A few years ago, Ruben Bolling teased us with the news of Mickey Mouse’s upcoming copyright expiration and its consequences with this .
Today, he seems to have confimed this (the link is “premium” content but you can gain access by agreeing to look at an ad). So is it true? Is the holy grail of copyrighted cartoon characters now in public domain? Mind you that’s not the most recent incarnation of Mickey in the strip (ditto for Superman, Bugs Bunny, and Woody Woodpecker), but that’s still him. So can I really make a movie portraying Mickey Mouse as a serial killer/heroin addict without worrying about Walt’s corpse reanimating and suing me?
The SCOTUS recently ruled on the Eldred v. Ashcroft case. This case was brought trying to strike down the copyright extension act which retroactively extended copyrights and protected Mickey for another 20 years. The suit failed and copyrights remain effectively perpetual.
<GD>As long as Disney makes money on Mickey and Congress makes money on Disney, copyrights will never expire.</GD>
Fudge. I guess it was a stupid question since the comic deals with that very ruling, but how did Bolling get away with using those characters? I didn’t see any acknowlegements anywhere and I doubt that the corporations lend him the use of them.
Don’t blame Disney. The copyright law extension didn’t make the slightest difference to them. Mickey is trademarked – and that never expires.
Further, Disney also has a ruling in place saying that if you use public domain images of the Mouse, you are infringing on their trademark: some of the Disney newspaper comic strips went into the public domain, but when someone published them, they were shut down due to trademark violations.
If you want to blame someone for the increase in the term of copyright, blame Adolph Hitler. When “Mein Kampf” was due to go into the public domain (about 1995), the state of Bavaria, which holds the copyright, wanted to prevent PD copies of it from flooding Germany, so they asked the German government to extend the time (in retrospect, it would have been better if they had handled it the way the UK handled “Peter Pan” – pass a law saying the copyright does not expire). Since the German law was expanded, other EU nations were required to honor the term, as did any signatories to the Berne Convention (such as the U.S.). Granted, the U.S. doesn’t honor all of the Berne Convention, and Disney was probably quite happy that the law was passed as backup to their trademark protection, but under international law, the U.S. was expected to increase its copyright law to conform to Berne. So blame Adolf, not Walt.
But once Mickey’s in the PD, Disney still controls it, and the trademark protection is a considerably bigger club than copyright.
BTW, Bolling was able to use the image because it was partly obscured. That, and there is a bit of leeway for satire/parody, even in trademark law.
BTW, the copyright payment scheme for works over 50 years old mentioned in the Times article is one of the scummiest ideas ever. It’s an unfair, regressive tax on the artist. It isn’t just big corporations like Disney that have valuable copyrights; it’s small individual authors and artists whose royalties are a big part of their income. It’s just plain extortion to say, “pay up or lose your chance at getting paid for your hard work.”
There are still fair-use exceptions to copyrights which permit the use of copyrighted material without permission in educational use, review, satire, etc. It looks like his work falls pretty squarely under the satire exceptions but Disney could still make him prove his case in court if they wanted to make him suffer for his art.
There are lots of groups trying to eliminate fair use right now, but they are mostly concentrating on making it impossible to actually use the work (i.e. digital rights management) rather than changing the law to prevent fair use. I don’t think any of the groups on that side of the issue would actually try to outlaw fair use because they know that would galvanize opposition. As it is, too many people just don’t care and the media giants can portray the rights advocates like Lessig as extremists who want to destroy intellectual property.
On preview I see RealityChuck’s comments. Do you have a cite for the trademark, say a registration number? I’m not saying you’re wrong, but Disney was a huge proponent of the copyright extension and almost all of the media coverage of the Eldred case specifically cited the Mickey situation. Of course, that could be a factoid created and perpetuated by the media with no basis in truth, so I’d like to find out before I perpetuate it any more.
The difference between trademark and copyright in the Disney case is the difference between a particular cartoon entering the public domain and free right to use that character in newly created cartoons and other works.
Therefore, if the copyright extension had not passed, then anyone would have been able to show “Steamboat Willie” (and later all other cartoons as they passed into the public domain) without getting permission from or paying royalties to Disney. This is a major issue both for the monetary aspects and for Disney’s being able to control the showing of its products.
But the character of Mickey Mouse is trademarked. Nobody but Disney can use the likeness for any commercial purpose. This will remain true until the Diney corporation goes out of business or gives up the rights. This has nothing to do with whether any individual cartoon can be shown.
BTW, the consensus of lawyers that I’ve read on the Eldred case is that SCOTUS had no real alternative. The Constitution allows Congress to set “limited times” for copyright protection. 95 years is not perpetuity. Whether it is the right amount of time is a separate issue, but not one for SCOTUS to decide.
Sure. Look it up at the Trademark Electronic Search Service. There are 19 different types of trademarks listed, all with Disney as the owner. There are also trademarks for Donald Duck, Goofy, Minnie Mouse, and Pinocchio (Disney’s image, not the story itself).
Here is the data, in any case (the serial number is on the left):
IIRC, articles written at the time the extension was passed mentioned that the impetus came, not from Disney, but from places like the George Gershwin estate. Gershwin’s songs were falling into PD and they didn’t want to lose their entire source of income. Plus, you can’t trademark a song. I wouldn’t be surprised if other music publishers (like the Rodgers and Hammerstein Organization) pushed for it, too.
I suspect Disney was blamed because of their reputation of going aggressively against trademark infringement. It was easy to paint them as the bad guys, but, though they certainly favored the legislation, it was not necessary to protect their work.
Not to protect Mickey Mouse, but it was necessary to protect Steamboat Willie. The trademark wouldn’t have prevented people from distributing the cartoon, any more than a trademark on “Reese’s Pieces” would prevent people from distributing E.T.
I think the bigger issue that the SCOTUS faced was whether the term could still be considered “limited” if it could be extended retroactively…
*Originally posted by Mr2001 *
**Not to protect Mickey Mouse, but it was necessary to protect Steamboat Willie. The trademark wouldn’t have prevented people from distributing the cartoon, any more than a trademark on “Reese’s Pieces” would prevent people from distributing E.T.
Yes, it would. A few years back, Disney sued to prevent the distribution of a compilation of Mickey Mouse newspaper comic strips that had gone into the public domain. Disney argued that, though the strips were public domain, the use of Mickey without permission was a violation of their trademark. The judge agreed. Since there had been no precedent for the situation, the publisher was allowed to sell what they had printed, but could not print more.
However, the ruling now sets a legal precedent that allows Disney to get an injunction to stop anyone from trying to distribute their noncopyrighted works.
BTW, the Reese’s Pieces analogy is a poor one; E.T. had permission to use their trademark.
You’re misinterpreting the cartoon, pizzabrat. Anton Scalia is punching the Public Domain Guy and freeing the Copyrighted Characters from his clutches, thereby making copyrights once again protected for another 20 years.
IANAL, but I read the Salon interview you cited and found it less than convincing. (It’s also a mistake to judge the value of a case by going to the defendents for explanation rather than someone a touch less biased.)
First, what they really wanted was for SCOTUS to decide social policy, which just wasn’t going to happen with this case.
Second, their argument against retroactively extending copyright
is somewhat misleading. At times they talk as if works that had entered the public domain were now being put back into copyright. No, it is that works that are currently in copyright will stay under copyright longer. No public domain works have been taken out of the public domain.
He also says:
Does he really mean to say that those people are now going, “damn, I hate the idea that my works are protected for a longer period of time. Cut off my protection early please. I want to stop my control over my works.” If so, he needs to product those people. For that matter, the change in copyright length to those books really took place in the 1978 Copyright Law so it’s a little late to be noticing it now.
Boiled down, their real beef is that they thought that works would enter the public domain at a certain time and now they will enter the public domain at a later time. There is a real public policy debate around this issue - and I know for certain that it has been and is being actively debated. But it was folly to think that the this Supreme Court would enter into that debate.
Ask just about any writer, director or actor of a movie made in the 50s or earlier and they will tell you “Yes, put it in the public domain. I haven’t got a red cent from it in years.”
Ask the remaining cast of “Gilligan’s Island”. Same response. They (and the writers, etc.) stopped getting money after the 3rd rerun. Ditto other TV shows of that era.
Ask Tony Orlando if he would like his song “Tie A Yellow Ribbon” to be in the public domain and he would say “Yes.” He hasn’t performed the song in years because of a dispute with the corporation that owns the rights (but didn’t write the song).
Ask the descendents of the women who wrote “Happy Birthday” if they are sad that it’s going to be in the public domain soon. Of course not, no one in the family has gotten a cent for it in years.
The TV and movie industry are incredibly abusive in keeping the IP creators from getting money from their work. They make the RIAA look like a charity by comparison.
Strangely, the book publishing industry has generally avoided these problems. So with that exception, extremely few of the actual IP creators are benefitting from the recent extensions. (Umm, there’s been more than one folks.)
Also, here is another abuse that has happened: Joe Shmoe’s grandkids magically maintained the copyright of grampa’s songs. The copyrights were about to expire. SleazeBall Inc. comes along and offers to buy the copyrights for a token sum. The kids say “sure, a little money for something that’s going PD next year, why not?” Then the Bono bill passes and the kids are screwed.
Life+70 years is a ridiculous length of time, esp. when the person whose “life” it is was forced to give up his rights a 100 years before the copyright expires.
Having copyrights and patents was a highly debated topic in the Constitutional Convention. Many thought they were a bad idea. The language makes it explicitly clear that such rights are for a short time only and then only to stimulate new stuff. The ladies who wrote “Happy Birthday” have not been stimulated to write new songs for a long, long, long time.
The SCOTUS had an opportunity to limit this abuse and (as usual) failed.