Is there any precedent for Mickey Mouse going out of copyright?

[Acsenray]

@TYphoonSignal8

As I read it, the case is principally about false attribution of work (s43(a) of the Lanham Act and the VARA) and smacks around the head the idea of moral rights. (I acknowledge that a trademark functions as a badge of origin and that this is linked to the idea of false attribution of works, but the two causes of action are usually squarely demarcated - you can do one and not the other.)

I would have to ask for clarification here. Which actions are you saying are exclusive? Trademark infringement/false designation of origin and failure to attribute under VARA apply to different things, in the sense that trademark law and copyright law apply to different things. But I’m not sure exactly what you’re trying to say here.

lots of trade marks that consist of other things would loss the benefit of protection if copyright over-rode trademark rights. It can’t be that Mitsubishi, which created its three-diamond logo in the 1920s, would lose trademark rights in the logo because of an expiration of copyright in the logo. That would be a remarkable outcome that would cause havoc in the international advertising / branding industry.

Trademark law only preserves the exclusive use of the logo as a trademark. It can’t be used to prevent copying of a public domain work. Yes, that can result in some complicated situations in specific cases, but conceptually, it isn’t difficult at all.

Having a quick dig around, I found this article which on page 300 specifically talks about Mickey Mouse and how s43(a) of the Lanham Act should apply once (if) the copyright expires. http://www.law.nyu.edu/sites/default/files/ecm_pro_064631.pdf

This is what Landau says (granted, I haven’t yet had the time to read this article thoroughly):

Similarly, when the copyright to Mickey Mouse eventually expires, it should be a section 43(a) violation for one to make and sell merchandise with Mickey’s image.

On its fact, this sentence looks wrong to me. It should be a violation of Section 43(a) only if the image of Mickey Mouse is used in a way that misleads the consumer with regard to the origin of goods or services. In other words, a use in commerce under trademark law.

Err, will have to read it, sorry. I assume this is Conan Doyle v Klinger, which **Exapno Mapcase **refers to in his post. Kind of makes sense though, that the elements of the derivative works can still be protected even if the original works have evaporated.

@TYphoonSignal8

Of course you can sell an original version of Action Comics #1. You could also license it, encumber it, burn it (gasp!), or use it to line your bird cage (gasp!!).

The only thing you can’t do it copy it. Its all there in the word: copyright = right to copy. (There is more to copyright than that, particularly around secondary infringement, but we don’t need to go into that.)

I think you missed the point of Chronos’s post. It is about this very distinction.

By way of a patent analogy, Pfizer’s patent has expired on sildenafil citrate. Huzzah! Let’s all go and manufacture Viagra and make millions by way of unsolicited emails! But, oh, VIAGRA is US trademark registration 2162548 registered in 1998 and owned by Pfizer Inc. Boo. Guess we’ll have to call it Cialis instead. But, damn, CIALIS is US trademark registration 2724589 registered in 2003 by Eli Lilly and Company.

What’s that, you say? Lilly have a trademark registration for a generic version of an expired patent? Why, yes. As it is entitled to. The subject matter of the patent is in the public domain. They’re branding the drug in their own way, because Lilly can’t use the registered trademark VIAGRA to do it because otherwise Pfizer will sue them (again).

So, replicate public domain IP, but don’t use the registered trade mark to promote it.

This is not an analogous situation. Every drug approved by the F.D.A. has a generic name. Viagra is sildenafil citrate and Cialis is tadalifil. Generic drug makers are able to market the exact same goods without encountering the trademark problem. And the name of a drug is not as inherent to the making of a drug as names like “Superman” are inherent to names of characters and other elements of creative works.

Would anyone know to buy your Action Comics #1 replications if it did not have the word (or likeness) of Superman on the cover? Probably not. In which case, the word “SUPERMAN” is functioning as a trademark and your photocopy is an infringement.

This is exactly the complication that we have discussed in this thread and other similar threads. I don’t think it’s as simple as you lay it out. The Conan Doyle Estate holds at least two registered trademarks on “Sherlock Holmes” and likely has claims on numerous unregistered trademarks. That doesn’t stop Leslie Klinger from selling books that say “Sherlock Holmes” right on the cover, to indicate that the contents are stories that feature the public domain character Sherlock Holmes.

What this might mean, thinking about it, is that once (if) copyright runs out, people might sell copies of Action Comics #1 with covers which do not replicate any of DC Comics’ trademarks. Maybe the cover would read, “FEATURING A WELL KNOWN SUPERHERO!” (Except of course you can’t use the word “Superhero” either The “Superhero” Trademark: how the name of a genre came to be owned by DC and Marvel, and how they enforce it - World Comic Book Review .)

It seems to me that you are quite aware that U.S. courts are unlikely to interpret the intersection of copyright and trademark law in this very silly manner.

Or maybe it will mean that the Supreme Court affirms Dastar and so trademarks actually don’t go on forever notwithstanding what the legislation says.

Trademarks are potentially without any limit on their term of use, but they are not statutorily unassailable now. Even valid trademarks are limited in scope. And it seems to me very likely that when a Superman story enters the public domain, that anyone publishing that story will have some kind of right to label it with the name “Superman.”

The specific border that demarcates the separation between Warner Bros.’ trademark right in “Superman” and the right of a publisher of a public domain Superman story to truthfully label it as such will have to be negotiated, but I have no doubt that the courts will not require essential portions of a public domain version of Action Comics No. 1 to be whited out.

[Exapno_Mapcase]

TYphoonSignal8, your post #80 is more confusing than before.

Going back to Holmes, “there’s a nest of trademarks that surround the character” yet people have been allowed to reprint the books ever since they went into the public domain. Klinger’s win now allows derivative works to be written without licensing from the Doyle estate, even though merchandising is still controlled by trademark.

“If you can do a TV series or a film based on this famous character that’s now in the public domain, but you can’t sell the lunch box or the t-shirts or the action figures because there’s a nest of trademarks that surround the character, there’s a real challenge there,” said Duane Morris LLP partner Mark A. Fischer. …

“Although the argument was creative, copyright law and policy is clear: once a work enters the public domain, all private intellectual property rights are extinguished,” said James Sammataro, a partner with Stroock & Stroock & Lavan LLP. “You cannot resurrect characters that have fallen into the public domain through transformation.”

The obvious problem for authors and companies that want to use the character is that trademarks don’t have the time limit copyrights do, and the estate — formally the Conan Doyle Estate Ltd. — claims common law control of “Sherlock Holmes” as a mark with a priority date all the way back in 1891 for many, many goods and services.

According to U.S. Patent and Trademark Office documents, the estate claims rights to license the name for books, movies, computer games, board games, playing cards, “entertainment services,” chess sets, puppets, mugs, and other merchandise and services.

When *Action *#1 goes into the public domain in 2033 the same should apply to the comic. You seem to argue otherwise, but I can’t figure out what you’re basing that on.

[Chronos]

(in the hypothetical future world where the copyright has run out on Action Comics 1)

Yes, “Superman” is a badge of origin. And by putting that badge on my homemade copy of Action Comics 1, I’m asserting that the product originated with DC. Which is fine, because it’s true: That is in fact where the product originated.

By contrast, a non-Pfizer pharmaceutical company making its own sildenafil citrate cannot call it Viagra, because that would be a claim that the product originated with Pfizer, when it originated with some other company.

It may seem like I’m being inconsistent here, but I’m not, because Viagra and Action Comics #1 are two different kinds of products. For Action Comics #1, the value of the product is as a creative work. The company which produces the physical instantiation of that creative work, a printing company somewhere under contract with DC, is basically irrelevant. I suppose there might be a footnote somewhere on a publication-information page saying what that company was, or the company that manufactured the paper or the ink, and if so, those would need to be whited out. But the part that’s identified with DC is the creative work, and it’s still DC’s creative work.

By contrast, the company that manufactures the physical instantiation of sildenafil citrate does matter. That’s Pfizer, the owner of the Viagra trademark. Some other company making it is not the same product (it might, for instance, have different impurities), and so it’s a misuse of trademark to identify their product as Pfizer’s.

[DrDeth]

@Chronos

Nope. Patents expire after a maximum of 20 years, and while the duration of a patent has changed over history, it’s never been too far off of that.

Which kinda includes a "few decades’.

[DrDeth]

@TYphoonSignal8

DrDeth says:

The argument around this is twofold:

a. intellectual property monopolies are there to reward innovation and let others build upon them once the monopoly ends. You see this very clearly in patent law. You can also see it in derivative works like the motion picture “Shakespeare in Love”. This movie clearly draws heavily from Shakespeare. If copyright had an unlimited monopoly, then some company called “William Shakespeare LLC” would be out reaping royalties and disincentivising creative innovation.

b. creative works form part of our common cultural heritage. I can find HG Wells’ “The Time Machine” on the internet and read it for free. Or I can go into a bookshop and buy a copy for $15, instead of the $25 I pay for a *Harry Potter *novel. JK Rowling is absolutely entitled to spin money out of her hard work (and indeed, in many court decisions you see judges conflating labour, skill, and effort with copyright policy). But should her estate, or some company which has purchased the assets from her estate, be able to do that forever and thereby control written culture?

**

OK, back to my timesheets now.

However, there’s a rather large difference between a 400yr copyright and a 100 year.

Indeed, but as pointed out, the authors cut is rather less than $7 so your example is false. I think even in the case of Rowling it’s under $3.

[Chronos]

Quoth DrDeth:

Which kinda includes a "few decades’.

Yes, but it doesn’t generally include “for the rest of their lives”.

[TYphoonSignal8]

Well, I really asked for this didn’t I?

Back in touch when I have a spare hour…

[psiekier]

@TYphoonSignal8

Well, I really asked for this didn’t I?

This is the Straight Dope. Don’t you feel a sense of duty to lend your considerable knowledge on this topic in the fight against ignorance?

Since we’ve been on the topic of Superman, one could say that not doing so would be like the Justice League of America turning around and slowly walking away from a crime instead of helping.

[BigT]

What the guy is saying makes perfect sense to me. You can’t use the trademark in trade. The cover of a book is trade, and thus you can’t use the trademarked elements of the cover to sell a public domain book.

That sounds exactly like separating trademark and copyright. It would be the same as me copying the Coca Cola recipe (which cannot be copyrighted and any possible patent has run out) and then selling it with the Coca Cola trademark. I can’t do that.

Though I’d argue the way to do it would be to simply wrap the book in plastic, with something covering up the trademarked elements. Then there’s no issue with the inside of the book or the outside.

[TYphoonSignal8]

@psiekier

This is the Straight Dope. Don’t you feel a sense of duty to lend your considerable knowledge on this topic in the fight against ignorance?

Indeed I do, but my time sheet obligations usually only allow for single sentence Straight Dope interactions. I’ll get there as soon as I can.

[drewder]

I think it is important to note that Disney has been using a clip from steamboat willy as part of their logo at the beginning of their movies lately. I think partly this is being done in order to help establish steamboat willy as a trademark.

[Acsenray]

@drewder

I think it is important to note that Disney has been using a clip from steamboat willy as part of their logo at the beginning of their movies lately. I think partly this is being done in order to help establish steamboat willy as a trademark.

What a great hypothetical for a law school exam. Is there a link to this sequence I wonder?

[drewder]

@Acsenray

What a great hypothetical for a law school exam. Is there a link to this sequence I wonder?

Walt Disney Animation Studios | Intro | Logo | Full HD

[Acsenray]

Thanks! For my exam question I would add more Disney characters to the sequence.

[drewder]

@Acsenray

Thanks! For my exam question I would add more Disney characters to the sequence.

The funny thing is that as a result we get two Disney logos at the start of each movie.

[Trancephalic]

@drewder

The funny thing is that as a result we get two Disney logos at the start of each movie.

49 seconds of logos. ding!