I can't really fault Disney for this. Mickey Mouse is one of the most recognizable symbols/brands on earth. The difference between Disney and McDonalds and Coca Cola is that there isn't an expectation we all get unfettered access to use the Golden Arches or the Coke logo. Disney is still making new IP with Mickey Mouse; why should they be expected to give up their rights to their most recognizable character that they're still making things for?
So I'd say this isn't so much the result of Disney, as it is the result of bad legislation and possibly outdated expectations about intellectual property that hasn't been updated to reflect reality.
I think you're confused. Disney is free to make new Mickey Mouse movies, and those will be protected by copyright. Likewise, they can register Mickey Mouse as a trademark for certain business situations so no one is ever tricked into thinking a 3rd party product is endorsed by Disney. Buy what they absolutely shouldn't have is the ability to prevent other people from writing new Mickey stories, from watching 70 year old Mickey cartoons on YouTube, or from selling black plastic hats with Mickey Mouse ears. How could you dispute this? If you do, why shouldn't Shakespeare's estate keep exclusive rights to all his works?
While I agree with you in principle, some of the specifics I take issue with:
1. Writing new Mickey stories - This is an odd legal/moral area for me. It's not unreasonable for Disney to want to protect Mickey and if you wrote a Mickey story, it's possible that people could feel that a 3rd party product is endorsed by Disney. That could affect Disney's future business. Distributing Steamboat Willy on YouTube will not.
2. Mickey Mouse ears - Pretty clearly a trademark violation. Outside of the ___domain of copyright entirely.
I don't mean to nitpick, but I don't think it helps to confuse different types of intellectual property in this discussion. Steamboat Willy is a discreet work of art that should enter the public ___domain. As should all other works from that time. That is good for society and really has no bearing on anyone's ability to create commercially viable works of art (other than derivative works such as a Steamboat Willy stage play or novelization).
The brand of Mickey is separate and Disney has a legitimate (though perhaps not legitimate enough, I'll admit) interest in protecting it. Part of the problem is they are deceiving people into conflating the two issues to protect a supplementary revenue stream and control their brand.
> t's possible that people could feel that a 3rd party product is endorsed by Disney.
No it isn't, that isn't how the world works. If you take public ___domain material and utilize it in your own way there is no semblance of reason to think the original creator of said material endorsed you. I don't know if you are talking about how we are now living in a world where basically nobody alive has experienced material entering public ___domain, but it isn't a nebulous area.
I'm talking about a world where the character is a trademark, a distinctive brand in and of itself and where the "creator" is no longer a living person, but a corporation that continues to create work with the characters. Steamboat Willy is a distinct piece of art. However, the characters in it have become brands unto themselves.
The world of trademark and copyright are colliding in a new way here if Steamboat Willy were to enter the public ___domain. Can you seperate the trademark "Mickey Mouse" from the work "Steamboat Willy"? Does the fact that some Mickey Mouse cartoons are in the public ___domain mean that Mickey Mouse the character is in the public ___domain? And how does that affect works still being created with Mickey in them?
But that's beside the point. The point I want to make is that Disney wants us to be confused. They want us to conflate two distinct intellectual property issues. Steamboat Willy should be public ___domain, period. The repercussions of that are interesting, but really a separate area of law. Mixing the two only serves to support Disney's argument. Creative works such as films and books should enter the public ___domain -- as is and open to redistribution and use in derivative works -- after 14+14.
EDIT: Just to provide a concrete example, there are Disney films made during the Second World War (Spirit of '43) that are in the public ___domain. The character in this particular case is Donald Duck. Off the top of my head I know of no particular case law so perhaps it's never been challenged, but though it is certainly possibly to distribute, screen and create derivitive works of that film for free (I've done it myself at a summer screening of old movies we used to host when I was in college), I really don't know of anyone who's has distributed new Donald Duck movies or stories and gotten away with it. It does make me curious if they could, however.
The relevant case here is a recent decision regarding the Sherlock Holmes books published before 1923. The characters represented in those works (i.e. without later developments in still-copyrighted books) are in the public ___domain, and can be freely used in new stories. There's no reason to think that the same wouldn't apply to Micky and Donald.
There are also plenty of examples where new (and valuable) IP is still being created from material that no one (not even heirs) disputes is in the public ___domain.
How many remakes of Shakespeare, Jane Austen, heck, stories from Greek mythology and the Bible have been made? Lots.
As many have noted (including someone upthread), Disney itself strip-mined the public ___domain for many of its big-budget pictures.
> 1. Writing new Mickey stories - This is an odd legal/moral area for me. It's not unreasonable for Disney to want to protect Mickey
It's not "unreasonable" for the Sherlock Holmes estate to want to keep everything to do with that character too, but tough beans, they don't get to.
> and if you wrote a Mickey story, it's possible that people could feel that a 3rd party product is endorsed by Disney.
Disney is on the same footing as all other citizens in utilizing the public-___domain Mickey character. It's always possible when someone builds on a work that had entered the public ___domain for that new work to be attributed mistakenly to the original author. This isn't an excuse for the former copyright holder to have any additional rights over the work.
> 2. Mickey Mouse ears - Pretty clearly a trademark violation. Outside of the ___domain of copyright entirely.
Disagree, although this out of my area of expertise. The point of trademark is for brand/company recognition. Trademarks can't be made of "the idea of Mickey Mouse" once Micky has entered the public ___domain, so I don't see how Micky ears would violate it. I could trademark a particular 19th century drawing of Shakespere when used as a logo for my company, and it would be protected in that role on, e.g., packaging and advertisements. But that doesn't mean others can't sell reproductions of the painting or make t-shirts out of it.
Part of the problem is the character isn't exactly copyrighted. It is the reason why we just had a recent lawsuit about Sherlock Holmes. You are free to create a book or movie about Sherlock Holmes. Just don't use any of the info from the last few books in the series.
I think that Disney should be able to protect Mickey in a trademarked way, and do it at a cost. But it is going to be more complicated than "you can't use the characters"
But you can trademark a logo or other distinctive marking. For example, I cannot trademark the baseball cap, but I could trademark a team logo's presence on said hat. I don't know, but I would expect a court to side with Disney on that issue.
They would not be relinquishing their trademarks or the rights to make more Mickey Mouse movies. Nor would this necessarily mean that the character of Mickey Mouse would go into the public ___domain. Simply that the discrete works would now be public ___domain.
There are Donald Duck works in the public ___domain (Spirit of '43) and that doesn't seem to impact their bottom line terribly.
These days kids barely know who Donald Duck or Mickey are. I wonder how much of that is because Disney intentionally invests in other IP that isn't under this threat.
There's a newly-created Mickey Mouse series on Disney Channel; from what little I've seen of it, Mickey's look is much more of a throwback to the Steamboat Willie age.
Also, when I saw Frozen at the theater a couple of weeks ago, there was an old-style Mickey cartoon before the picture (albeit one that broke the fourth wall in ways I don't believe the old cartoons did).
Maybe I'm being nostalgic but Mickey used to be a big movie star and now he's relegated to mostly direct-to-dvd. He was still immensely popular through the 1980s with rereleases of Fantasia in theaters, Mickey's Christmas Carol, etc. Now it seems unimaginable that he'd star in a big budget Disney film. It seems reasonable to me that they are preferring IP that was created post-1976 for a reason.
About 20 years ago I was in Orlando (not to see Disney World, though we did). When the done-up characters came through the room where we were having breakfast, you could see the eyes get big as quarters on some little kids at a table over from us. I have to think this was recognition, since otherwise it should have scared them terribly.
> These days kids barely know who Donald Duck or Mickey are.
Ignoring the fact this is likely false, this has nothing to do with copyright. It's a matter of trademark law, and Disney would in no way lose the trademark over any of its characters if certain specific films featuring them were released into the public ___domain.
I'm still not convinced any one entity deserves to keep a creation for so long under monopoly given by the society (some interesting discussions in 1869 [1] about this), but let's assume they do. I'd still like to see a system where you only get copyright for new works for 5 years. Then you have to pay $1,000 to renew it for another 5 years. And then the fee increases geometrically (and also adjusted to inflation), to something like $1 million+ after 50+ years, because if the work is worth that much to you after so much time, then you should be able to pay for it, and it would also "give back" to the society that keeps granting you the monopoly for that work.
Then the average lifetime of copyright monopolies should be around 15 years, which is actually about what it was when copyright laws were first created (the average would be dragged down a lot by people who wouldn't care about stuff they made in a week enough to pay $1,000 5 years later, but most of the "real works" that would be worth it, will probably have it for around 30 years or so.
We see it with books that after 10 years most of them are basically dead, and nobody cares about them anymore (can't find that link right now, but some of you probably know what I'm referring to). There are some "Mickeys" here and there that are relevant 100 years later under copyright, but it's more like 1 in a million works. The rest is abandoned - but it still retains the copyright on it so nobody can re-use it to improve the culture of the society (even if it just means having a company like Google find all the old books and digitize them, something they've barely won, and is actually getting appealed right now). I think that's just wrong.
I'd prefer a fixed copyright term that applies to everyone, possibly with different terms for different industries. That way rich and powerful studios enjoy the same protections as starving first-time novelists.
It would be grossly unfair for some small open source project to enter the public ___domain after five years, allowing commercial developers to fire most of their R&D staff and just assimilate five year old OSS without paying it forward. For that matter, any large publisher would just have to bury new authors in obscurity for five years to be able to steal their work for free.
I understand a compounding registration fee is meant to appease the behemoths who can afford it, but such a plan would end up working in their favor.
Copyright protects more than the ability to commercialize a work. The terms must be shortened, but they must also be blind to the wealth of the copyright owner.
I propose instead, as an example for discussion, a fixed term for duplication rights of 14 years from publication (+/- some years depending on industry), with a single low-cost renewal. For moral rights, life of the author plus a few years, with a 100 year maximum (people are living longer these days).
If you are paying an R&D staff, you aren't paying them to be 5 years behind open source development. You are paying them to be ahead of open source and your competitors. No one is going to make money by ripping off five year old OSS.
5 years is WAY to short. Harry Potter was published in 97, and the film was released in 01. They paid a million dollars for the rights. In your world they would wait a year or two and do it for free. A recent study claimed there were few books on Amazon older than 25 years. So that sounds like a good length.I'm not sure what the length should be, BUT the current length which is longer than the average human life span, is too long.
> Harry Potter was published in 97, and the film was released in 01. They paid a million dollars for the rights. In your world they would wait a year or two and do it for free.
For patents, you do have to pay maintenance fees to renew a patent at the 3.5, 7.5 and 11.5 year marks after issuance to keep it active, else it goes abandoned. A vast number of patents go un-renewed and lapse that (1) few patents turn out to be "profitable", and (2) most patents don't last their full terms.
The geometric part of the idea is what really caught my eye. I think there's something to be said for a steeply escalating cost for maintaining publicly protected monopoly rights.
So I'd say this isn't so much the result of Disney, as it is the result of bad legislation and possibly outdated expectations about intellectual property that hasn't been updated to reflect reality.