Let us sit upon the ground and talk of copyrights and IP rights

[jknezek]

Personally I think there should be an exemption, on a very limited scale, for iconic copyrights for existing corporations that are still in use. How that legislation would be written, and how it could be as restrictive as possible, is something that is beyond my ability to grasp. However, I think it is fair for Disney to keep their iconic characters like Mickey, Minnie, Donald, Goofy, etc., protected. But only the characters that are commonly associated with the company and in current and frequent use by the company.

Like I said, don't ask me how to define that, but I think it's fair. Mickey really should belong to Disney so long as he is the face of the brand. Same with things like the Michelin Man, Jolly Green Giant, Bugs Bunny, Superman, etc. But if they were to fall out of common use, or the company disappears, then I think it should lapse and not be reclaimable.

 

[tlmadden73]

The problem is it isn't just Mickey. Sure big IPs might be helped by on going protection, but how much music from the 1930s can be bought in a store?

Ironically, it is Disney that shows why things should enter the public domain. The majority of their classic movies were based on stories from the public domain. They were able to take it and make it better.

If there was undieing copyright, someone would still own Shakespeare and the numerous offshoots of it wouldn't be possible. It wouldn't be taught as much in schools, et . Same with Beethoven, Bach, etc.

Copyright is supposed to end so others can improve on the previous work and so culture and history can't be removed from society. Just like patents. It has nothing to do with preventing companies from profitting.

All good points .. but IP is different from technological patents.

Unlike a technology patent that can give one company a monopoly on a vital item (like a drug). No one is "harmed" if a company maintains control of an IP. It's entertainment. If Disney has a monopoly of mouse cartoons, no one is harmed if they decide to jack of the price of their cartoons. The market will just stop watching the mouse.

If there were some descendant of Shakespeare or some company that bought the rights to Shakespeare -- if the market found the plays good enough -- we'd still have Shakespeare books and plays -- except that descendant or company would get the money.

Lord of the Rings is not in the public domain yet, --- yet the books have been printed and reprinted dozens of times .. there have been epic movies created and a TV coming out based on that IP. People have "improved" upon that previous work -- but just have to actually PAY someone for the right to do so.
Despite Lord of the Rings being not public domain .. I can find it freely in libraries.

So .. Lord of the Rings hasn't fallen away from culture or history despite its relative age.

 

[ShadeDK]

All good points .. but IP is different from technological patents.

Unlike a technology patent that can give one company a monopoly on a vital item (like a drug). No one is "harmed" if a company maintains control of an IP. It's entertainment. If Disney has a monopoly of mouse cartoons, no one is harmed if they decide to jack of the price of their cartoons. The market will just stop watching the mouse.

Intellectual property includes copyrights, patents and trademarks - and they're all based on the same principle: the government grants a limited monopoly for the use and exploitation of that IP in exchange for disclosure of that IP to the public. The elements required to establish each type of IP and the protections attached differ, but it all functions under the same idea. Also keep in mind that copyright is ridiculously easy to establish - all that it requires is a work of original authorship fixed in a tangible medium of expression. The sentences I just wrote? Copyrightable. The doodle a 7-year old makes in a notebook? Copyrightable. Make a catchy little jingle in the Garageband app on your phone while on that boring conference call? Copyrightable. Those are silly examples, but more importantly - lots of vital items like that patented drug may have copyrights - think medical texts, instructional videos, recorded classroom lectures, etc. Copyright extends far beyond just entertainment and media companies and cartoons.

Personally I think there should be an exemption, on a very limited scale, for iconic copyrights for existing corporations that are still in use. How that legislation would be written, and how it could be as restrictive as possible, is something that is beyond my ability to grasp. However, I think it is fair for Disney to keep their iconic characters like Mickey, Minnie, Donald, Goofy, etc., protected. But only the characters that are commonly associated with the company and in current and frequent use by the company.

Like I said, don't ask me how to define that, but I think it's fair. Mickey really should belong to Disney so long as he is the face of the brand. Same with things like the Michelin Man, Jolly Green Giant, Bugs Bunny, Superman, etc. But if they were to fall out of common use, or the company disappears, then I think it should lapse and not be reclaimable.

You may not realize it, but you've just described the basics of trademark protection - which generally protects registered brands in perpetuity so long as the brands remain in use in connection with the owner's business. The protection, scope and remedies available aren't the same as under copyright law (which is partly the reason why Disney and other companies would prefer protection under those laws instead of - or in addition to - trademark), but it's exactly where Disney will turn if the copyright ever ends.

 

[OSUZorba]

All good points .. but IP is different from technological patents.

Unlike a technology patent that can give one company a monopoly on a vital item (like a drug). No one is "harmed" if a company maintains control of an IP. It's entertainment. If Disney has a monopoly of mouse cartoons, no one is harmed if they decide to jack of the price of their cartoons. The market will just stop watching the mouse.

If there were some descendant of Shakespeare or some company that bought the rights to Shakespeare -- if the market found the plays good enough -- we'd still have Shakespeare books and plays -- except that descendant or company would get the money.

Lord of the Rings is not in the public domain yet, --- yet the books have been printed and reprinted dozens of times .. there have been epic movies created and a TV coming out based on that IP. People have "improved" upon that previous work -- but just have to actually PAY someone for the right to do so.
Despite Lord of the Rings being not public domain .. I can find it freely in libraries.

So .. Lord of the Rings hasn't fallen away from culture or history despite its relative age.

Or you can have IP like Snoopy/Peanuts that is well loved but the owners won't allow for modern adaptation. Lord of the Rings is also a huge IP, but there are tons of cartoons, music, books, etc that all completely abandoned by their owners, yet can't be published or improved upon by anyone else.

You assume if Shakespeare was owned the company would allow movies like Shakespeare in Love to be made, but Disney would never allow someone else to do that with their IP, why would Sakespeare, inc?

Further classics are read and studied in schools in part because they are free or very cheap to use. How many high school performances of Cats are there, vs Shakespeare?

In my field, there are also many old reference books that were very useful, but are no longer in print and impossible to buy. In many cases the copyright holder no longer exists, but the copyright is still in effect. Therefore, if you weren't around to buy it when it was in print you're out of luck.

 

[maltdizzy]

Personally I think there should be an exemption, on a very limited scale, for iconic copyrights for existing corporations that are still in use. How that legislation would be written, and how it could be as restrictive as possible, is something that is beyond my ability to grasp. However, I think it is fair for Disney to keep their iconic characters like Mickey, Minnie, Donald, Goofy, etc., protected. But only the characters that are commonly associated with the company and in current and frequent use by the company.

Like I said, don't ask me how to define that, but I think it's fair. Mickey really should belong to Disney so long as he is the face of the brand. Same with things like the Michelin Man, Jolly Green Giant, Bugs Bunny, Superman, etc. But if they were to fall out of common use, or the company disappears, then I think it should lapse and not be reclaimable.

There are already protections for all of that. All of those (including Mickey) are all protected as registered trademarks, which can be renewed indefinitely as long as the symbol is in use. No one will be able to sell Mickey Mouse merchandise just because it goes into public domain.

It’s the films and stories themselves which will go into public domain.

The idea behind copyright limits (and patents) is that the piece automatic is owned by society already belongs to the public, the creator is just given a time-frame to profit from it. This has been the belief for nearly 250 years. Keeping IP tied up in perpetually stifles creativity and culture on all fronts. All because people love Mickey Mouse?

 

[maltdizzy]

The sentences I just wrote? Copyrightable. The doodle a 7-year old makes in a notebook? Copyrightable. Make a catchy little jingle in the Garageband app on your phone while on that boring conference call? Copyrightable.

One correction. Not copyrightable, but copyrighted. All of these are automatically copyrighted upon creation. No filing necessary. Registering that copyright is purely for legal protection.

I would have to read the terms of service, but I believe the DIS now owns all the sentences in this thread for the 95 years.

 

[ShadeDK]

One correction. Not copyrightable, but copyrighted. All of these are automatically copyrighted upon creation. No filing necessary. Registering that copyright is purely for legal protection.

I would have to read the terms of service, but I believe the DIS now owns all the sentences in this thread for the 95 years.

Thanks and agreed - copyright adheres at the moment of fixation - my use of "copyrightable" concerned the act of registration, which is not necessary to create the copyright but is required for enforcement (and all those cool things like treble damages and injunctions and the like). One of the many, many wonderful ways IP laws can be confusing. Haven't read the terms of service either, but have few doubts that the DIS owns the rights - although if they can figure out a way to monetize all these posts into something other than ad revenue, more power to them. Although come to think of it, there's the occasional post that might make for a good t-shirt ....

 

[tlmadden73]

Or you can have IP like Snoopy/Peanuts that is well loved but the owners won't allow for modern adaptation. Lord of the Rings is also a huge IP, but there are tons of cartoons, music, books, etc that all completely abandoned by their owners, yet can't be published or improved upon by anyone else.

You assume if Shakespeare was owned the company would allow movies like Shakespeare in Love to be made, but Disney would never allow someone else to do that with their IP, why would Sakespeare, inc?

Further classics are read and studied in schools in part because they are free or very cheap to use. How many high school performances of Cats are there, vs Shakespeare?

In my field, there are also many old reference books that were very useful, but are no longer in print and impossible to buy. In many cases the copyright holder no longer exists, but the copyright is still in effect. Therefore, if you weren't around to buy it when it was in print you're out of luck.

This is an interesting debate for sure .. and there are people on both sides ..
I think it is just a different philosophy -- capitalistic versus socialistic society.
In general though, IP protection seems like a good thing, though it is a good debate is how long it should last.

Snoopy - so what? To me the owners have that right ... this isn't a socialist society where everything should be owned by the 'people'. If the owners decide to let Snoopy IP never be used again and stops re-releasing the TV specials - who is harmed? Their IP is harmed by letting it die on the vine and be forgotten, but in my opinion, that is their right.

Shakespeare in Love - that story could have just been written with another main character .. but the exact same premise. People are free to copy ideas and make them unique. Star Wars was inspired by Flash Gordon, Indiana Jones by the serials of the 50. So NEW ideas can still come from IP protected stuff.

Again .. the 'it wouldn't get used if it wasn't free' aspect ... not necessarily. Being 'free' just makes it that .. free. You are also assuming an owner of an IP wouldn't allow things to happen. The owner of "Cats" could easily just say - "high schools can put on a production of 'Cats' for free" to promote education (and to promote their IP), but they would charge a local theatre to do it because the would profit from it.
Microsoft and Apple give discounts on their protected products to students, because they see a value in that. Even though Linux is free, the market still buys Microsoft and Apple products.

So . .this debate will continue on and the politicians and businesses will figure it out - for better or for worse.

 

[Josh Hendy]

This is an interesting debate for sure .. and there are people on both sides ..
...snip...
Snoopy - so what? To me the owners have that right ... this isn't a socialist society where everything should be owned by the 'people'. If the owners decide to let Snoopy IP never be used again and stops re-releasing the TV specials - who is harmed? Their IP is harmed by letting it die on the vine and be forgotten, but in my opinion, that is their right.

Very interesting!

But it is socialist to insist that intellect ... meaning people's thoughts and expressions ... can be "owned". It is socialistic for an authority to insist that it can arbitrate, regulate and punish someone's thoughts and expressions based on supposed "ownership" tied to (alleged) originality of thought.

Each person owns their own thoughts. If they express their thoughts, it causes other people to have thoughts. Meaning the intellectual process of hearing, seeing, and remembering the original expression.

Once the 2nd person has a thought, even if it is a memory of someone else's expression of thoughts, it is now the 2nd person's thought and it is their property. If they express their thoughts, that is their expression, not the alleged "original" thinker.

Even if the 2nd person "exploits" the supposed intellectual property of the 1st person, for example by staging an unauthorized production of "You're a Good Man Charlie Brown", this is not taking away real, concrete property from the 1st person. The 2nd person has not removed money from the 1st person's bank accounts, or disrupted and shut down the 1st person's own production of their show.

The case for "intellectual property" is only for a hypothetical "stealing" of the 1st person's real property by claiming that, "this production of the Peanuts musical show in Smalltown, Ohio stole from the heirs of Charles Schultz because some of the people who saw the musical MIGHT HAVE otherwise paid to see the authorized show in NYC or purchased a DVD" or whatever. There are no concrete damages to the 1st person, only imaginary damages based on suppositions that are utterly unprovable.

There is enough real crime in the real world which involves real property ... do people really benefit from laws in which the government acts as enforcer for thought crimes which resulted in the alleged stealing of unproven, hypothetical income? I call that corporate socialism.

Sorry for going egghead on you all ... but as Disney fans and fans/supporters of entertainment and artistic expression this is a very important and worthwhile discussion ... IMHO.

 

[TiggerBouncy]

There are already protections for all of that. All of those (including Mickey) are all protected as registered trademarks, which can be renewed indefinitely as long as the symbol is in use. No one will be able to sell Mickey Mouse merchandise just because it goes into public domain.

Since we seem to have a few people on here who understand this things, here are my thoughts / questions. .

Mickey is a trademark. 100%. No one will argue that, and the mouse himself will be protected (as I mentioned in my original message). I actually don't care if Steamboat Willie is public domain and someone can show it in a public venue. I hope they do! Maybe people will want to see more of the mouse!

The question is how far does trademark extend? Is Minnie a trademark? What about Goofy? Pluto is just a dog after all.

Things get a little more muddy when you think about Winnie the Pooh (which is why I brought him up). Although the bear is clearly associated with the hundred acre wood band, he is NOT associated as clearly with Disney. In fact, other than seeing the Disney icons on the movies, many people may not even realize that Disney owns Winnie the Pooh (they certainty didn't when I was growing up).

Therefore we can assume he is NOT protected (and cannot be protected) under trademark laws.

Now honestly what does that mean? It really just means that we could have Winnie the Pooh merchandise, movies and other things that we may THINK are coming from Disney, expect to be of a certain amount of quality but turn out not to be. That stuffed bear I purchased for my son? He may fall apart the next day due to poor quality and I can't rely on a name (like Disney) to keep me safe from making a purchasing mistake.

Or the counter argument is that someone could produce a superior quality bear since it's open market.

 

[Geoff_M]

Mickey is a trademark. 100%. No one will argue that, and the mouse himself will be protected (as I mentioned in my original message). I actually don't care if Steamboat Willie is public domain and someone can show it in a public venue. I hope they do! Maybe people will want to see more of the mouse!

The question is how far does trademark extend? Is Minnie a trademark? What about Goofy? Pluto is just a dog after all.

The difference between a trademark and a copyright mainly boils down to usage. One is used as a trademark when it's used to identify a product as being produced by, or endorsed by, a specific entity. When you look at the tag of a T-shirt and see this:

...that would be an example of Mickey Mouse being used as a trademark. It identifies the producer of the shirt as being Disney, or it being an shirt authorized by Disney. The drawing of Mickey can be both copyrighted as well as used as a trademark. But it's important to note that simply trying to sell copies of the Mickey seen here would be a copyright violation today, but it wouldn't necessarily be a trademark violation. In order to be found as a trademark violation, Disney would have to file suit against a possible infringer and then demonstrate that the use of the Mickey image would likely create confusion by enough of the public such that they would reasonably think that the drawing was produced or authorized by TWDC.

It's also important to note that the US Supreme Court has ruled (Dastar Corp v Twentieth Century Fox Film Corp) that a trademark cannot be used as an IP protection end-run around copyright expiration. They noted that it was illogical that Congress simultaneously expressly has set fixed limits on how long a work may be copyrighted AND created trademark law that would leave open a wide loophole for works creators to be given permanent protection of the same works by simply trademarking elements found within them.

So what would losing copyright protection mean for Steamboat Willie and Mickey? Well if it falls into the public domain:
- People besides Disney could make and sell copies of the cartoon.
- You could broadcast on TV the cartoon or post it to Youtube without paying a royalty or worrying about a take-down notice.
- You could copy the plot and script to make your own Steamboat Willie cartoon.
- You could make and sell artwork (or other derivative works) containing the same rendering of Mickey found in Steamboat Willie. However, to protect yourself from possible trademark infringement claims, would would need to be sure to explicitly state that the works do not originate from Disney nor are they authorized by then.

It's also important to note that when it comes to copyright and trademark law, there aren't a lot of certainties. The only way to specifically answer a given question is for a lawsuit to be filed and the competing side argue their positions before a court who then will apply the principles set down in the applicable law.

It's also worth noting that other companies have had to deal with the same thing that Disney is now facing. The estates of Conan Doyle (Sherlock Holmes) and Edgar Rice Burroughs (Tarzan and John Carter) have tried to use trademarks to defend early works containing these famous characters from being in the public domain. So far, they haven't had much luck of keeping their genies in the bottles. A US court ruled in 2013 that Holmes was in the public domain here, and this story notes similar results in other countries. The Tarzan suit didn't make it all the way to a judgement and they settled with the comic book maker and decided to join forces with them, but legal analysts have said that if the defendant had decided to fight it to conclusion Burrough's estate likely would have lost.

 

[Q-man]

Isn't this part(main part) of the reason behind all the live action versions? Starting a new IP clock?

 

[TiggerBouncy]

The difference between a trademark and a copyright mainly boils down to usage. One is used as a trademark when it's used to identify a product as being produced by, or endorsed by, a specific entity. When you look at the tag of a T-shirt and see this:

...that would be an example of Mickey Mouse being used as a trademark. It identifies the producer of the shirt as being Disney, or it being an shirt authorized by Disney. The drawing of Mickey can be both copyrighted as well as used as a trademark. But it's important to note that simply trying to sell copies of the Mickey seen here would be a copyright violation today, but it wouldn't necessarily be a trademark violation. In order to be found as a trademark violation, Disney would have to file suit against a possible infringer and then demonstrate that the use of the Mickey image would likely create confusion by enough of the public such that they would reasonably think that the drawing was produced or authorized by TWDC.

It's also important to note that the US Supreme Court has ruled (Dastar Corp v Twentieth Century Fox Film Corp) that a trademark cannot be used as an IP protection end-run around copyright expiration. They noted that it was illogical that Congress simultaneously expressly has set fixed limits on how long a work may be copyrighted AND created trademark law that would leave open a wide loophole for works creators to be given permanent protection of the same works by simply trademarking elements found within them.

So what would losing copyright protection mean for Steamboat Willie and Mickey? Well if it falls into the public domain:
- People besides Disney could make and sell copies of the cartoon.
- You could broadcast on TV the cartoon or post it to Youtube without paying a royalty or worrying about a take-down notice.
- You could copy the plot and script to make your own Steamboat Willie cartoon.
- You could make and sell artwork (or other derivative works) containing the same rendering of Mickey found in Steamboat Willie. However, to protect yourself from possible trademark infringement claims, would would need to be sure to explicitly state that the works do not originate from Disney nor are they authorized by then.

It's also important to note that when it comes to copyright and trademark law, there aren't a lot of certainties. The only way to specifically answer a given question is for a lawsuit to be filed and the competing side argue their positions before a court who then will apply the principles set down in the applicable law.

It's also worth noting that other companies have had to deal with the same thing that Disney is now facing. The estates of Conan Doyle (Sherlock Holmes) and Edgar Rice Burroughs (Tarzan and John Carter) have tried to use trademarks to defend early works containing these famous characters from being in the public domain. So far, they haven't had much luck of keeping their genies in the bottles. A US court ruled in 2013 that Holmes was in the public domain here, and this story notes similar results in other countries. The Tarzan suit didn't make it all the way to a judgement and they settled with the comic book maker and decided to join forces with them, but legal analysts have said that if the defendant had decided to fight it to conclusion Burrough's estate likely would have lost.

Can I just say thank you for taking the time to clearly explain all of this. I appreciate it!

 

[Geoff_M]

Isn't this part(main part) of the reason behind all the live action versions? Starting a new IP clock?

No, each creative work (live-action or animated) is its own "clock". When a given works copyright "clock" expires, the copyrightable elements contained within it lose protection and then become part of the public domain. See the Sherlock Holmes example I cited above. The fact that there still were later books written by Doyle that were still covered by copyright didn't offer any protection for the same characters contained in them because Holmes and Watson were also found in earlier works that had slipped out of copyright protection. The only thing that new authors couldn't do legally when creating their own Sherlock Holmes mystery novels would be to use plot elements that were unique and contained in later works of Doyle that were still under copyright protection. For Disney, the only additional twist to this would be the fact that in addition to the character of Mickey Mouse being a copyrightable element, unlike the relatively shapeless figure of Holmes (except perhaps for his deerstalker hat and pipe), the stylized renderings of Mickey are also copyrightable. So, if Steamboat Willie goes public domain, while we may to able to produce our own re-makes of Steamboat Willie or create new cartoons with a character named "Mickey Mouse", we'd have to either come up with different stylized renderings of a mouse or stick tightly to the form found in Steamboat Willie. Also, we would need to stay away from plots in our new "Mickey Mouse" cartoons that can be found in later Disney Mickey Mouse cartoons that are still under copyright. Lastly, we'd also have to make it clear to the public that our new derivative works were not made by or sanctioned by Disney as a defense against trademark liability.

Let's apply this to Beauty and the Beast. Let say that we want to make our own cartoon (or live action) version of this classic work. Well for starters, we'd generally be in the clear because the base story is in the public domain. La Belle et la Bête was written by Gabrielle-Suzanne de Villeneuve, who died in 1755 in France... so it's fair game for our project since there is no copyright to the basic story. BUT, we'd have to remember that Disney still owns copyrights to creative elements that they introduced into their adaptation of the public domain story. I haven't read the original work, but given the fact that de Villeneuve was French I doubt that her story contains "Anglo" named characters like Cogsworth, Mrs. Potts or Chip. I also doubt that there's a large Broadway-like production number surrounding dinner in it. If we tried to use those uniquely Disney elements in our version, Disney would have our legal skins. We'd also want to make sure that our Belle and Beast don't look too much like the ones Disney created (but features mentioned in de Villeneuve's book would be safe to use). But as long as we steer clear of those possible entanglements, we'd be free to make our own "Beauty and the Beast" film.