Exposed: Disney's repurchase of Oswald the Rabbit a sham

[88fingers]

Originally Posted by TheVileOne

If this is about art and public domain art inspiring more artists, why should people even have to wait until the creators' passing for an intellectual property to become publically owned?

TheVileOne, there are those who'd argue just as you say. For many years, copyright didn't last anywhere nearly as long as it does now. The conventional wisdom has been to strike a balance. You want to allow artists (including authors, filmmakers, animators, etc.) to make a living and give them incentive to create. At the same time, you don't want to stifle artistic creation by making those rights interminable so that some distant heir of, say, Charles Dickens, is controlling what people can do with the Christmas Carol one hundred and fifty years later, or charging exorbitant fees for the rights to do that. Those distant heirs, like this one, are still around, and might be very happy to do just that.

One good example of a public domain-based creation is League of Extraordinary Gentlemen.

[Martianinvader]

I don't see why trademark on Mickey Mouse would prevent Steamboat Willie from falling into public domain because there are, of course, all those public-domain prints of Bugs Bunny and Porky and Popeye and Betty Boop.

Copyright's a confusing thing. Does this type of deal not apply to music? "Happy Birthday To You" is the kind of thing most people assume must be public domain, yet it still isn't.

[TheVileOne]

Originally Posted by 88fingers

TheVileOne, there are those who'd argue just as you say. For many years, copyright didn't last anywhere nearly as long as it does now. The conventional wisdom has been to strike a balance. You want to allow artists (including authors, filmmakers, animators, etc.) to make a living and give them incentive to create. At the same time, you don't want to stifle artistic creation by making those rights interminable so that some distant heir of, say, Charles Dickens, is controlling what people can do with the Christmas Carol one hundred and fifty years later, or charging exorbitant fees for the rights to do that. Those distant heirs, like this one, are still around, and might be very happy to do just that.

One good example of a public domain-based creation is League of Extraordinary Gentlemen.

Basically my thought process is that existing copyright in no way stifles creativity.

Disney's actually doing something creative now with Oswald, so I don't see their copyright hurting that.

I personally don't understand how Kirby's estate can claim ownership and money owed over the Marvel characters Kirby worked on, unless something was specifically written in 1960's saying ownership belonged to Kirby.

Since Kirby has passed, his estate suing for ownership in no way produces more creativity but arguably prevents the copyright owners, Marvel Ent., from doing more creative things with the property.

Ultimately, my feeling is if it is within Disney's power to maintain ownership over Disney characters or make a case for doing as such, I see no reason that they shouldn't.

[88fingers]

Originally Posted by Martianinvader

I don't see why trademark on Mickey Mouse would prevent Steamboat Willie from falling into public domain because there are, of course, all those public-domain prints of Bugs Bunny and Porky and Popeye and Betty Boop.

Copyright's a confusing thing. Does this type of deal not apply to music? "Happy Birthday To You" is the kind of thing most people assume must be public domain, yet it still isn't.

Martianinvader, it absolutely is confusing--which is what companies like Disney sometimes rely upon as a disincentive to the public to try to test it. Music does operate under the same copyright law, with some nuanced differences. Indeed, the George Gershwin estate was another lobbyist to extend copyright laws.

You touch on something related to character copyright specifically. The copyright on a character depends on that character's first appearance. So as long as the first Betty Boop cartoon is under copyright, if her third cartoon (by lack of renewing it) fell into the public domain, that specific cartoon could be distributed/sold/replayed/exhibited by anyone... however, the character herself is still under copyright. You couldn't make a new Betty Boop cartoon, for example. That's why Steamboat Willie is important.

One of the cases most relevant to our discussion here is a famous one called the Harvey case, referring to Harvey Comics. Here's what happened. Remember the Ghostbusters logo? Well, Harvey Comics thought that logo looked a lot like "Fatso," Casper's uncle. Harvey sued... for 50 million dollars! Well, Columbia, the studio behind Ghostbusters, pointed out that Harvey had allowed Fatso to fall into the public domain by not renewing the first comic books in which he appeared (Fatso is pretty generic, so the court had to look at "top-knotted" ghosts!). Harvey argued back and said, wait a minute, we copyrighted all the later comic books!

No dice, said the judge. Here was the ruling on that: <<These copyrights cannot "affect or enlarge the scope [or] duration" of copyright protection for the artwork which has long since entered the public domain.>>

As I've said earlier, you can't put the genie back in the bottle once a character has entered the public domain.

Harvey lost, Ghostbusters's ghost logo lived on.

If anyone is itching to read the judgment in the Harvey case, you can do so here.

On the other hand, we can imagine a scenario in which the first appearance of Fatso was copyrighted and none after that--the character would still be under copyright protection even though all the comics would be in public domain.

The Oswald situation is similar to Fatso's--the first were not renewed for copyright, so even though the later ones were, Oswald entered the public domain and that's that.

[88fingers]

Originally Posted by TheVileOne

Basically my thought process is that existing copyright in no way stifles creativity.

Disney's actually doing something creative now with Oswald, so I don't see their copyright hurting that... Ultimately, my feeling is if it is within Disney's power to maintain ownership over Disney characters or make a case for doing as such, I see no reason that they shouldn't.

But TheVileOne, why not let the estate of Charles Dickens, and the estates of the creators of, for example, Peter Pan, Sherlock Holmes, and Dracula, control the characters in perpetuity? The new Sherlock Holmes movie likely would never have gotten made the way it did--I haven't seen it yet, so maybe that's a good thing, but hopefully my point is coming across. The proponents of a robust and expanding creative commons would say you cannot restrict artistic development of important cultural properties to one family or corporation without huritng the culture overall.

None of that really has to do with Oswald. What I'm pointing out is they don't have the copyright on Oswald, not that they do have the copyright and they shouldn't. I think this is much more troubling, because they are using the complexity of copyright law to confuse the public into thinking they control the rights when they don't (or control only other types of rights).

[TheVileOne]

Originally Posted by 88fingers

But TheVileOne, why not let the estate of Charles Dickens, and the estates of the creators of, for example, Peter Pan, Sherlock Holmes, and Dracula, control the characters in perpetuity? The new Sherlock Holmes movie likely would never have gotten made the way it did--I haven't seen it yet, so maybe that's a good thing, but hopefully my point is coming across. The proponents of a robust and expanding creative commons would say you cannot restrict artistic development of important cultural properties to one family or corporation without huritng the culture overall.

88fingers, I see your point. And honestly here's what I have to say to everything you said. Why not? Honestly, I say if they can, why not? The thing is . . . they didn't. Honestly, that might've prevented things like Dracula 3000 and the Sherlock Holmes animated series.

Here's the thing 88fingers. Copyrighted material still doesn't prevent creativity. Copyrighted material still inspires and causes the creation of new material that is also copyrighted. Even if its different. Copyright or restrictions over use of material still doesn't prevent the inspiration or creation of new art or new intellectual property. It encourages it in its own way for people to come up with their own creations.

If Robert Kirkman wanted Invincible to stay in his family for the entire history of creation and the universe, and he figured out a way to do that . . . I honestly think that would be alright if that's what he wanted.

None of that really has to do with Oswald. What I'm pointing out is they don't have the copyright on Oswald, not that they do have the copyright and they shouldn't. I think this is much more troubling, because they are using the complexity of copyright law to confuse the public into thinking they control the rights when they don't (or control only other types of rights).

OK, well if they do NOT indeed have copyright over Oswald . . . they can still use Oswald if its public.

[88fingers]

Originally Posted by TheVileOne

OK, well if they do NOT indeed have copyright over Oswald . . . they can still use Oswald if its public.

You're exactly right, TheVileOne, which is why it's so frustrating that they'd throw up a smokescreen rather than just embrace Oswald as a public domain property they (and anyone else) could use.

As for copyright not preventing creativity, you're right about that, too, it doesn't. But the public domain does enrich the creative culture. Again, a huge percentage of Disney films from Snow White to Christmas Carol arise from public domain materials. No one would argue copyright protection shouldn't exist--just that at some point it does end.

[TheVileOne]

Originally Posted by 88fingers

You're exactly right, TheVileOne, which is why it's so frustrating that they'd throw up a smokescreen rather than just embrace Oswald as a public domain property they (and anyone else) could use.

As for copyright not preventing creativity, you're right about that, too, it doesn't. But the public domain does enrich the creative culture. Again, a huge percentage of Disney films from Snow White to Christmas Carol arise from public domain materials. No one would argue copyright protection shouldn't exist--just that at some point it does end.

I agree that it does, but I don't think its a crime or even a bad thing if entities do what they can to maintain control and copyright over intellectual property.

Copyright itself is also not absolute. The Ninja Turtles property was just bought out by Nickeledeon. Disney is in the process of buying Marvel Entertainment. The Terminator property is now up for sale.

So even copyright ownership itself has precedence for changing.

[Romanesque]

Now here's a good question: if copyrights had been perpetual since the dawn of history, would Disney exist at all today? For all the company's perpetual defense of its own copyrights, Disney made darn good use of the public domain to get where it is today.

--Romey

[88fingers]

Originally Posted by Romanesque

Now here's a good question: if copyrights had been perpetual since the dawn of history, would Disney exist at all today?

--Romey

Good question, Romey. It would certainly be very different. When Disney ushered in a new era of feature animated films, they did so using the public domain with Snow White. When Disney animation was in a rut, it was a public domain property--Little Mermaid--which helped save it. Of course, Disney has had amazing original creations, too, but they're model always was and continues to be a combination of public domain and original works.

[TheVileOne]

Originally Posted by 88fingers

Good question, Romey. It would certainly be very different. When Disney ushered in a new era of feature animated films, they did so using the public domain with Snow White. When Disney animation was in a rut, it was a public domain property--Little Mermaid--which helped save it. Of course, Disney has had amazing original creations, too, but they're model always was and continues to be a combination of public domain and original works.

And very soon copyrighted works through Marvel Entertainment.

[Matt Hazuda]

Originally Posted by 88fingers

One good example of a public domain-based creation is League of Extraordinary Gentlemen.

Funny you should mention that. Some of the characters in later volumes are actually under copyright still in the UK, so the books can't legally be published there, despite a healthy gray market.

Another Allan Moore title, Lost Girls has the same issue due to utilizing Wendy from Peter Pan, which is owned by that Children's Hospital whose name escapes me.


Another test of public domain came when in the late 80s, Malibu Graphics attempted to print classic Mickey Mouse comics in a comic book titled The Uncensored Mouse, but was killed after 2 issues due to legal challenges from Disney.

Some articles that discuss it:

http://goodcomics.comicbookresources...-revealed-115/ - about 1/3 of the way down

http://jimhillmedia.com/blogs/jim_ko...9/09/1064.aspx Part 1 of 2 of an article about the comic

http://jimhillmedia.com/blogs/jim_ko...9/10/1097.aspx - Part 2 of 2 (not really any legal stuff, just intros for issues that were never published).


The ironic thing in this is that Malibu was eventually purchased by Marvel, who is now about to be purchased by Disney, thus closing the circle

[TheVileOne]

Wasn't Alan Moore unable to use Doctor Fu Manchu for League so he turned it into the Doctor instead?

[Martianinvader]

Originally Posted by 88fingers

As I've said earlier, you can't put the genie back in the bottle once a character has entered the public domain.

It's A Wonderful Life was once in the public domain. Now it isn't. Explain that.

[Old Guy]

Originally Posted by Martianinvader

It's A Wonderful Life was once in the public domain. Now it isn't. Explain that.

In 1993, Republic Pictures, which was the successor to NTA, relied on the 1990 U.S. Supreme Court ruling in Stewart v. Abend (which involved another Stewart film, Rear Window) to enforce its claim to the copyright. While the film's copyright had not been renewed, the plaintiffs were able to argue its status as a derivative work of a work still under copyright.

[88fingers]

Originally Posted by Matt Hazuda

Funny you should mention that. Some of the characters in later volumes are actually under copyright still in the UK, so the books can't legally be published there, despite a healthy gray market.

Another Allan Moore title, Lost Girls has the same issue due to utilizing Wendy from Peter Pan, which is owned by that Children's Hospital whose name escapes me.

Matt, great examples. Things get fuzzy sometimes when crossing international boundaries, since for many years since the 19th century the US has had different copyright terms than the UK and other countries. Peter Pan is especially tricky, because Barrie had granted copyright control to a London hospital which for many years was in control of it. I believe by this point it's either expired in the UK or almost expired--I'd have to check on it, though.

It is confusing--as I say--which is why it's ripe to be used as a smokescreen by corporations or estates. TheVileOne's opinion is if they can manage to have control through those means, more power to them (VileOne, I hope that's a fair paraphrasing). I'm not so sure, when pitting multinational multibillion dollar corporations against artists, writers, independent filmmakers or animators.

[88fingers]

Originally Posted by Martianinvader

It's A Wonderful Life was once in the public domain. Now it isn't. Explain that.

Originally Posted by Old Guy

In 1993, Republic Pictures, which was the successor to NTA, relied on the 1990 U.S. Supreme Court ruling in Stewart v. Abend (which involved another Stewart film, Rear Window) to enforce its claim to the copyright. While the film's copyright had not been renewed, the plaintiffs were able to argue its status as a derivative work of a work still under copyright.

Right--let me flesh that out a little. Even though the film It's a Wonderful Life had gone into the public domain because of a failure to renew (just like with Oswald's first 'toon), there were two elements of it that had been properly renewed: the short story on which the film was based, and the soundtrack to the film. The studio were able to use these to control the use of the film (which was thus a "derivative work" of the story) and, importantly, any further creations using the underlying storyline. So taking our Oswald example, had Oswald the Lucky Rabbit been a children's book before it was a cartoon short (it wasn't, of course, just as a hypothetical) and that children's book was renewed properly even though the first cartoon wasn't, Oswald as character wouldn't be in the public domain. It all comes down to the first appearance of a story/character in its first form, and whether or not the copyright held up. So, it's not that they took a public domain property and re-copyrighted it, It's a Wonderful Life is technically in the public domain as a film, but for all practical purposes it isn't because the underlying story material is under copyright, giving the studio the same level of control as if it had been properly renewed.

It works both ways though. If a source material is in the public domain--like the original Little Mermaid story by H. C. Andersen, you can not re-copyright it by making a derivative work like the Little Mermaid film. Disney can copyright all the "original" elements of its Little Mermaid--Flounder the fish, for example (I think he wasn't part of the original story, but I could be remembering wrong). They can also copyright and control their version and appearance of Ariel--and indeed Disney has sued nursery schools for painting fairy tale characters on the walls that looked too much like Disney's versions.

There is an interesting case involving James Bond in which the character was split up into parts over a rights dispute, which led to the Bond film Never Say Never Again, which brought Sean Connery back at the same time there was already the Roger Moore Bonds, and made by a rival studio. That's yet another complicated can of worms.

[TheVileOne]

Originally Posted by 88fingers

It is confusing--as I say--which is why it's ripe to be used as a smokescreen by corporations or estates. TheVileOne's opinion is if they can manage to have control through those means, more power to them (VileOne, I hope that's a fair paraphrasing). I'm not so sure, when pitting multinational multibillion dollar corporations against artists, writers, independent filmmakers or animators.

Its not fair and you totally ignored my Robert Kirkman/Invincible example. Its not the fault of the corporations or even the creators that copyright law is ridiculously confusing or fuzzy not to mention dealing with other countries that have their own copyright laws.

At the end of the day, copyright does not stifle nor discourage the creation of new art. But if its all about creating art simply then copyright shouldn't matter. Yet artists still want to make money off of their art. So if they want to do that, to pay the bills with their art, they have to be willing to pay the price and go a two way street.

[88fingers]

Originally Posted by TheVileOne

Its not fair and you totally ignored my Robert Kirkman/Invincible example. Its not the fault of the corporations or even the creators that copyright law is ridiculously confusing or fuzzy not to mention dealing with other countries that have their own copyright laws.

At the end of the day, copyright does not stifle nor discourage the creation of new art. But if its all about creating art simply then copyright shouldn't matter. Yet artists still want to make money off of their art. So if they want to do that, to pay the bills with their art, they have to be willing to pay the price and go a two way street.

VileOne, I understood your Kirkman example to say the same thing--if they can manage to extend protection even in extra-legal fashion, more power to them. Here is your quote: "If Robert Kirkman wanted Invincible to stay in his family for the entire history of creation and the universe, and he figured out a way to do that . . . I honestly think that would be alright if that's what he wanted." I still don't see in your second paragraph above that you're saying something different, which is fine, I'm just not sure I agree. It's not a criticism of your position, but please feel free to clarify. Remember, it is the "fault", if we want to use the word, of the corporations like Disney--they've poured millions and millions of dollars lobbying Congress to change the laws. It's very much purposeful.

[88fingers]

By the way, if anyone wants to read how Disney reacts when anyone--even one of their own archivists-- suggests one of their characters might be in the public domain, read this incredible article from the LA Times.