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Welcoming Recorded Music to the Public Domain

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Re: Welcoming Recorded Music to the Public Domain

#21

Post by kibwen »

wgjordan wrote: post #16
kibwen wrote: post #11

Earlier quoted context omitted.

Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032. Let's also keep in mind the difference between copyright and trademark; even if art containing Mickey Mouse enters the public domain, that doesn't mean that Disney loses the trademark to Mickey Mouse. AIUI you would be able to repr…

> AIUI you would be able to reproduce Steamboat Willie verbatim The cynic in me suspects that even this might be challenged. Is there anything specifically preventing trademark protections from applying to unauthorized verbatim reproduction, and only derived works?

The goal of trademark is to protect one's reputation by preventing other people from attributing work to you that you did not authorize. Disney unambiguously did authorize Steamboat Willie and its representation of Mickey Mouse, so a verbatim reproduction clearly cannot cause consumer confusion. Trademark law does not need to specifically prevent it, because there's no trademark violation in the first place. Only once you start making unauthorized changes to the source material does there start to be an argument that you are threatening Disney's reputation.

Of course, just because using trademark in this way is nonsensical doesn't mean that Disney won't try and/or succeed. But it would be pretty outrageous. The only reason to entertain this notion at all is because Disney's past actions regarding copyright have been outrageously evil to begin with.

Re: Welcoming Recorded Music to the Public Domain

#23

Post by not2b »

TeeMassive wrote: post #17
kibwen wrote: post #11

Earlier quoted context omitted.

Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032. Let's also keep in mind the difference between copyright and trademark; even if art containing Mickey Mouse enters the public domain, that doesn't mean that Disney loses the trademark to Mickey Mouse. AIUI you would be able to repr…

> Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032. It makes me wonder if they will push DeSantis for president just to extend copyright?

They'd have to get a law passed, control of the White House wouldn't be enough. I don't think they could get a copyright extension through again because the issues are better understood now and it couldn't be done quietly.

Re: Welcoming Recorded Music to the Public Domain

#24

Post by jerf »

TeeMassive wrote: post #17
kibwen wrote: post #11

Earlier quoted context omitted.

Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032. Let's also keep in mind the difference between copyright and trademark; even if art containing Mickey Mouse enters the public domain, that doesn't mean that Disney loses the trademark to Mickey Mouse. AIUI you would be able to repr…

> Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032. It makes me wonder if they will push DeSantis for president just to extend copyright?

At this point, it's not a question of whether or not they need to buy off politicians of either party, who will pass pretty much anything asked for. It's a question about the Supreme Court, which has so far upheld the extensions but has showed signs of being increasingly crabby about them. But so far it's all words.

Re: Welcoming Recorded Music to the Public Domain

#27

Post by kmeisthax »

kibwen wrote: post #11
teeray wrote: post #7

So what has Disney done this year to contort our public domain laws?

Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032. Let's also keep in mind the difference between copyright and trademark; even if art containing Mickey Mouse enters the public domain, that doesn't mean that Disney loses the trademark to Mickey Mouse. AIUI you would be able to repr…

Copyright law in the US has a preemption clause specifically intended to prohibit people from constructing copyright-shaped legal claims out of things that aren't actually copyrightable[0]. So you probably couldn't sue someone for trademark infringement purely because they stuck a hypothetically public domain Mickey Mouse in an otherwise unrelated book, or remixed the crap out of Steamboat Willie. As long as you avoided implying that your work was an official Disney product, they probably wouldn't have a claim.

What you would have to worry about is the split between public-domain Mickey and copyrighted Mickey. The minimum standard for copyright infringement is access plus substantial similarity, so you'd have to make sure to either...

1. Only ever watch public-domain Mickey Mouse shorts, and hope nobody can argue access to the still-copyrighted works. This sort of sequestration would be rather difficult to pull off; though fortunately the whole "inverse ratio" nonsense that got Katy Perry in trouble has been overturned.

2. Intentionally watch all of the copyrighted shorts and use that knowledge as a guide of "what not to do". What actually constitutes substantial similarity is rather difficult; it's typically something juries decide on a case-by-case basis.

You'd be best protected if you were doing something entirely different to what Disney was doing with his[1] own characters. The idea behind substantial similarity is that if I can squint at your copy a little and see the copyrighted original, then you're not legally distant enough to be a separate work. So you want to make sure to keep novelty in mind when reusing old Disney works. Things that would be "obvious to try" likely have already been tried and are thus still under copyright[2].

[0] The intended target of copyright preemption was actually state law; pre-1973 states had their own legal regimes for sound recordings which didn't get struck down until just today. Interestingly enough these common-law sound recording regimes also sidestepped the whole "for limited times" things and were actually perpetual in some states. That's why so much music is hitting the public domain today.

[1] Historians of early American animation would probably argue that Disney did not create Mickey Mouse, but that Ub Iwerks did. This is correct; but you must also remember Walt Disney's villain origin story of having Ub's prior work on Oswald taken from him. Disney insisted on copyright assignment or work-for-hire status for everything afterwards, and that's what actually matters legally.

[2] This is the same reason why it's legally perilous to use public-domain Sherlock Holmes as a character; the stories where Arthur Conan Doyle decided to let Sherlock emote are still under copyright, so the character's emotions are copyrighted, too. This is an absolutely silly legal argument that the Doyle estate has actively pursued in court.

Re: Welcoming Recorded Music to the Public Domain

#28

Post by extra88 »

kibwen wrote: post #21
wgjordan wrote: post #16

Earlier quoted context omitted.

> AIUI you would be able to reproduce Steamboat Willie verbatim The cynic in me suspects that even this might be challenged. Is there anything specifically preventing trademark protections from applying to unauthorized verbatim reproduction, and only derived works?

The goal of trademark is to protect one's reputation by preventing other people from attributing work to you that you did not authorize. Disney unambiguously did authorize Steamboat Willie and its representation of Mickey Mouse, so a verbatim reproduction clearly cannot cause consumer confusion. Trademark law does not need to specifically prevent it, because there's no trademark violation in the first place. Only onc…

> The goal of trademark is to protect one's reputation by preventing other people from attributing work to you that you did not authorize.

I wouldn't put it that way. Trademark [0]:

* Identifies the source of your goods or services. * Provides legal protection for your brand. * Helps you guard against counterfeiting and fraud.

> consumer confusion

Yes, preventing consumer confusion is an important reason for trademark laws to exist, as a protection against counterfeiting and fraud.

[0] https://www.uspto.gov/trademarks/basics/what-trademark

Re: Welcoming Recorded Music to the Public Domain

#29

Post by sircastor »

teeray wrote: post #7

So what has Disney done this year to contort our public domain laws?

IIRC, recently when works started entering the public domain again, one of the large Copyright orgs essentially said “We don’t think we could get an extension through congress this time around, so we’re not going to try.”

Re: Welcoming Recorded Music to the Public Domain

#30

Post by kmeisthax »

TeeMassive wrote: post #17
kibwen wrote: post #11

Earlier quoted context omitted.

Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032. Let's also keep in mind the difference between copyright and trademark; even if art containing Mickey Mouse enters the public domain, that doesn't mean that Disney loses the trademark to Mickey Mouse. AIUI you would be able to repr…

> Nothing new so far, Steamboat Willie isn't scheduled to enter the public domain until 2024. And considering only the properties that Disney actually cares about, Snow White has until 2032. It makes me wonder if they will push DeSantis for president just to extend copyright?

No. The last major term extension was a perfect storm of Germany, Disney, and everyone else in the industry bullying around the EU and US to go life+70. Mickey Mouse was also arguably one of Disney's flagship works back then. This was also in a world where copyright was a boring part of the law nobody cared about except the people who benefited from it's imposition.

This isn't really the case anymore:

- Copyright law was already harmonized up. There are very few countries that regularly grant longer terms: Mexico, Columbia, Jamaica, St. Vincent and the Grenadines, Samoa, and Equatorial Guinea. None of those countries are international dealmakers and I do not see the US or EU raising terms to match them.

- Disney's flagship properties aren't Disney works anymore. They're the Star Wars and Marvel universes. Those have greater cultural cachet, remaining copyright terms to match, and Disney owns them lock, stock, and barrel. Snow White isn't even their own work; it's a German folk tale that the Brothers' Grimm made a children's version[0] of, a century prior to Disney's animated adaptation. The characters and story are already public domain, Disney only owns an animated adaptation of it.

- In the sense that Disney might not fully control the Marvel Cinematic Universe, they stand to benefit by weakening copyright (so they can stop having to share Spider-Man with SONY), not extending it.

- There's less appetite among other creators for longer terms. The big hot-button issue with authors is the market power of large platforms; the sort of thing that can't be fixed by just lengthening terms out more. Furthermore, the Sonny Bono act was pushed through with a promise that the extra licensing money publishers got would result in more artists getting more money; this has not happened and I don't think they'll get fooled again.

- Stop SOPA/PIPA happened. Furthermore, thanks to a combination of YouTubers having terrible copyright discipline and actual scammers using DMCA 512 as an extortion mechanism; there's far more public awareness of the downsides of having strongly-enforced copyright laws.

[0] Ironically, the Grimm versions of these fairy tales are perceived as more "hardcore" and "uncensored", mostly because Disney softened them down more.

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