How, exactly, did Disney "Kill Copyright?"

Great Debates
41

No. Kendall Jackson is wrong. I said exactly the opposite.

The OP asked about the case against Disney. I said that the case against Disney is based on a basic and major misunderstanding of the difference between copyright and trademark.

Copyright puts expression into the public domain. Steamboat Willie is expression. Once its copyright expires, anybody can put it out on DVD or magic eight balls, charge any price they like, and keep all of the profits without asking Disney for the time of day.

Trademark is based on images. Even if Steamboat Willie and all the other early Disney cartoons fall into the public domain, nobody can use Mickey Mouse’s trademarked name or image in a new set of cartoons without permission from Disney.

Trademark and copyright are distinct sets of protections. They may overlap in their areas of coverage but they do different things and have different consequences.

42

I see now, it’s true, you did say exactly the opposite when you were talking to gaffa.

But then you went and flatly contradicted yourself later when you were talking with me.

SBW off-limits, as long as the rodent is trademarked. Heh. I guess that clears that up. You were probably thrown off trying to respond to my rather ugly quote.

Well, jolly good show, everyone. Always tip your waitress.

43

So, if I can sell a copy of it, can I sell a frame from it? Can I sell a drawing of a frame from it? Can I remix it and sell that?
What can I do with a trademarked character in a production out of copyright?

44

Note: This appears to have nothing to do with selling the item, but it does suggest it’s reasonably legal to remix things and not sell them, but offer them online.
http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/

45

I’ll try to clear a few things up here, since intellectual property was one of my favorite subjects in law school. I’m a little rusty, but here goes:

Trademark is, at its purest form, about protecting the marketplace and the consumer. That is, the purpose of trademark law is to ensure that a company that produces a good has a unique, identifiable “mark” such that a consumer can easily identify the source of a good, i.e. who produced it. In other words, if you buy Kellogg’s Raisin Bran, you can rest assured that it was produced by the Kellogg’s company.

Lately (and by that I mean “in the last century or so”) it has become a hot property issue for companies as well, because very popular products tend to spawn imitators who produce cheap knock-off goods, and the companies that make “the good stuff” want to be sure that they stand out in the marketplace. To that end, they’ll stomp on anyone who uses their mark in an attempt to trick or confuse anyone into believing that a product produced by company B was in fact made by company A. In a nutshell, trademark is about preventing marketplace confusion.

So, when “Steamboat Willie” enters the public domain, you’ll be able to freely copy and sell your version of the cartoon, assuming you can find buyers for something that can be freely copied by anyone (this is why Penguin’s classics go for about half the cost of a modern novel). Re-edit it if you want, move stuff around, whatever strikes your fancy. You may NOT, however, use the image or name of Mickey Mouse to market your goods, because the Disney company still owns trademarks on those, which means they have the exclusive right to sell goods with Mickey’s name and image on it. So, you’ll have to be very selective with what you put on your DVD packaging.

So, you see? It’s all about marketing. Selling it, or a portion of it, or whatever you want, is perfectly legal, since it’s in the public domain and belongs to everyone. But you can’t offer it for sale in conjunction with the Mickey Mouse name or image; the right to do that belongs to Disney.

46

I’ve been following this thread for a while, and every time I try to respond, I end up writing a book. What this discussion is boiling down to, and what Max Torque has described in the most remedial form is copyright versus trademark dilution (which has been briefly discussed up thread). To find a nice little article on what I’m talking about, with brief technical mechanics of the laws involved, see this article on Matt Drudge vs. K Street. Even though this is what I studied in law school, AFAICT, there is no ruling on this subject, and I disagree with the conclusion of the article.

In my opinion, all of this controversy stems from Trademark Dilution Revision Act (2006). Note that there are fair use provisions in the act, but I don’t think they have been properly tested. IMO, the TDRA takes focus away from the original intent of tms, which is to protect consumers, and provides the impetus for business to bring forth suit. Granted, there is more emphasis on “famousness” of the mark, but with the concept of niche fame, the fair use balance, at least statutorily, is somewhat lacking.