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Mickey, Disney, and the public domain: A 95-year love triangle

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Re: Mickey, Disney, and the public domain: A 95-year love triangle

#71

Post by bentley »

ronsor wrote: post #64
JoshTriplett wrote: post #58

Earlier quoted context omitted.

> They lost the case, because the Supreme Court (of Canada) ruled you can’t double‐dip on IP protection by turning a functional (i.e., patentable) design into a trademark. There's case history on that in the US as well.

IIRC, non-Nintendo-licensed Gameboy games were allowed to reproduce Nintendo's trademarked logo because it was necessary for the game to run. Trademarks are restricted to brand identification only; attempting to use them for anything else will result in trouble and wasted money.

Nintendo did attempt that trick, although the case you’re thinking of is Sega v. Accolade, which as you said, ruled that forcing your competitor to display your trademark unwillingly doesn’t mean you can smack them down for trademark infringement.

Re: Mickey, Disney, and the public domain: A 95-year love triangle

#72

Post by kmeisthax »

galangalalgol wrote: post #57
krebby wrote: post #52

Earlier quoted context omitted.

The Corridor Crew just did a good legal analysis on this a couple weeks ago: https://www.youtube.com/watch?v=u2dIvUAd5QE&t=533s Basically the Disney brand has gotten so huge and diversified that a public domain Mickey isn't an existential threat to their business anymore. Terrifying in its own right, but at least we might see an end to the endless copyright extension. Interesting times ahead!

Can we go back to death +50 then? Tolkien would be public domain next year. In Canada it was close but they switched to +70 last year.

Take it up with Germany, they're the ones that pushed life+70 on the EU, who then ratcheted it onto the US...

Re: Mickey, Disney, and the public domain: A 95-year love triangle

#73

Post by smt88 »

bentley wrote: post #33
fbdab103 wrote: post #31

Earlier quoted context omitted.

Florida passed the "Don't Say Gay" bill, to which Disney publicly stood against. Since then, GOP led Florida government has decided that Disney is the enemy and has taken active measures to bludgeon them.

How much influence does the Florida legislature have over federal copyright law, really?

Probably very little. This theory is pretty bad from many angles, including timing.

Re: Mickey, Disney, and the public domain: A 95-year love triangle

#74

Post by 8note »

bentley wrote: post #28
EvanAnderson wrote: post #18

Earlier quoted context omitted.

I've seen a lot of speculation that they've been slowly pivoting Steamboat Willie in preparation to use trademark litigation where copyright will no longer be effective.

This kind of thing has been attempted in the past. For example, after the Lego brick patents expired, Lego sued Mega Bloks (in Canada) claiming a trademark over the design of the brick. They lost the case, because the Supreme Court (of Canada) ruled you can’t double‐dip on IP protection by turning a functional (i.e., patentable) design into a trademark. Disney putting Steamboat Willie in their logo is unlikely to act…

This makes much more sense with a patent than copyright.

How do you trademark the exact shape of a Lego brick?

On the other hand, trademarks tend to be some form of art, so copyright and trademarks make sense to coincide

Re: Mickey, Disney, and the public domain: A 95-year love triangle

#75

Post by NolF »

kelnos wrote: post #67
galangalalgol wrote: post #57

Earlier quoted context omitted.

Can we go back to death +50 then? Tolkien would be public domain next year. In Canada it was close but they switched to +70 last year.

That doesn't go far enough. Copyright terms should be on the order of 20 years or so, and should have nothing to do with whether or not the creator is still alive.

It's probably too short. It would live authors with very little bargaining power particularly if they become bigger in their writing carriers. Corporations would just have to wait 20 years and save themselves the exclusive rights and royalties.

It should be looked form the frame of how long is appropriate to promote the creation of the arts etc. Realistically no author is thinking I won't create this art unless I get lifetime + 70.

I would think 50 years total is a much more reasonable figure.

Re: Mickey, Disney, and the public domain: A 95-year love triangle

#76

Post by 8note »

bentley wrote: post #32
foob wrote: post #16

My pet theory is that the only reason we didn't see a copyright extension act this year, like we've seen every time Steamboat Willy was about to enter the public domain in the past, is that Disney ended up on one side of the culture wars with what went on in Florida. It's far more difficult to get bipartisan support for robbing the public of what should be in the public domain once you've involved yourself in partisa…

I doubt it played a very big role. Consider: the last general copyright extension in the US was the CTEA in 1998. Back then, the movie and music industries were among the biggest players in the copyright space. Since 1998, though, Silicon Valley companies (most obviously Google) have become powerhouses with lots of money and lots of incentive to fight future copyright extensions.

Do silicon valley companies still have a big incentive to fight copyright extension?

The public domain and copyright expiry is one more set of requirements for SV code to have to implement and support. It's way easier if the owner stays for ever, and that there is a single owner

Re: Mickey, Disney, and the public domain: A 95-year love triangle

#77

Post by kmeisthax »

ronsor wrote: post #64
JoshTriplett wrote: post #58

Earlier quoted context omitted.

> They lost the case, because the Supreme Court (of Canada) ruled you can’t double‐dip on IP protection by turning a functional (i.e., patentable) design into a trademark. There's case history on that in the US as well.

IIRC, non-Nintendo-licensed Gameboy games were allowed to reproduce Nintendo's trademarked logo because it was necessary for the game to run. Trademarks are restricted to brand identification only; attempting to use them for anything else will result in trouble and wasted money.

The case was SEGA v. Accolade, but the lockout system on the Genesis worked on the same legal theory (e.g. induced trademark infringement equals Doctorowian[0] interpretations of "intellectual property"[1]). For the Game Boy, the problem was that Taiwan[2] didn't have a copyright treaty with Japan, but they did have a trademark treaty, so if you induced pirates to commit a trademark violation you could get them with something. Same idea, but the jurisdiction is different, so all the existing case law about not turning trademark into mutant perpetual copyright wouldn't apply here.

[0] "Intellectual property is any law that allows you to dictate the conduct of your competitors." - Cory Doctorow, paraphrased

[1] Yes, it's a shitty made-up term to make you confuse four different kinds of law, no I don't care. There's enough negative sentiment around "intellectual property" these days that the Stallmanian position sounds like a defense of it now.

[2] It's a country, get over it

Re: Mickey, Disney, and the public domain: A 95-year love triangle

#78

Post by ronsor »

bentley wrote: post #69
shmerl wrote: post #62

Earlier quoted context omitted.

Were increases considered constitutional amendments? If they could happen, then what's the problem to revert it?

Previous copyright extensions were not constitutional amendments. Decreasing the length of new copyright terms could be done the same way, without any need for an amendment. Reducing the length of existing copyright terms might be considered an ex post facto law. Those are explicitly prohibited by the Constitution. The Constitution states that copyrights must be limited in length. Retroactively extending the duration…

> Reducing the length of existing copyright terms might be considered an ex post facto law.

It's arguable that "about a century" was not what the drafters of the Constitution had in mind when writing "a limited time", but convincing the Supreme Court of that would be harder than an actual amendment.

But isn't the ex post facto prohibition mainly related to consequences of past actions rather than general public policy? No one is going to jail because copyright terms were reduced to 15 years from 95.

I think such a reduction would definitely be constitutional if it were phrased as "all new copyright terms will be XYZ, and existing ones will expire XYZ from the effective date of this act," but I'm not totally convinced that's necessary.

Re: Mickey, Disney, and the public domain: A 95-year love triangle

#79

Post by jauntywundrkind »

EvanAnderson wrote: post #18
candiddevmike wrote: post #7

Was there a copyright reason for Disney changing their opening logo sequence to the steamboat willy thing? Some kind of "it's now our trademark" claim?

I've seen a lot of speculation that they've been slowly pivoting Steamboat Willie in preparation to use trademark litigation where copyright will no longer be effective.

At very best, I'd say Disney might possibly be a tiny bit excited that something from inside Castle Disney is entering the world & will become semi exciting on its own.

Sure there'll be bad & ugly & awful things done with Steamboat Willie. But no press is bad press. And there's going to be some press about the things people do with the mouse.

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