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

[88fingers]

Originally Posted by Ed Liu

Since we are being thorough about this, an amendment to the Constitution is not necessary. I admit that I had overlooked the Copyright Clause when I stated that copyright wasn't mentioned in the Constitution, but it is merely stating that it is the domain of Congress to make laws that pertain to copyright, as opposed to a power reserved for the Executive or the Judicial. It seems to presume that such things as copyright and (by extension) the public domain already exist (although probably not in those terms or as either is exercised today).

However, changing US copyright law doesn't require a Constitutional amendment. That would be equivalent to requiring an amendment to alter the tax code because of the clause at the start of that section of the Constitution that grants Congress the power to lay and collect taxes. If anything in the Constitution applies to the "right" to the public domain, it would probably be amendment 10. ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.") That's often the one cited for a Constitutional right to privacy.

And I'm turning this into a discussion about the Constitution rather than the issue at hand, so, uh, kinda never mind. Carry on.

I am not a lawyer or an expert on the nuances of copyright law, but it seems to me that the public domain is not enshrined as a right in the same way as free speech, freedom of the press, or the right to remain silent.

Ed, the public domain is created by the "limited times" language in the Constitution. That means that copyright has to run out at some point. It is up to Congress to give a specific amount of time for that "limited times," but as long as that is in the Constitution there must be a public domain. You're going to become a Constitutional scholar if you're looking at the Tenth Amendment! The only one that matters here is the copyright clause... anyway, none of this has to do directly with Oswald, since he is in the public domain regardless.

[Mad Mod 49]

Only, Disney didn't get their character back. They only claim they did. Infact, since the late 50's anyone and everyone, and no one as well, all own Oswald. You and I may not like it, but thems are the facts. Disney is lieing, saying they own Oswald, when the do not. That is morally and ethically wrong, and nigh downright evil.

I, for one, don't see Disney as perfect and have had plenty of issues with things they have done, but isn't trying your damndest to portray them as "nigh downright evil" going too far in the other direction here?

I am not a lawyer or an expert on the nuances of copyright law, but it seems to me that the public domain is not enshrined as a right in the same way as free speech, freedom of the press, or the right to remain silent.

QFT. This whole thread is ridiculous; I fail to see how big an offense this whole Oswald thing is.

[TheVileOne]

Originally Posted by 88fingers

I see what you mean, VileOne, but I don't know that the distinction is as obvious as you make it between big corporations and some of those creators. I don't know much about Kirkman, but Siegel, for instance, made millions and millions of dollars and so would not be a good example of the average artist or creator. He or his estate could afford a lawsuit that most people could not.

The Superman creators were destitute according to historians or perhaps I am mixing up Siegel with Schuster.

We might think of this scenario: what if a realtively new animation studio, still gaining its footing financially, chose something in the public domain to make a film out of, and then out of the woodwork some larger, more established entity fraudulently tried to crush them? We might not like the consequences if that studio were, say, Disney, in 1940, had the estate of Pinocchio's creators claimed their creation wasn't in the public domain. This is just a hypothetical, but keep in mind at the time Disney made Pinocchio the book it was based on was less than 60 years old, so under the modern copyright regime it would have remained under copyright for maybe 50-75 years longer.

88films, unless you can come up with a more specific, concrete example I don't really believe in this argument. Did something like the above actually happen at one point in time?

From your hypothetical example, you seem to be taking a route of what's good for the goose is good for the gander. Disney made movies this way, so they shouldn't prevent others from doing so. However, just because Disney was able to take advantage of the system, doesn't mean by your own definition they should have to play fair and open their properties up to everyone else. Like it or not, that's business. People cry foul when Strikeforce runs a big MMA event live on CBS and then UFC decides to run a show on at the exact same time. People say, hey UFC why are you doing that? There's no reason they shouldn't besides the idea in the minds of some fans that UFC should "play fair."

Those of you on this thread who are interested in reading more about the public domain, I'd encourage you to read some of this online book by Lawrence Lessing, a Stanford law school professor, which also covers material about Disney. Just so everyone realizes this, in the community of legal scholars that deal with Constitutional issues related to copyright and the protection of the public domain, Disney is considered the absolute worst offender for the "over-copyrighting" of American culture. My opinions are mild compared to most of theirs. Here is a link if anyone is interested:

http://www.authorama.com/free-culture-4.html

I don't see President Obama or congressman or senators calling Disney's use of their characters or Oswald unconstitutional.

[John Pannozzi]

Apparently, "Steamboat Willie" is public domain in Australia, Canada and Russia.
I've heard that even though the copyright on characters like Mickey will eventually expire, Disney can keep the trademark to Mickey as long as they use him. Does this mean Disney can own Mickey via trademark laws conceivably forever?

[Ed Liu]

Originally Posted by 88fingers

Ed, the public domain is created by the "limited times" language in the Constitution.

Again, it's semantic hair-splitting, but my point is that the public domain is no more created by that statement than the concept of commerce is created by the language that gives Congress the right to pass laws to regulate it. The public domain would have little to no force internationally in the world if it were only created by the US Constitution.

Originally Posted by TheVileOne

The Superman creators were destitute according to historians or perhaps I am mixing up Siegel with Schuster.

Before the 1970's movie was released, Siegel and Shuster had both fallen into poverty. They ultimately got an undisclosed sum annually and permanent creator credits on any adaptations of Superman except toys. I don't believe the exact numbers have ever been revealed, but Gerard Jones' Men of Tomorrow states that the last offer made was $20,000 per year with cost-of-living increases (in 1975) and provisions for the heirs. The book later says that the amount was "reported" to have been more than $100,000 at the time of Siegel and Shuster's passing in 1996 and 1992, respectively. If that number is accurate, that's plenty enough to live comfortably, but nowhere near the "millions and millions" it was suggested they were worth.

All of which brings up another point that has not been mentioned so far, which is the distinction between copyright and trademark. Trademark is to "protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods." Trademarks can be renewed forever as long as the applicable intellectual property is kept in commerce. As an example, Marvel and DC Comics jointly own the trademark on "superhero," meaning that all the guys in capes and tights in Image Comics are not actually superheroes. An indie comic called Super Hero Happy Hour had to change its title because of the trademark. The reason I bring it up is that even if Siegel's heirs reclaim the copyright to Superman and Superboy, there is a limit to how much they will be able to do with either because DC Comics owns the trademark on both.

I don't know the details of the deal made by Disney, but if what they purchased were the trademarks to Oswald the Lucky Rabbit, then it doesn't matter as much that he is arguably in the public domain. Nobody can use him for commercial purposes except Disney. The question then becomes whether Universal had a proper trademark on Oswald, but Mark Evanier points out that Oswald did appear in comics periodically specifically for trademark reasons, and Universal would give Oswald away as a freebie if someone licensed Woody Woodpecker. I suspect very strongly that they did hold Oswald's trademark, if not his copyright.

The other big question I have in all this is why Disney would spend the money and give away a perfectly good sportscaster if all they wanted was to use a character that I'm sure they had someone look up to see if he was in the public domain. It's not like Universal had the resources to turn him into a cartoon star the way Disney would have.

[88fingers]

TheVileOne said "just because Disney was able to take advantage of the system, doesn't mean by your own definition they should have to play fair and open their properties up to everyone else." .... Fine, forget Disney's use of the public domain. If they never used a public domain source in their history, they'd still have to respect the law, wouldn't they? If you think Disney is above the law, I have zero response.

I didn't know Siegel's history, thanks for filling me in. I was assuming wrongly he had amassed more money. However, the fact that his estate had some resources even if not millions does not change the fact that most artists do not have enough funds to fight a corporation like Disney. Part of the point of the public domain is to allow artists and creators that may be working in an experimental venue or fashion, and do not have armies of lawyers, be able to put their own spin on cultural properties.

Ed, the public domain is firmly established and established internationally. There is nobody, even Disney, that has enough nerve to seriously argue there shouldn't be a public domain. The copyright laws are pretty uniform at this point at least in Western countries and all provide for a public domain. I'm frankly pretty shocked that some on this board would prefer seeing no public domain. I just have to believe this is a misunderstanding of the importance it holds: I wish I was better at articulating that. (I also laugh at the poster who thinks this thread is pointless--how many threads on this or any other board I could go on and post a message saying it's pointless--of course, I wouldn't since just because it might be pointless to me to discuss, say, Jimmy Two-Shoes, I can accept it's not pointless to everyone.)

No, trademark would certainly not fully substitute for copyright. Though they are overlapping, they are very different levels and species of protection. As I said in my first posting on this thread, trademark can apply to visual medium even in the absence of copyright, but practically speaking, if a character like Oswald or Mickey is in the public domain but still a trademark, it would mean you couldn't use them as a corporate logo, on stationery, or to sell a product--but it would not prevent the creation of new artistic material using the public domain character. Believe me, if Disney was confident trademark could be used to enforce the same rights as copyright, they would not have gone so beserk at the prospect of Mickey's copyright expiring, since he is fully a trademark.

I'd actually argue even the trademark would be in jeopardy for Oswald, since the trademark has to be in continuous use and certainly has not since the 1950s (that's how many trademark images and words, like "escalator" and "aspirin" which used to be trademarked words, fell into the public domain)

Ed, you ask why Disney would go to the trouble of the Al Michaels "swap." Did you see how much media it got, because of the jokiness of trading a sportscaster for a cartoon rabbit? They got free coverage internationally saying they had the rights to Oswald--when in fact what they had purchased was the physical films and (ostensibly) the trademark. These are important properties to have! But they do not cover the real intellectual property protection, which is in the copyright. I'll tell you who I feel bad for is Al Michaels, whom became the butt of a joke all because (the way I see it, at least) Disney wanted to publicize their propaganda of "Oswald comes home!" Again, I'd love to know how Ub Iwerks, probably the true creator, would feel about that.

[EinBebop]

Originally Posted by TheVileOne

I don't see President Obama or congressman or senators calling Disney's use of their characters or Oswald unconstitutional.

I don't see any of them calling it constitutional. Could it just be that noone's talking about it, and when they do the news doesn't care to report it?

I assure you that the Bono Act was not passed unanimously (voice vote, unfortunately, so we don't get a list of dissenting names), but the argument that it was unconstitutional was strong enough that it went all the way to the Supreme Court, where unfortunately only two justices agreed on that day.

They dissenters may have been in the minority, but they aren't non-existent as you imply.

Is it unconstitutional to circumvent the Constitution? Debatable, but it should certainly concern us that so many of our elected/appointed officials would disregard the clear intent of the Constitution.

[darkdetective]

Originally Posted by Ed Liu

As an example, Marvel and DC Comics jointly own the trademark on "superhero," meaning that all the guys in capes and tights in Image Comics are not actually superheroes. An indie comic called Super Hero Happy Hour had to change its title because of the trademark.

Actually, I believe DC and Marvel jointly own the trademark on "super hero" (and possibly "super-hero") not "superhero", so only they can use to two word version of it, but anyone can use the single word version. Just sayin'

[TheVileOne]

Originally Posted by 88fingers

TheVileOne said "just because Disney was able to take advantage of the system, doesn't mean by your own definition they should have to play fair and open their properties up to everyone else." .... Fine, forget Disney's use of the public domain. If they never used a public domain source in their history, they'd still have to respect the law, wouldn't they? If you think Disney is above the law, I have zero response.

You are twisting the words yet again. I never said I believed Disney was above the law. But if they can use a public domain source, that doesn't mean they can't do anything within the means of the law to change copyright law.

You are mentioning that Disney has made money off of using material that was in the public domain. So by that logic shouldn't they allow their own properties into the public domain so others can use them just as they did? I see no reason that they have to do that in order to be fair. If that's within the law, I see no reason for it. Why does that mean ABOVE THE LAW? If Disney can work to keep their copyright or extend their copyright and its not breaking the law, I don't think that's ABOVE THE LAW.

I didn't know Siegel's history, thanks for filling me in. I was assuming wrongly he had amassed more money. However, the fact that his estate had some resources even if not millions does not change the fact that most artists do not have enough funds to fight a corporation like Disney. Part of the point of the public domain is to allow artists and creators that may be working in an experimental venue or fashion, and do not have armies of lawyers, be able to put their own spin on cultural properties.

All that can still be done without working in the public domain. Once again, copyright does not necessarily prevent new spins on cultural properties.

Ed, the public domain is firmly established and established internationally. There is nobody, even Disney, that has enough nerve to seriously argue there shouldn't be a public domain. The copyright laws are pretty uniform at this point at least in Western countries and all provide for a public domain. I'm frankly pretty shocked that some on this board would prefer seeing no public domain. I just have to believe this is a misunderstanding of the importance it holds: I wish I was better at articulating that. (I also laugh at the poster who thinks this thread is pointless--how many threads on this or any other board I could go on and post a message saying it's pointless--of course, I wouldn't since just because it might be pointless to me to discuss, say, Jimmy Two-Shoes, I can accept it's not pointless to everyone.)

Who here has said there should be no public domain? Can you quote a single post that has said that?

Ed, you ask why Disney would go to the trouble of the Al Michaels "swap." Did you see how much media it got, because of the jokiness of trading a sportscaster for a cartoon rabbit? They got free coverage internationally saying they had the rights to Oswald--when in fact what they had purchased was the physical films and (ostensibly) the trademark. These are important properties to have! But they do not cover the real intellectual property protection, which is in the copyright. I'll tell you who I feel bad for is Al Michaels, whom became the butt of a joke all because (the way I see it, at least) Disney wanted to publicize their propaganda of "Oswald comes home!" Again, I'd love to know how Ub Iwerks, probably the true creator, would feel about that.

Are you Al Michaels lawyer or publicist? 88fingers, the man got to be the voice of the Super Bowl and the Olympics afterward. Yeah, I really wish I wasn't that guy. I can only imagine Al Michaels is crying in his bags and bags of money of being robbed of his dignity and humility of the evil conglomerate Disney.

[88fingers]

Originally Posted by TheVileOne

You are twisting the words yet again. I never said I believed Disney was above the law. But if they can use a public domain source, that doesn't mean they can't do anything within the means of the law to change copyright law.

TheVileOne, I said from the beginning that when Disney lobbies to extend copyright protection in Congress, even though I don't agree with it, that is their right. You are blending all the issues together, though. Forget the copyright extension. The Oswald issue has nothing to do with extending or even changing copyright law, that just came up in the discussion about the way Disney handles these things. The issue of Oswald is plain and simple Disney lying and making fraudulent claims about Oswald's status as their property. Oswald is in the public domain when it comes to copyright and nothing Disney can do changes that. In my book, that is Disney thinking they are above the law that applies to everyone else when it comes to cultural properties.

Once again, copyright does not necessarily prevent new spins on cultural properties.

Nobody said it "prevents" new spins--that is, as along as an artist or creator has the finances and resources to license properties that may be 100 years old or older from corporate entities or estates. The public domain is meant to be what is called a "lawyer free zone" to do much more than "not necessarily prevent new spins on cultural properties"--the public domain is meant to inspire and encourage those new spins. I for one wouldn't want to rely on corporate backed artistic creation for the future of our culture.

Who here has said there should be no public domain? Can you quote a single post that has said that?

Have you been reading the postings? What about the commenter who said she hopes Disney finds a way for Mickey Mouse's copyright to never expire, even if it means amending the Constitution? If copyright doesn't end, that means there is no public domain. And talking about about how Oswald "belongs" to Disney regardless of the public domain status? Which would make public domain meaningless of course. Others talking about how the public domain is meaningless and can be taken away by law? Also, VileOne, you yourself said "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." Your description would imply no public domain and that seems to be something you approve of. It's a position anyone is free to have, it's just one that I happen to think gravely underestimates the importance of the public domain.

Are you Al Michaels lawyer or publicist? 88fingers, the man got to be the voice of the Super Bowl and the Olympics afterward. Yeah, I really wish I wasn't that guy. I can only imagine Al Michaels is crying in his bags and bags of money of being robbed of his dignity and humility of the evil conglomerate Disney.

I was just kidding about Al Michaels, I only half know who he is.

And once again, I never said Disney was evil. Here's what strikes me most about this thread: those who are instantly defensive of Disney because they love Disney's creative side don't seem to understand, in my opinion, the gigantic breach between Disney's creative realm and their business/legal realm. All or most of us here love Disney's artistic legacy and creations or we wouldn't be here. But to give them a pass when their business side engages in ruthless, hypocritical or simply unlawful (whether or not illegal--two different terms) practices, are not doing Disney any favors. It will catch up with them eventually, and impact the creative side. You can believe in the principles of a political party strongly, but if there is corruption by one of its fundraisers those who defend it show they've lost a sense of the difference between loyalty and core values. I believe that's what happens a little bit with those followers of Disney who defend their every action as if Mickey Mouse himself was at the CEO desk.

[88fingers]

By the way, if anyone wonders how Disney would act if the shoe were on the other foot... In 1996, when Disney determined they didn't want to continue paying the estate of the creator of Bambi, they argued in court that the creator failed to properly copyright the Bambi book in 1923 and renew it in 1951 and so therefore it was in the public domain and free for anyone to use. And, incidentally, Disney was wrong, it had been copyrighted properly, it's just that Siegmund Salzman, Bambi's Hungarian-Jewish author, was a bit busy in the 1930s fleeing Hitler, who actually banned Bambi, and part of the copyright registration was slightly delayed.

Nice material to make an argument out of, Disney. By the way, Disney never payed Salzman a penny before his death in 1945. (see my post above about Disney's business side doing a disservice to their creative side)

And a bit ironic in talking about Oswald, whose non-renewal actually does put him in the public domain for the very reasons Disney's lawyers were arguing (but with incorrect facts) that Bambi was in the public domain, so they could avoid continuing to pay Salzman's heirs.

[TheVileOne]

Originally Posted by 88fingers

Have you been reading the postings? What about the commenter who said she hopes Disney finds a way for Mickey Mouse's copyright to never expire, even if it means amending the Constitution?

That doesn't mean I HOPE THERE'S NO PUBLIC DOMAIN. That's a stretch.

If copyright doesn't end, that means there is no public domain.

Disney extending their copyrights does not destroy or mean no public domain. Shakespeare for example would still be public domain.

Also, VileOne, you yourself said "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." Your description would imply no public domain and that seems to be something you approve of. It's a position anyone is free to have, it's just one that I happen to think gravely underestimates the importance of the public domain.

That's what you IMPLIED. That does not mean I said I want there to be no public domain. I simply feel if Kirkman or his family or estate were able to extend the rights on Invincible and if Kirkman could figure out a way to legally keep the property in his family within the realm of the law, I think that's fine. Invincible is his creation. He owns it. So that means he can do with it as he wishes. So that means if he wanted to put it in the public domain as the law states or he worked within the law to extend the copyright I think that's perfectly acceptable.

[Mecha-Daffy]

I wonder why Disney traded Al Micheals contract if Oswald was in the public domain anyway. Because of that, ABC can't broadcast the Super Bowl anymore, one of the biggest TV events of the year. I guess that's the problem with huge companies: mismanagement.

[EinBebop]

Originally Posted by Mecha-Daffy

I wonder why Disney traded Al Micheals contract if Oswald was in the public domain anyway. Because of that, ABC can't broadcast the Super Bowl anymore, one of the biggest TV events of the year. I guess that's the problem with huge companies: mismanagement.

I tend to think there was more to that deal than was made public.

[underdog]

Originally Posted by EinBebop

I tend to think there was more to that deal than was made public.

Agreed. This thread has been overthinking way too much.

[SAMaine]

Originally Posted by John Pannozzi

Apparently, "Steamboat Willie" is public domain in Australia, Canada and Russia.
I've heard that even though the copyright on characters like Mickey will eventually expire, Disney can keep the trademark to Mickey as long as they use him. Does this mean Disney can own Mickey via trademark laws conceivably forever?

Yes, Disney could. That is why that book of Mickey Mouse comics was called The Uncensored Mouse. They were public domain Mickey Mouse comics, but Disney still owned the trademark to Mickey Mouse, so the book couldn't advertise it was a Mickey Mouse book. Disney's lawyers however are good at steamrolling anyone who dares to use their material in legal redtape and fees that no one actually challenges them. Plus, Disney probably has Oswald trademarked at that point and thus can protect him in that manner.

In fact, the whole focus over Steamboat Willie just proves Disney is good at legal and public trickery as the first Mickey Mouse cartoon is in fact Plane Crazy and NOT Steamboat Willie.