Mickey, Disney, and the public domain: A 95-year love triangle
web.law.duke.edu
web.law.duke.edu
According to what is stated to be a 1928 poster, https://www.huffpost.com/entry/mickey-mouse-poster_n_2149610 , he is depicted with a red shirt, white buttons, yellow gloves, and brown shoes.
Disney putting Steamboat Willie in their logo is unlikely to actually allow Disney to effectively extend restrictions on the cartoon—but I wouldn’t be surprised if it was a calculated move to deter people from reproducing Steamboat Willie after its liberation simply by the implicit threat of expensive litigation from a very large team of lawyers.
There's case history on that in the US as well.
Trademarks are restricted to brand identification only; attempting to use them for anything else will result in trouble and wasted money.
[0] "Intellectual property is any law that allows you to dictate the conduct of your competitors." - Cory Doctorow, paraphrased
[1] Yes, it's a shitty made-up term to make you confuse four different kinds of law, no I don't care. There's enough negative sentiment around "intellectual property" these days that the Stallmanian position sounds like a defense of it now.
[2] It's a country, get over it
How do you trademark the exact shape of a Lego brick?
On the other hand, trademarks tend to be some form of art, so copyright and trademarks make sense to coincide
..and the hundreds of differently shaped bricks that come with it.
You can trademark a shape, actually. It's called Trade Dress[0], and The Lego Group uses it, too. The Minifig, for example, is registered[1].
Sure there'll be bad & ugly & awful things done with Steamboat Willie. But no press is bad press. And there's going to be some press about the things people do with the mouse.
> Disney has also started using this logo before some of its films.
> If you make your own Mickey cartoon, can Disney use trademark law to interfere? Trademark law is all about preventing consumer confusion – and not about getting in the way of creativity – so it depends on whether people are likely to be misled about the source of your cartoon. As long as no one thinks it is a Disney joint, there should not be a trademark problem.
Call me naive, but I don't think there was anything calculated about it more than attaching a mascot to the studio - like the Luxo Jr Lamp on Pixar films.
I'm saying this of course with a tongue in cheek but that doesn't mean it's completely false.
[1] DFA itself as a division of the company hasn't existed continuously in that 95-year period, of course. It was shutdown by Eisner for a while in favor of cheaper (and mostly outsourced overseas) Disney Television Animation and various dalliances with Pixar.
[2] Including the years that Disney thought it didn't need an active Disney Feature Animation department. The Steamboat Willie logo does also feel a bit like an internal political statement in that respect, too, because it kind of also says "this company was founded on Feature Animation".
Basically the Disney brand has gotten so huge and diversified that a public domain Mickey isn't an existential threat to their business anymore. Terrifying in its own right, but at least we might see an end to the endless copyright extension. Interesting times ahead!
Edit: I think the confusion may arise from the Berne convention. The US did sign, but not until 1988.
It should be looked form the frame of how long is appropriate to promote the creation of the arts etc. Realistically no author is thinking I won't create this art unless I get lifetime + 70.
I would think 50 years total is a much more reasonable figure.
Corporations can't wait even 20 years because tastes change. There's not much mainstream demand for Sum 41 anymore. Also corporations can't have much margin on public domain material; there's too much competition if anyone can publish it, and for digital creations they'd be competing with legal p2p sharing. So they need that exclusivity.
Perhaps not for Sum 41. But how about Beatles? Elvis? Michael Jackson? Metallica?
I don't know if people will still be listening to Swift and Eilish in 50 years from now, but something tells me that Beatles, Iron Maiden, Michael Jackson, Sinatra, will echo for eons..
This has the nice side effect of wildly-successful works disproportionately funding the copyright offices, thus enabling theoretically lower fees for newcomers.
Sure, but should a corporation continue to make huge profits from these artist who will be long dead?
Not all copyright is owned or even licensed to organisations.
It really is a bad feel if you created something, then 20 years later someone releases the exact thing you created and make millions and you don't get a cent of that money.
Also many people after retirement age probably need the income from royalties a little bit more than when they were in their prime, not less.
That isn't what the entire comment thread is discussing though so I misinterpreted your comment. Apologies
Corporations create the taste. They can even wait hundreds of years. Just look at how many old stories are remade today. Unless there is something extraordinary, hyped for longer than a summer, they will wait all they want.
I agree, I don't see how 20 years isn't long enough from that pov.
What company is going to wait 20 years before signing a book deal, film deal, etc.
Further. This still ignores the fact that there's value to having the original creator attached. You don't want the author of the book trashing your new film, you want them promoting it.
For example, Netflix just now announced a reboot of One Piece Anime, a series running for 25 years. The creator is still working on the original source. Imagine if Netflix could just do that on their own, the creator had no influence at all on their work. They could just make shit along the way as they see it. Twist it, change it, with their power, they could be damaging the original work for good, simply because they are bigger.
I think it just depends on the pricing the copyright holder wants. If you can pay a few bucks and get exclusive rights, it's totally a win. If you have to mortgage your business to get the rights, it's a much harder decision.
I think a reasonable compromise would be, by default a copyright lasts 10 years, but they can extend it another 10 or 20 years(or maybe even until their death), if they pay a fee of some sort, perhaps yearly, so the copyright will expire as soon as it doesn't make sense to pay the fee anymore.
This lets the long-term copyright winners continue to win for most of their lifetime, if they cut the people(the govt) in on some of that return. While most things that don't need long term copyright get dumped into public domain to help invigorate and make more awesome new ideas.
Public domain is not new. They already have this situation now, and usually avoid this, probably for exact this reason.
> This lets the long-term copyright winners continue to win for most of their lifetime
Seems not very reasonable to support the rich and paywall the poor.
If you are poor, then there is zero reason to renew the copyright, you clearly aren't making any money off of it. I view it as a tax on the copyright, it could even be implemented that way, say 10% of your take rate or something.
You can enjoy your house for 20 years.
Movies and music last a little shorter. For some reason musicians tend to have short natural lives, and copyrights start to seem like grave-robbing.
Video games and software are practically dead within two decades. The primary effect of copyrights on software more than 20 years old seems to be to stifle innovation and promote rent-seeking. I think this is why tech people have such a dim view of copyright, because the system as it exists seems to create a lot of busywork and headaches that just feel so unnecessary for anyone tasked with filling in the gaps.
Maybe you can make an FPS game with it? https://www.youtube.com/watch?v=av3K-PEEF1c
To clarify, only in the US (and a few others not following the Berne convention). Night of the Living Dead is still in copyright for 95%-ish of the world (unlike some people insisting that "It's Public Domain worldwide." because sadly that doesn't how copyright works.) This is of course more complicated (rule of shorter term may be applied here but that's a can of worms), but generally US copyright regime was weird (and still kind of is since that other countries do have a separate moral and economic rights).
A sister comment suggests that this was some feature (bug?) of US copyright law at the time, can anyone elaborate?
https://en.wikipedia.org/wiki/Berne_Convention_Implementatio...
[1] There is an argument to be made that US copyright law still isn't compatible with Berne, but the rest of the world has decided having the US in Berne is important enough that as long as US law is close enough that you can make a hand wavy argument that isn't completely ridiculous everyone lets it slide.
In addition to the belated Berne Convention adaptation, the US also required registration of copyright, and to this day still "prefers" registration. (However the reality is that while modern work is still in copyright regardless of registration status, in case there's a legal suit the possible remedies are severely curtailed if it's not a registered work, so to this day it's still effectively mandatory. This... has been a grumbling of some countries since that Berne convention requires that there should not have formalities, and this seems to retain that formality system.)
It should be noted that only some of the possible remedies are curtailed. Attorney fees and statutory damages are curtailed, but injunctions and actual damages are not.
Also the curtailing is just for infringement before registration. I'm not quite sure what that the implications are for that.
For infringement that has stopped by the time you register and sue it seems straightforward--all you might get are actual damages from that infringement and an injunction ordering them to not infringe again.
But infringements are usually ongoing, I believe. So what if you just sue for an infringement that happened after you registered? Can you then get attorney fees and statutory damages?
If you can, then in the case of ongoing infringement it might not make much difference. Your attorney costs are going to be about the same regardless of whether the case is just dealing with the infringements after registration or is deal with all of the infringements. And statutory damages are per work infringed, not per infringing copy, although I'd expect the amount to be lower if they are only meant for post-registration infringement.
The statute that curtails attorney fees and statutory damages pre-registration says it applies to "any infringement of copyright commenced after first publication of the work and before the effective date of its registration [...]". The question then is when does an infringement "commence"? Would ongoing infringement all count as commencing with the first infringement, so it would all be denied attorney fees and statutory damages?
There's nothing I noticed in the definitions section of the copyright statute that says what "commence" means. I did find that for purposes of the statute of limitations on bringing a copyright suite, the time is counted from the most recent infringement that is part of an ongoing infringement, and would guess that it has similar meaning elsewhere but law is not always that consistent.
> This... has been a grumbling of some countries since that Berne convention requires that there should not have formalities, and this seems to retain that formality system
The requirement that you register for suing only applies to infringement of works that are "United States" works. A published work is a "United States" work only if it was first publication was in the US or simultaneous in the US and somewhere else, or if it was first published someplace that is not a party with the US in any international copyright agreement and all the authors are "nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in" the US.
So, if you are say some author in some random Berne country, publish your work there but not simultaneously here, and then later find someone in the US infringing, you don't have to register to sue here because that would not be a "United States" work. The US argues that this satisfies Berne. Berne is about how you treat works and authors from other countries. It's OK if you treat domestic works and authors worse than foreign works and authors.
You do need registration for attorney fees and statutory damages, but I think the argument for that being OK under Berne is that the only remedy Berne requires is the seizure of infringing goods.
They've all fallen into the dead hole of oblivion. The World's loss, but Disney doesn't care. Everything they get their grubby little fingers on turns to shit.
There is a reason a lot of us boycott Disney.
People with copyrights today, don't lose anything. Only new ones have shorter terms.
Reducing the length of existing copyright terms might be considered an ex post facto law. Those are explicitly prohibited by the Constitution.
The Constitution states that copyrights must be limited in length. Retroactively extending the duration of existing copyrights (as opposed to new copyrights) should be unconstitutional, but the Supreme Court said in Eldred v. Ashcroft that it’s fine—wrongly, in my opinion. Correcting them would require an amendment.
It's arguable that "about a century" was not what the drafters of the Constitution had in mind when writing "a limited time", but convincing the Supreme Court of that would be harder than an actual amendment.
But isn't the ex post facto prohibition mainly related to consequences of past actions rather than general public policy? No one is going to jail because copyright terms were reduced to 15 years from 95.
I think such a reduction would definitely be constitutional if it were phrased as "all new copyright terms will be XYZ, and existing ones will expire XYZ from the effective date of this act," but I'm not totally convinced that's necessary.
Takes longer than changing the terms of existing grants, but so what.
No, that is definitely not an ex post facto law. That's not even close to what the ex post facto law clause covers (dealing with punishments for actions that were kosher at the time they took place).
There is an argument that shortening copyrights is prohibited by the takings clause. But I think there is a very good argument that shortening them isn't prohibited by the takings clause (for the same public-private interest balance reason that led to the first amendment arguments in Eldred v. Ashcroft and Golan v. Holder failing).
The USA might get away with it, but smaller countries likely can't.
This would seem to indicate that the parent was right -- the long extension to copyright is because the US decided to match Europe's protections. Although, on second reading of your comment, I wonder if you mean that US companies convinced Europe to provide longer protections, with the intent to then make the US match the policies they pushed in Europe? That seems very elaborate
Example: https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-...
> The Senate Report gave the official reasons for passing copyright extension laws [...] to ensure adequate copyright protection for American works in foreign nations
... it also notes:
> The report also included minority opinions by Herb Kohl and Hank Brown, who believed that the term extensions were a financial windfall to current owners of copyrighted material at the expense of the public's use of the material.
And who supported the bill and lobbied for it?
> Since 1990, The Walt Disney Company had lobbied for copyright extension. The legislation delayed the entry into the public domain of the earliest Mickey Mouse cartoons, leading detractors to the nickname "The Mickey Mouse Protection Act".
> In addition to Disney, California congresswoman Mary Bono (Sonny Bono's widow and Congressional successor), and the estate of composer George Gershwin supported the act. Mary Bono, speaking on the floor of the United States House of Representatives, said: "Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [then-MPAA president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress."
> Other parties that lobbied in favor of the Bono Act were Time Warner, Universal, Viacom, the major professional sports leagues (NFL, NBA, NHL, MLB), and the family of slain singer Selena Quintanilla-Pérez.
So, primarily American corporations and individuals looking for a "financial windfall", including Sonny Bono himself who would have liked the act to completely violate the US constitution and make copyright last forever.
What you don't see on this list are any European organisations asking the USA to match their own copyright durations.
1. Wait 5-10 years to see how others do it, then follow their path
2. Line up some copyright lawyers and maybe EFF etc
3. Defeat someone smaller, someone with 1/100 the clout of Disney and build a case law there
If you use it in a way that violates copyright, or in a way that a lawyer responsible for the IP thinks violates copyright then you can hire a lawyer to try to convince someone that your use of the IP doesn't violate copyright.
=)
Heads they win. Tails you lose.
Disney didn’t mind paying for the rights to adapt copyrighted material, like they did for Bambi, Dumbo, Peter Pan etc.
Because the copyright holders at the time were much smaller and less astute.
You try to get the rights for a TV show based on Frozen. Disney will probably not sell those rights to you at any price.
You think Disney IP should be free for all to use? Just remember this would go both ways - Disney could take the work of any independent author or artist and use freely without crediting.
At least the older stuff should become public domain.
They're trying to have their cake and eat it.
It's not normal or sane or good for society that things created 70+ years ago are still locked up in a corporate vault.
You just can’t use the exact character design of Anna and Elsa, but why would you want that anyway?
Certainly things more valuable to humanity (like land or real estate) is loced up in corporate vaults.
Your conflict is self-created and can also be undone.
I think it is ridiculous to think it might happen. It is like asking Apple to sell you M3 chips. They will use it on their own devices in the same way that Disney could make that TV show end-to-end for years, if not a lifetime. Think in the Star Wars brand.
Simultaneously they partner with Lego and other companies for franchising.
While I understand where you are coming from, it's obvious they would. They are a public company, responsible to the shareholders, yadda, yadda. It's another question whether it would make economical sense to pay such a price which would likely run into the tens of billions.
Even now, book adaptations into movies, series, etc happen all the time. Even Disney still lets various companies (including freaking Warner Bros) make video games of its various IPs.
The dynamic here isn't about being astute, it's about well-positioned for a given market. If Disney thought a Frozen show was a good idea, they'd produce it themselves (like they did for Tangled and various others). For markets where they don't have / don't want to have an internal talent pool (RIP LucasArts), they rent the license.
Disney bought the rights to Peter Pan from Paramount Pictures in 1938. At the time, Disney was a small fraction of the size of Paramount Pictures.
The original author of Bambi sold the motion picture rights to his film in 1936 for $1000 USD to a film producer...Disney was not the purchaser. Disney bought those rights from the producer for an undisclosed amount.
Disney bought the rights to Dumbo for $1000 plus royalties on the book sales. (At the time Dumbo was a very simple, very short story intended as promotional content for a new type of book called a "roll-a-book". It sold very few copies, and would have been a historical footnote if not for the unexpected success of the film.)
Disney bought the rights to Winnie the Pooh and paid royalties to the Milne family for decades, before shelling out $350 million to buy the entire rights in 2001. (Disney originally paid $1000 for the merchandising rights to the merchandising rights holder, it's not clear how much they paid for the film rights but given that the Pooh books were a huge commercial success, estimates are somewhere between $100k and $1million in 195x dollars.)
Using public domain stories enabled others to easily produce cheap knockoffs legally, and they did. So, for instance you you had direct-to-video, cheaply made versions of "Cinderella" which were an attempt to trick unsuspecting buyers who really wanted the Disney version.
When some work is still under copyright, that makes is a higher bar for knockoff producers than for Disney. Disney has more money, more and better lawyers, and is known for the quality of its work, which makes it in a better position to negotiate the rights.
The public domain works like Snow White and Cinderella were hundreds of years old when Disney made their versions, and they have no issues with others making their own versions of these fairy tales (because there is only one "Disney's Snow White").
And Disney is perfectly fine with paying for the rights to IP to adapt into films, as with Alice in Wonderland, the MCU, etc.
Actually, Disney is incredibly aggressive legally when it comes to other people trying to use Germanic fairy tales in their own works, even if it's completely independent from Disney and there's no risk of confusion.
They've been able to shut down a lot of stuff that's almost certainly legal under the law, simply because nobody is able to take on a protracted legal fight with the megacorp.
Citation needed.
In the past decade there have been more than a dozen movies based on the same Germanic fairy tales that Disney has exploited. Disney didn't sue over any of them.
Disney didn't even sue over Winnie the Pooh: Blood and Honey, and that is based on the version of Winnie the Pooh that they actually own. (The original stories and characters are now in the public domain though.)
Let's mention that these stories were in public domain for literal centuries.
I don't know where the limits of Steamboat Willie end, but I bet an awful lot of people are going to read headlines like "Disney about to lose Mickey Mouse copyright" and find themselves in very hot water very quickly.
I don't even really know why Disney bothered to go to such lengths for a short film that makes them no money. But I suspect it saves the legal department money compared to giving a lot of very expensive lessons on the difference between copyright and trademark.
The US has the copyright terms they have is because they were obligated to match the EU's by international treaty (where copyright is, in most cases, the end of the year 70 years after the author dies). The EU adopted that term to harmonise it's copyright with that of Germany.
Disney certainly didn't object to a copyright extension in the US, but they weren't the driving force behind it, trade deals with the EU were, and the EU is not going to allow the US to reduce their term in a million years (and nor are the many other international signatories who have harmonised their term at a similar period since).
Nope.
"We have to align to the more generous terms in territory X" is almost always one rationale offered for expansions, everywhere. There is no such treaty requirement. What the US is obligated to do by treaty is give everybody else's copyrights the same benefits their own get in their country.
The reason this rationale is used is that it's cover to grow copyright indefinitely because you insist on "aligning" only with other people's more favourable terms, but of course in the process you also uprate the places where your terms were already most favourable, thus ensuring other countries with the same practice will likewise re-align, so this ping-pongs forever.
Only in 1988 did the USA accede to the Berne Convention, and in 1990 acceded to the WTO TRIPS agreement. The EU didn't exist until 1993 (the EEC preceeded it) and the EU didn't try harmonising copyright law even among its own member states until 1993. The EU and USA don't have any trade deals, their last attempt (TTIP) went down in flames.
And then came the Sonny Bono Copyright Term Extension Act
In 1998, the USA extended its copyright terms - not because any international convention or trade agreement required them to. Again, the timing was because the oldest works still enjoying copyright protection would have expired in 1998. As Disney was openly lobbying Congress, and Mickey was due to enter the public domain in 1999, it becomes fairly clear why the USA did this. Nothing to do with Europe.
OpenAI pushing for regulation in AI, they benefiting from external research etc
- The actual drawings
- The animations
- The story lines
and also shows you what to do to prevent other people from doing the same so that you get a monopoly.
Disney didn't mind paying for the rights if they wanted to use material still under copyright, like they did for Bambi or Dumbo or many others.
I was curious so I researched some more. The story of the founding of the Mali Empire is often told through the epic of Sundiata - born frail and unable to walk, Sundiata faced scorn from his half-brothers in the Mandinka kingdom. Guided by a prophetic destiny, Sundiata and his mother were exiled after the death of his father. During his exile, Sundiata transformed into a formidable leader, forming alliances and gathering supporters. He returned to the kingdom, defeated the oppressive forces and established the Mali Empire
The same applies to the King James Bible where the UK Crown (and Cambridge Press) hold the copyright to it, where you can't publish that text without permission.
Also, the recent bipartisan bill to keep the government open literally did the opposite of robbing the public.
Here's a good one to check your insight: the so-called "Bipartisan Safer Communities Act." You've got Republicans helping to pass gun-control legislation of all things during the Biden administration! That's certainly a red flag if I ever saw one. So what is the way this law is being used to fleece people?
It's a good example, but (to me) for the opposite reason of what you implied.
Let's see if gun violence and mass shootings stats will actually decrease in 5 or 10 years from now then.
Additionally the current governor of Florida (who pushed forwards the bill) is running for the republican nomination for president so its made a pretty big splash regarding the “culture wars”
Realistically, this might be a primary issue for a few key Republican seats elsewhere though. The question is whether “owning the libs” via acting against what Disney wants or “owning the libs” via acting against what Google want is more compelling to those people.
For others who don't follow American drama, apparently it's legislation[1] passed banning discussion on sexual orientation or gender identity from kinder to grade 3 (I believe 5-9 years old range in the US educational system).
Apparently Disney opposed it and has some sort of significant resort there, so the government fired back by taking back ownership of the land that the resort is on, which they appeared to have unfettered control over to the extent of being their own unaccountable government[2].
1. https://en.wikipedia.org/wiki/Florida_Parental_Rights_in_Edu...
2. https://en.wikipedia.org/wiki/Central_Florida_Tourism_Oversi...
The first one was when the Copyright Act of 1909 was replaced with the Copyright Act of 1976. Between 1909 and 1976 there had been a lot of changes in technology, such as the rise of radio, TV, movies, and computers, and it was widely agreed that the 1909 Act was not up to handling it. Also international distribution was more common, and most thought the US needed its copyright law to be more compatible with the rest of the world. The 1976 Act started that harmonization (although it left a lot of it for the Berne Implementation Act of 1988).
The second was the Copyright Term Extension Act of 1998. That one Disney was a significant force in its creation and passing.
The public domain and copyright expiry is one more set of requirements for SV code to have to implement and support. It's way easier if the owner stays for ever, and that there is a single owner
And that's not even counting the relevance of organizations like the Internet Archive, which was not nearly as meaningful in 1998.
> The public domain and copyright expiry is one more set of requirements for SV code to have to implement and support. It's way easier if the owner stays for ever, and that there is a single owner
And this makes no sense. Applications are not required to recognize public domain content and make it unrestricted when copyright expires. Having it remain under ownership forever doesn't make anything easier. And, in fact, copyrights having a single, simple owner is just... not the case. So to whatever extent there is a need to keep track of owners, copyright expiration only makes things easier (because if a work is in the public domain, you can no longer screw it up).
I love your choice of words. These copyright monopolists are robbing and defrauding us of our rights. Literal robber barons.
The social contract was we'd pretend their stuff wasn't trivially copyable so they could make some money and then the works would enter the public domain. They have repeatedly failed to keep up their ends of the bargain while making fortunes off of government enabled monopolies on information. Therefore we should not be obligated to keep honoring their monopolies either.
They seem to have given up on making copyright law even more absurd, there's no public support for it, instead they seem to be attempting to use trademark law to keep control over their characters (which only requires you to keep using and defending the trademark)
Notice how they use a clip from Steamboat Willie as the intro logo for Walt Disney Animation Studios, this keeps that design of Mickey as an active trademark of Disney, and they could sue anyone using it for trademark confusion. ("Mickey is the logo for Walt Disney Animation Studios, anyone else using it might confuse consumers into thinking they are Walt Disney Animation Studios and must be stopped!")
p.s. make sure to exfiltrate everything of value from your attached Google account before you hit Upload.
For those that don’t know, this is based off an often-abused tactic: take the original music of someone who has not registered it and register it instead of them. Once done, they file copyright strikes and/or file to have the creator’s monetization funds deposited in to the abuser’s account since the abuser is the “rightful owner”.
Whether this applies to a Blu‐Ray rip, I will not attempt to discern.
The recordings of the classical music pieces are under the copyright.
There was a good article about there at [probably] TorrentFreaks.
Looking at it another way, an uncreative recording of a classical performance will be copyrighted for a period of time, but after it expires, a recording of the recording won’t add any further copyright. It’s a bit like how a photograph of a public domain painting is uncopyrightable, but a new painting based on the painting might be copyrightable.
There's little recourse for false claims, so they'll probably do it anyway, and since it's the claimant that gets to deny your appeals, there won't be much you can do unless you can create enough publicity about it on social media (although I guess doing that to get attention could be enough reason to do it!)
The law wasn't meant to extend protections based on "effort", but based on time, - for reasons of enriching the public domain and general culture.
Also Disney isn't a person, it's a company, and as such it put zero effort. People working at Disney put the effort, including many people fired, discriminated, compensated badly, and generally fucked over by Disney.