Whoops. Sorry.
That is not… clearly true. A famous case here is Dastar Corp. v. Twentieth Century Fox Film Corp.. In short, trademark law cannot be used as an end-run around copyright term limits.
Now, exactly how this would play out in the case of Steamboat Willie would have to be decided in the courts. It seems clear that anyone could remix or resell the Steamboat Willie film at will. Could they create new videos based on the Mickey Mouse that appeared in them? If not, where exactly is the line between editing old works vs. new works? What about the slightly “evolved” version that appears today? I’m fairly certain that no one has an answer here as of yet.
I’m totally puzzled at what you think you mean by this. As I said, Steamboat Willie will go into the public domain. People can sell it, or do anything else they want with it. But they cannot indiscriminately use Mickey Mouse independently of that film. How does the Dastar case apply here?
I would think that the recent Sherlock Holmes decision is far more apt.
Almost every single thing about Mickey Mouse, other than his name and the fact that he is a mouse, was developed in later works that would still be under copyright. A character named Mickey Mouse could be used but would be limited to characteristics from Steamboat Willie. Moreover, the image of Mickey as it is now standard is itself trademarked and Disney is notably zealous in protecting that image.
I’m sure that people will try to stomp all over the line between fair and foul. And some interesting law will emerge from it. But it’s not like Mickey Mouse is the first character ever to be put in this situation. People just have a bug about Disney.
It applies because Disney–unlike the former copyright holders of Sherlock Holmes–is still producing works based on Mickey Mouse and is still protecting their trademark.
That this trademark exists isn’t enough to prevent people from using material derived from Steamboat Willie. That’s the fear that people bring up when they talk about Disney still having a trademark on Mickey–that Disney will have effectively extended their copyright term via their trademark. The courts saw through this ruse in the Dastar case, as they will presumably do in any future court cases involving Mickey Mouse. But the details may be different enough that the answer isn’t obvious.
I agree that this is the likely outcome of any case. That’s of little relief to Disney, though. Much of trademark law is to protect your brand, and Disney will lose that with the loss of Steamboat Willie.
Suppose someone releases a series of animated pornography featuring the Steamboat Willie version of Mickey Mouse. They can put his name and face on the cover. They obviously can’t say that it’s a Disney film, but they don’t have to explicitly deny it either.
This harms Disney’s wholesome brand, and they can’t use trademark law to fight it. That it’s a slightly older version of Mickey Mouse is not particularly relevant; the character is highly recognizable.
Correcting myself somewhat: it appears that the Doyle estate does still maintain a trademark on Sherlock Holmes. Obviously, this trademark is of almost no use to them at this point given the free use of the character. The court decision must have made heavy use of the Dastar result.
You can’t argue against the bounds of peoples’ ingenuity, so almost anything is possible. I still think Disney has an advantage. The visual images that connote Holmes were not developed by him. The deerstalker hat, the curved pipe, and the rest came from others who put Holmes into visual media. Disney controls all the images and doesn’t care about the content.
The people who will make and consume Steamboat Willie porn probably already exist and are making and viewing illegal Mickey Mouse porn under the radar. Poking their heads up and trying to promote legal Mickey Mouse porn will give Disney’s lawyers a target for every frame that doesn’t conform. Which, admittedly will call attention to it a la the Streisand effect. The net effect is unlikely, even so, to hurt Disney’s image among the vast majorities. If you don’t like Disney there are multiple reasons now and adding scumsucking ripoffs might even make the company the good guy and better supported. Everything works both ways.
Exapno has it right here. Dastar says you can’t use trademark law to restrict use of public domain content. The content in the case of Steamboat Willie is the Steamboat Willie film itself, not the Mickey Mouse character that Disney uses as a trademark.
I don’t think they will.
This is a matter for a different cause of action: trademark dilution. Disney can try to block uses of its trademark that might not be infringing but may tend to tarnish its famous trademark or blur the unique association between the trademark and the company.
Again, it’s not as if Steamboat Willie becoming public domain would be the first time a major heavily-marketed character has had material go into public domain. Some of the early Superman comics, and the radio series, are PD. Most of the Tarzan novels are public domain, as are the first couple John Carter novels, the original Buck Rogers novel, almost all of HP Lovecraft’s writings, Peter Pan, Night of the Living Dead (due to a loophole that existed at the time), the above-mentioned Sherlock Holmes, and any number of other works from the early 20th century and before, or as late as 1945 for works copyrighted by individuals rather than corporations. (Disney, of course, has pretty much built its entire franchise on adapting public domain stories.)
In theory, anyone could publish their own Superman comic based on the material in the public domain works. But what they wouldn’t have is the advertising budget, market presence, and influence that DC/Time Warner has, and if TW were to sue, they’d have a very hard time proving that their work wasn’t influenced by any aspect of the Superman material that remains in copyright, or that they weren’t attempting to infringe on DC’s brand by making use of Superman-related iconography that remains under trademark.
That’s not true, and not what Exapno said, either. The Steamboat Willie Mickey Mouse can be used elsewhere. Users have to very careful to only use characteristics that existed in that film (or in their own imagination), however.
Disney currently uses a modernized Mickey mouse as their trademark, but the characters are similar enough that Disney could wield trademark law against that version as well. Trademark law is fairly broad in what it counts as infringement, because it mainly deals with brand confusion.
They can certainly try. But the Dastar case shows that they (in principle) wouldn’t succeed. If that weren’t the case, then trademark would be acting as a kind of backdoor indefinite copyright.
Of course the threat of being sued by Disney does put a bit of a damper on things, regardless of their likelihood of success.
Oh, I agree that Disney wouldn’t suffer any actual harm. The question is whether they think they are suffering harm, or if they think the chances of harm (however minute) warrant a lawsuit.
We all know that Disney is zealous about protecting their trademarks. Obviously, Disney was well within their rights to make those demands against the daycares. But just as with Steamboat Willie, instinct tells us that the actual harm was nil. Hence, they simply could have granted a free license. That they didn’t perhaps tells us something of the way that Disney thinks about trademark.
My original point was just to state that trademark cannot act as an end run around copyright expiration. You can bet that Disney would have used that tool if it were available to them. That the future expiration of Steamboat Willie seems unlikely to do actual harm to Disney is almost irrelevant to the behavior of Disney’s lawyers.
I certainly agree. I think there’s mountains of case law waiting to be written here.
We’ve established that you can use characters from public domain works. And I think it’s fairly clear that you have to be careful about the new stuff.
But what about “obvious” changes to the character? I don’t know exactly what was in the public domain works of Superman, but for the sake of argument let’s say Lois Lane was there in her usual awkward romance guise. It seems obvious that a marriage storyline would develop at some point. These stories (as far as I can tell) only happened much later, under protected versions of Superman, but surely that couldn’t be used against users of the PD work that also wanted to do a marriage story.
It’s all very questionable, though, and I think it would have to come to court to get fleshed out. The relevant case law that does exist is pretty recent (Dastar in 2003, Klinger (Sherlock) in 2014). Seems likely that there is more to come.
I did not say that that the Steamboat Willie character cannot be used elsewhere. I said the Mickey Mouse character that Disney uses as its trademark will not become public domain when the Steamboat Willie film becomes public domain.
I think you’re making a lot of assumptions about how it would work here. It’s very clear to me that the two versions of the character are significantly different.
Again, Dastar says that the film itself can’t be protected under trademark law. The work at issue in that case was a documentary, so there was nothing else within the film that the former copyright holder could claim as a trademark.
The Disney situation is different. Disney will always have trademark rights in its trademarks so long as it continues to use them as trademarks. Regardless of what specific works of expression fall into the public domain, those who make use of those public domain works will still have to be careful not to infringe Disney’s trademark rights.
This situation is sufficiently different from the Dastar situation that it isn’t easy to say exactly where the line will be drawn between what will constitute legitimate use of a public domain creative work and what will constitute an infringement of Disney’s trademark.
Then we are in violent agreement.
They’re different, but not necessarily in the ways that matter for trademark law. The character is clearly Mickey Mouse; any child that only ever saw the new Mickey Mouse could still tell you that. Steamboat Willie doesn’t have Mickey’s distinctive voice, so that’s off the table. But the look is all there, from the ears to the widow’s peak to the shorts.
If someone made their own character, but copying those characteristics that old and new Mickey had in common, it would still be a slam-dunk case of trademark infringement.
I agree with this, which is why I’ve said that it would have to go to court to get fleshed out. Any user of the material would have to be very careful.
In AUS, PPCA has those rights to Happy Birthday, and the seedy joints each pay an annual fee that covers everything. It’s not one of the big costs, so most seedy businesses see it as no different to paying off the cops or the liquor licensing authority.
Didn’t the Berne Convention standardize copyright length to something approximating the US rule? Or am I way off?
Many people, unfortunately including some regular posters here, think the length of copyrights was standardized among the major countries by the 1886 Berne Convention.
But not so.
First, the Berne Convention says 50 years after the author’s death. Nothing about works-for-hire.
The 1998 US copyright extension act increased terms to life+70 for individuals and 120 (or 95, depending) for works-for-hire. It had been life+50 and 75 since 1976. The US actually signed the Berne Convention in 1989, a mere 103 years after it was first implemented elsewhere.
So, forget the Berne Convention in regard to recent copyright extensions.
Here’s a list of basic copyright lengths around the world. Most are life+50 or 70 for individuals. Rare are separate work-for-hire rules.
Major countries still at life+50 include Canada, China and Japan.
Also, the rules on what happens to older works when copyright terms are extended are all over the place.
Thanks.
The real issue is if the copyright is even valid considering it is a derivation of Good Morning to You which is in the public domain AND there is evidence that the song existed in its present form well before the copyright was claimed by a third party.
The U.S. lengthened copyright to match that of Europe (the European Union or the European Economic Community or the European Economic Area or some or all), which had lengthened copyright in 1995. It was not, as some regular posters here regularly say, a malicious pox against the citizenry by corporate lobbyists. Why, I bet you could find one saying so in this very thread.
Both the EU actions and the U.S. actions were in part to regularize copyright lengths for signatories to the Berne Convention. Not all members share these lengths and the changes were not compelled by Berne, earlier or then. But it really can’t be ignored as a starting point. What is imperative, however, is the mention of Europe.
The idea of a copyright was to balance the autho’s right to be paid for their work with the public’s right to be able to include the work as part of their culture. Back in the 19th century, copyrighted works were plays and written work like books. I believe the copyright was 25 years after the authors death. This made sense back in the days.
Imagine Mark Twain writing Tom Sawyer. The book was popular and sold well thanks to the copyright, no one published the book without his permission. Plus, he had a copyright on the characters. No one could write additional stories about his characters which allowed him to write Hucklberry Finn. By 25 years after Mark Twain’s death, there was little money left in the books. They could enter into the public domain and the American culture.
Imagine if he wrote Tom Sawyer today. There’s the book, the movie deal, the novelization of the movie, sequels, action figures, and of course, the constant rereleasing of the classic film. You have tv rights, movie rights, theme parks, and rights in each type of media in each country. Mr. Twain would want to make sure his chacpracters aren’t sullied by people putting them in places that hurt their value (Tom and Becky at Night - A New Adventure Awaits). Plus, to do much of this, Mr. Twain creates Twain Enterprises and gets other investors. The copyrights are now held by Twain Enterprises. And, those love able characters can make money for decades after Mr. Twain passes away.
So, what once had limited value for a few years now has value for eternity. What once had limited application (a book. A play) now has applications across a whole lot of media. How do we distinguish Micky Mouse - owned by a conglomerate with 90% of the works out there that will live life more like Mark Twain’s 19th century novels?
This is the current problem with copyrights. I can see Micky Mouse having a long, long copyright, but the 1970 hit song, “Little Arrows in the Air”? We need a way to recognize that a few works make money at a constant rate for years while most works don’t. This will stop works like Happy Birthday from being continuously renewed because Walt Disney Corporation wants to keep that Mickey Mouse money machine rolling.