mouse they may be able to stop you based on trademark protections.
The cynic in me suspects that even this might be challenged. Is there anything specifically preventing trademark protections from applying to unauthorized verbatim reproduction, and only derived works?
Of course, just because using trademark in this way is nonsensical doesn't mean that Disney won't try and/or succeed. But it would be pretty outrageous. The only reason to entertain this notion at all is because Disney's past actions regarding copyright have been outrageously evil to begin with.
I wouldn't put it that way. Trademark [0]:
* Identifies the source of your goods or services. * Provides legal protection for your brand. * Helps you guard against counterfeiting and fraud.
> consumer confusion
Yes, preventing consumer confusion is an important reason for trademark laws to exist, as a protection against counterfeiting and fraud.
It makes me wonder if they will push DeSantis for president just to extend copyright?
This isn't really the case anymore:
- Copyright law was already harmonized up. There are very few countries that regularly grant longer terms: Mexico, Columbia, Jamaica, St. Vincent and the Grenadines, Samoa, and Equatorial Guinea. None of those countries are international dealmakers and I do not see the US or EU raising terms to match them.
- Disney's flagship properties aren't Disney works anymore. They're the Star Wars and Marvel universes. Those have greater cultural cachet, remaining copyright terms to match, and Disney owns them lock, stock, and barrel. Snow White isn't even their own work; it's a German folk tale that the Brothers' Grimm made a children's version[0] of, a century prior to Disney's animated adaptation. The characters and story are already public domain, Disney only owns an animated adaptation of it.
- In the sense that Disney might not fully control the Marvel Cinematic Universe, they stand to benefit by weakening copyright (so they can stop having to share Spider-Man with SONY), not extending it.
- There's less appetite among other creators for longer terms. The big hot-button issue with authors is the market power of large platforms; the sort of thing that can't be fixed by just lengthening terms out more. Furthermore, the Sonny Bono act was pushed through with a promise that the extra licensing money publishers got would result in more artists getting more money; this has not happened and I don't think they'll get fooled again.
- Stop SOPA/PIPA happened. Furthermore, thanks to a combination of YouTubers having terrible copyright discipline and actual scammers using DMCA 512 as an extortion mechanism; there's far more public awareness of the downsides of having strongly-enforced copyright laws.
[0] Ironically, the Grimm versions of these fairy tales are perceived as more "hardcore" and "uncensored", mostly because Disney softened them down more.
What you would have to worry about is the split between public-domain Mickey and copyrighted Mickey. The minimum standard for copyright infringement is access plus substantial similarity, so you'd have to make sure to either...
1. Only ever watch public-domain Mickey Mouse shorts, and hope nobody can argue access to the still-copyrighted works. This sort of sequestration would be rather difficult to pull off; though fortunately the whole "inverse ratio" nonsense that got Katy Perry in trouble has been overturned.
2. Intentionally watch all of the copyrighted shorts and use that knowledge as a guide of "what not to do". What actually constitutes substantial similarity is rather difficult; it's typically something juries decide on a case-by-case basis.
You'd be best protected if you were doing something entirely different to what Disney was doing with his[1] own characters. The idea behind substantial similarity is that if I can squint at your copy a little and see the copyrighted original, then you're not legally distant enough to be a separate work. So you want to make sure to keep novelty in mind when reusing old Disney works. Things that would be "obvious to try" likely have already been tried and are thus still under copyright[2].
[0] The intended target of copyright preemption was actually state law; pre-1973 states had their own legal regimes for sound recordings which didn't get struck down until just today. Interestingly enough these common-law sound recording regimes also sidestepped the whole "for limited times" things and were actually perpetual in some states. That's why so much music is hitting the public domain today.
[1] Historians of early American animation would probably argue that Disney did not create Mickey Mouse, but that Ub Iwerks did. This is correct; but you must also remember Walt Disney's villain origin story of having Ub's prior work on Oswald taken from him. Disney insisted on copyright assignment or work-for-hire status for everything afterwards, and that's what actually matters legally.
[2] This is the same reason why it's legally perilous to use public-domain Sherlock Holmes as a character; the stories where Arthur Conan Doyle decided to let Sherlock emote are still under copyright, so the character's emotions are copyrighted, too. This is an absolutely silly legal argument that the Doyle estate has actively pursued in court.
Alas a quick search yielded nothing standout at all data wise.