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Comment by hamdingers | Hacker News Reader

Am I wrong in thinking this makes more sense than decades/centuries long copyrights?

Let the copyright on a work expire so I can share my copy of Toy Story with my friends, but retain a trademark on the characters so that I can't go around making new Toy Story movies (or theme parks or pajamas).

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But why shouldn't you be able to make a new Toy Story movie 100 years, give or take, after the original?

Depends, is there still a Disney making official Toy Story products that your products could be confused with? If not, fair game.

Yes

But ten years

A decade is enough

IP is a trade off, and the balance is wonky

This isn't a copyright case, it's a trademark case.

The issue is that some of the specific expressions of the elements may be extremely distinctive, and trademarked by a person (or company) for commercial use. In those situations, you can still use the element, but not the specific expression of that element that is trademarked because that specific expression is being used by another person for ongoing commercial activities. However, unlike copyright, trademarks die if they are not kept in relatively continuous commercial use, generally 3 years after last use.

For example: the Winnie the Pooh horror movie. The specific version of Winnie the Pooh in the animated films is trademarked by Disney. The version that is a serial killer wearing a costume is not. Disney didn't bother to try and stop the film. So, if you wanted to make versions of the Toy Story character that don't look like the animated versions, you'd be in the clear once the copyright expires.

But the Morgan and Morgan ad is different. They're attempting to use trademarked characters for their own commercial purposes. (And there's no clear parody of Steamboat Willie; in the original cartoon he causes a bunch of accidents that harm other characters including the character that would become Minnie, so what is the parody here?) Unless they've made a sizable donation to the judge's bank account, they have no chance of winning their motion as there is over a century of case law against. OTOH, given the current administration and the openness of his appointees to disregarding centuries of existing law, it's very possible that Morgan and Morgan expects to win this case.

As an aside, Morgan and Morgan is generally regarded as the worst of the large personal injury law firms. In cases in which other PI firms sued the same defendants, the M&M plaintiffs got the smallest settlements, because M&M settles as early in the case as possible (usually before discovery) as their business model is based on quick, cheap settlements and they'll put heavy pressure on clients to accept the low-ball offers to avoid having to spend the time or labor costs of going through discovery. There are many complaints of M&M pressuring their own clients, fraudulent billing, withheld settlements, dropped cases, and bait-and-switch fees. They're the most sanctioned law firm in the country...by a lot...

This is what's keeping me from working on my own "John Carter of Mars" game. The books (at least the first 5-6) are public domain, but Edgar Rice Burroughs, inc has John Carter, Dejah Thoris, etc., all trademarked, and can continue that indefinitely. I don't think it would be a slam dunk legal case, but it's enough to discourage me from trying (I've heard they are litigious).

The Winnie the Pooh books by A. A. Milne are no longer under copyright, that copyright expired. However, the Disney animations of Winnie the Pooh are still under copyright, and they have a distinctive style compared to the illustrations in the books. It's mainly about copyright, not trademarks.

Yes they is also true but the point of the comment was the M&M/Disney case is a trademark issue.

All things considered, I prefer the original illustrations myself.

> retain a trademark on the characters so that I can't go around making new Toy Story movies

Here's a quick thought experiment: Suppose I create a small movie company based on another character also in the public domain, and I successfully receive a trademark for my logo, which is... Jesus Christ.

Does/Should that give me control over anyone selling or distributing other books, movies, pictures, and songs depicting Jesus?

In a sane world, the answer is "heck no", because trademarks are really about stopping fraud, where someone else is trying to leech off my good reputation by confusing people into doing business with them instead.

Now, one might plausibly argue that Jesus is "generic" and thus the original trademark was wrongly granted, but the same principles apply even if I rebrand under just one of the less-popular characters or symbols. ("As the owner Pontius Pilate Productions, your story violates my trademark!")

You can't get the trademark on the parts that are in common use, and you can't the trademark in a way that harms language. You can get protection over stuff that you invented and doesn't limit how people talk to each other.

On this case specifically, you can't make a Mickey Mouse cartoon in a way that looks like it came from Disney. That's all that the trademark protects.

There's not much point to the thought exercise. You wouldn't get the trademark in the first place.

> There's not much point to the thought exercise. You wouldn't get the trademark in the first place.

My brother in Jesus Christ paperwork, even now there are already 236 active and formally-registered trademarks which have been granted involving "Jesus Christ", 18 if you limit it to "wordmarks." [0]

Also, as per the concurrent(?) edited-in last paragraph, the basic idea remains even if the scope is, er, less-grandiose.

[0] https://tmsearch.uspto.gov/search/

USPTO search reveals...0 trademarks of "Jesus Christ" because its not trademarkable.

There are a number of longer phrases which include the phrase "Jesus Christ" that are trademarked (either as logos or as phrases), but that is a very different thing.

I'm not sure how you got from "the example logo contains Jesus Christ" to "the company name must be this exact string."

But your example just proves that the trademark avenue is not a genuine moat for Disney. If dozens of trademarks have been given for logos containing Jesus Christ, then there can be dozens of logos containing Steamboat Willie.

You can trademark a novel turn of phrase that includes historical figures, but not the actual names, as that falls under the "right of publicity" and protections against false endorsement.

So, you could start a new church and trademark "Terr's Church of Jesus Christ", as the trademark covers the organization, but you cannot trademark the name "Jesus Christ" itself.

> not the [historical figure] actual names, as that falls under the "right of publicity"

IANAL but I don't think it'd be blocked for that reason: "Right of publicity" is a per-state affair, where it exists it may not be posthumous, where it is posthumous it may not include historical figures, and even if it could apply, there's there's no credible estate/heir of Jesus Christ with standing.

... But I gotta admit it would be amusing to watch someone try to fill that role.

As an example, see Pirone v. MacMillan [0], where there was no posthumous "right of publicity" for Babe Ruth's daughter to draw upon. (At least, not back then.)

[0] https://law.justia.com/cases/federal/appellate-courts/F2/894...

Hence why I included the bit about false endorsement, which is a federal rule.

Notably, from your link:

> Therefore, a trademark is "not property in the ordinary sense," but only a word or symbol indicating the origin or source of a product.

> Although its registration is limited to the words "Babe Ruth," Pirone would have us read her rights in that word mark to include every photograph of Ruth ever taken. We decline to do so.

The product in question didn't use Babe Ruth's name in any way implying an endorsement or origination of the calendar; it merely included some pictures. The ruling determined that trademark does not apply here.

Pictures have been deemed eligible for copyright, but that's neither here nor there. The name "Jesus Christ" is not eligible for trademark.

> Hence why I included the bit about false endorsement, which is a federal rule.

That obviously can't apply to use of the name or imagery of Jesus Christ; there is a much more important federal rule that says it is everyone's God-given right to assert directly that they are endorsed by Jesus Christ.

(This comment is imbued with the divine grace of the Messiah.)

A person may assert their beliefs, but those beliefs do not extend to trademark law, most especially in the context of "sue everyone else who uses the name of a historical religious figure that I have decided to take for myself".

Your argument is gibberish. As I read your comments, you say that:

1. It isn't possible to trademark the name "Jesus Christ";

because

2. This might imply that your company is endorsed by Jesus Christ.

But that is clearly false. Those grounds are illegitimate; the government cannot take a position on whether you are or aren't endorsed by Jesus Christ.

There are no "false endorsement" concerns raised by the hypothetical trademark.

I’d rather a trademark approach that says you can use the characters but you can’t call it Toy Story, Disney, Pixar, etc.

With the copyright expired you can do more than share. You could make copies and then sell them.

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