This only highlights how the intention of copyright as put forth by the framers has been distorted through the lens of business. Book publishers thought libraries might be a threat to the "modern" publishing industry in the 1800s, just like the movie studios thought home video would kill movies. They were incorrect on both counts, however with the ease and low cost of digital copies, there actually IS a great deal of money to be made without actually doing more work by perpetuating the endless copyright. Given how money focused politicians are, and how much influence business plays with them, its not a difficult argument to make, especially when the argument is money versus the betterment of society and future creativity. One is easily measured now, the other is not easily measured, and only pays off on the scale of decades.
Disney took public domain stories, and made billions by creating their own versions, and now seek to prevent others from doing the same. The estate of Sir Arthur Conan Doyle (who died 85 years ago this month) found only partial relief in the extension of the money machine, with stories and characters before 1923 now in the public domain, and stories after 1923 still under copyright 92 years later! Sherlock has become a huge influence not just in other creative works, but derivative works such as TV shows and movies that pay no royalty to the Doyle estate. Doyle himself was influence by other authors, such as Poe, as well as real people.
The intent of copyright was to give limited protection to the creators of creative works, because while society as a whole benefits from the arts, it can only occur if there is a benefit to the creators. So we gave them a limited monopoly, just like patents, to enjoy the fruits of their labors before they became part of society as a whole. Few artists want to create works that only a select few can enjoy, however the financial interest is in doing just that. Just as software patents threaten our industry (and patent abuse on the whole threatens many industries), copyright abuse threatens the enrichment of society as a whole. We do not own our children, we only raise them for a while and unleash them into the world. The same is true with art. That is the way it was meant to be.
Disney took public domain stories, and made billions by creating their own versions, and now seek to prevent others from doing the same.
Well no. You could go out tomorrow and make your own movie of Snow white, or Beauty and the Beast or some other public domain story, and many people have. What Disney work so hard to do is prevent its particular versions of various from falling into the public domain. Now I think they're missing a trick insofar as they would still be able to sell Official Disney Versions even if their famous animated movies went into the public domain tomorrow, because they have the best marketing operation on the planet (so kids would demand 'the real one') and they could keep adding more content (eg additional 'making of' documentaries and so other extra features that serious fans of a film will pay to watch).
I'm in broad agreement with you, I just want to be clear that when Disney makes a film out of a folk tale or so it is not claiming property rights over the source material, just the firm's own rendering of it.
The problem with this argument is simply by being the first a lot of the 'natural' story > movie translations seem to fall under copyright. While copyright does not extend from say StarWars Lightsaber to all light swards nobody is going to make a major movie that comes close to Disney’s copyright. So, the chilling effect is much wider than you might first assume.
EX: Sure, Android > droid is a natural and obvious adaptation, but good luck defending that in a movie with light swards and magic.
I don't fully understand your post so I'm not sure if this will be on point, but if by 'natural story' you mean something like the sequence of plot events or so you could easily refer back to the original fairytale source to refute claims of infringement based on ''natural' story > movie translations.'
His point is that, when you translate a tale to a feature film, you're going to need to make certain adaptations. Many of those changes are quite natural, and several writers doing the same adaptation work would arrive at those same changes. But whoever was first to the party can claim copyright on the new version, so anybody else coming afterwards won't be able to resort to those same changes, obvious though they may be (unless they can somehow prove they've never watched/heard of/had any contact with the older film).
And my point is that that's not really so. If the adaptations are indeed 'natural' (eg a Snow White scene where the Evil Queen consults the magic mirror about who is the most beautiful and the mirror affirms that she is, followed by another scene where the mirror identifies Snow White instead), then I say that's certainly defensible in court. Disney doesn't have first dibs on the idea of an Evil Queen with a magical talking mirror, seven dwarfs who live in a little house and so on. Anyone can use those elements. What you can't do is call your seven dwarves Happy, Grumpy, Dopey etc the way they are in the Disney movie, as those don't appear in the original story.
This sounds very much like an argument about clean-room reverse engineering as a defense to claims of copyright infringement. But that's a totally different situation.
Retric mentioned the term "chilling effect," which is certainly relevant here. Wikipedia defines chilling effect as "the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction."
You're probably right that such an adaptation would be deemed not infringing on Disney's copyright by a court. The issue is that a studio might not have the resources necessary to make it that far into the legal process. In that case, the choice is either make the movie, and risk going out of business if Disney brings a lawsuit, or not make the movie. Legal issues aside, which do you think they're going to pick?
Well, Disney released Snow White in 1937, and the Brothers Grimm version had been published in 1812. So the story was 125 years old at the time Disney published the film, and the Disney film has been copyrighted for 78 years.
Again I'm not endorsing Disney's copyright practices here but let's keep the discussion grounded in fact, shall we?
Well, his comment isn't that all the stories, or even or that Snow White specifically, were 40-50 years old. There are examples that better fit his argument, and they are not hard to find(I used wikipedia):
Pinocchio, released on 1940, was based on a novel from 1883, 57 years, then. Disney also tried to avoid Bambi copyright (book from 1923, movie released on 1942, 19 years difference), although the court did not uphold its public domain status.
He surely could have referenced better, but I do believe you should have tried to interpret better his comment instead of nitpicking and being unnecessarily aggressive.
Fair enough, but I don't feel any obligation to make his argument for him, and the original claim that I first replied simply seems mistaken to me - and that's not me being uncharitable, because there are other people building new arguments on that incorrect understanding elsewhere in this thread.
Frankly, I think part of the reason there has been so little progress in reverting to more sensible copyright terms is that many opponents of the current standard don't bother to fact-check their arguments, and so they damage their own credibility. Copyright is a political issue, because when we advocate shorter copyright terms we're arguing to reduce the scope of a property right. Inaccurate or hand-wavey arguments work against that end.
You're right about the age of Snow White, but things aren't always that rosy for Disney. When they made a film from Kipling's The Jungle Book, that book was 73 years old. If Walt (who took strong personal interest in the project) felt comfortable making money by adapting a work that old to a new medium, why shouldn't I feel comfortable adapting his even older older works?
What I think he meant, at least if I understood correctly, is that Disney stories and characters from the 30s and 40s, like Mickey Mouse et al, should themselves by all rights be public domain by now, like Snow White or Cinderella were, so that other artists could be inspired by them and create their own derivative works.
My read is that your argument about the characters Disney appropriated misses the point about those it's created. A curious asymmetry of sharing, etc., etc.
Or, in other words, your post above is a strawman / red herring (though a frequently encountered one).
I don't quite get what you mean, and amn't familiar with your 'curious asymmetry' reference off the top if my head.
I have repeatedly said that I favor shorter copyright terms (which would allow Disney creations to fall into the public domain) and acknowledged as much above so I really don't see why you think it's a straw man argument.
BTW I may be gone a couple of days this w/e and won't be able to follow up but you could email if you prefer.
Disney benefitted from a rich public domain as a consequence of copyright policies of the preceeding 200 years or so (Statute of Anne, precoursor of US copyright law, 1710).
It proceded to destroy the public domain as a result of its support of both ever-longer copyright duration, and more broadly scoped holders' rights, over the 20th century:
Under the 1909 act, in existence when "Steamboat Willy" was released in 1928, copyright's maximum term was 54 years (27 year initial, one renewal), and that required both registration and notice.
Today it's 95 years from creation.
Disney could not only use characters, but quote at will and length with no fear of infringement from any prior work which was not both registered and noticed, or any work whose initial 27 year term had lapsed, or, with no concerns at all, any work at all published prior to 1874.
Today's authors have none of these freedoms. Twenty-seven years ago was 1987. Fifty-four years ago was 1961. Neither of those are "free to use by" dates. Rather, any work published from 1923 onward may* be under copyright, and copyrights are routinely asserted on works first published long before then (most notoriously the song "Happy Birthday", whose first version was published in 1893). Its status is currently being litigated.
Yes, people can and have, I never claimed they couldn't. However if Disney feels your version is too close to theirs, they'll sue. And with their war chest, your version can be a lot further from theirs than theirs can be of yours, because they can out litigate you.
Yes, they take PD works and create their own versions. They then are grossly overprotective of them. They've sued people for creating characters and costumes only vaguely similar to anything Disney specific versions of characters (including suing the Oscars!), as well as heavily lobbied congress for extensions to copyright. To claim Disney is anything other than very aggressive in their "defense" of infringement is to ignore their history.
'and now seek to prevent others from doing the same' certainly reads tome as a claim that they couldn't, and some else in this discussion interpreted as a fact. I'm not endorsing Disney's general copyright policy, just correcting a possible misunderstanding about a specific claim.
In an ironic twist, Sherlock Holmes (the core stories by Sir ACD) is no longer under copyright in the UK. It's the USA where the last few stories (in Casebook) are still under copyright.
I promise you the claims was to protect Steamboat Willie (which isn't even commercially exploited by Disney) but the goal was to protect Snow White, Sleeping Beauty, etc. they could still have protect the name under trademark, the argument about the film itself was just nostalgic subterfuge.
The NPV of Disney selling copies of its early movies is tiny. Ignoring the things like Saludos Amigos, most kids today aren't really that interested in watching Dumbo.
But Disney needs to make sure that if you want to visit Sleeping Beauty's Castle, you need to go to Disneyland.
Copyright is a too-broad tool for this, but trade mark doesn't quite cover it.
Which Disney has used in new creative works putatively to have a new Copyrighted work which will continue to hold their Copyright on the mouse if they fail to get a copyright extension through Congress. It really is messed up.
I meant "inspired by" or something of that ilk. The point is that culture is derivative and Steamboat Willie wouldn't have existed without Steamboat Bill. Everything is a remix.
The Little Mermaid, Sleeping Beauty, Little Red Riding Hood, Cinderella, The Ugly Duckling, Three Little Pigs, Snow White, Alice in Wonderland, Peter Pan, Beauty and the Beast, Alladin, The Princess and the Frog, Frozen.
I didn't mean to infer that Disney stole Sherlock, but instead to demonstrate how ridiculously long copyright terms are still encumbering stories 85 years after the death of the author and up to 92 years after their creation.
Alice in Wonderland was published in 1865. In 1923, 58 years later, one of the first cartoons produced by Disney was Alice's Wonderland. In 1924 - 91 years ago - he made another Alice movie. That second movie is still under copyright, due to Disney lobbying, and will continue to be so until 2019.
Disney made his money ripping off Lewis Carroll, but taxpayers have to pay to enforce the rights on the works he ripped off 95 years after the fact.
There is absolutely nothing stopping you or anyone else making a film, animated or otherwise, of Alice in Wonderland. Disney categorically do not own copyright to the original work. There have been over 30 non-Disney adaptations of Alice in Wonderland since the 1951 Disney version, as well as 2 more works by Disney.
Since Lewis Carroll's original work had gone into the public domain, it is a misnomer to say that Disney "ripped it off". Anyone can take a public domain work and monetise it. That derivative work may be copyrighted, much like the performance of a Beethoven symphony (are the orchestra ripping off Beethoven?) or the performance of a Shakespeare play (again, are the actors, producers and directors ripping off Shakespeare?).
You seem to find the money side distasteful, which is a different argument. The issue here is that the Walt Disney Company, who ultimately own the copyright to the derivative work, maintain their copyright. Yes, copyright laws need re-examining in a world where corporations own copyright, but it's far more nuanced than you are making out.
No it doesn't, such a claim would be laughed out of court. Where did you hear this? Are you not aware that there have been other non-Disney versions of Snow White?
I t is worth noting that only one of those three 2012 works uses the term "snow white" (in the title) and they prefix it with "Grimm's [Snow White]" which automatically counters any claim by Disney that Disney's trademark is being appropriated.
Note that the "registration date" for the RTM [which I'm assuming is the date at which the registration becomes active, please correct if wrong] is 2013 - how the hell did Disney get a RTM on "Snow White" it doesn't indicate origin, it's a traditional story character. The only way it could genuinely be a trademark would be if it were used in a way completely unrelated to the character or story.
Because trademarks are different from copyright, in law and in practice. 'Google' is a trade mark even though it's just a homonym of 'googol,' a word from the dictionary. You can trade mark almost anything and if you can show you have been using the mark in commerce in a meaningful way then you can stop other people from using it in an infringing way - and you have to make an attempt to do so, or face possible future claims of trademark abandonment. Registration of a trade mark is prima facie proof of ownership and also allows you to collect statutory rather than just economic damages.
The only way it could genuinely be a trademark would be if it were used in a way completely unrelated to the character or story.
Who told you that? It's wrong, wrong, wrong. Trade marks and copyright are totally separate beasts and bringing up TM issues in a discussion of copyright only confuses people.
You can't use common words in a field as registered trademarks. They can be used as trademarks by a company. The purpose of a trademark is to indicate the origin of goods and services - thus sane trademark registration requires that a mark being registered meets certain basic requirements. One of those requirements is that a mark not be a common term in the field. A trademark has to be distinct.
Google is distinct in the field of search engines as it's both a neonym (ie neologism, made up word) and a word that is not especially pertinent to the particular field of commerce. That is why it's Google and not Googol, neologism's are better because it's far easier to establish uses that are infringing.
You /can/ use almost anything as a trademark but there are restrictions on what can be a registered trademark.
So back to Disney.
"Snow White" shouldn't be allowed as a trademark as it's a traditional term in the fields of story telling/movies/cartoons/fiction. Just as a fruit sellers can't have [the word mark] Apple as a registered trademark so too it is normal to reject marks that would prevent people from merely describing their goods (as opposed to indicating the origin of those goods [or services]).
Thus to my "wrong, wrong, wrong" statement - Snow White is a perfectly good mark outside the fields of fiction, eg for a hair care product. But allowing the registration of a mark for a Nice class in which that word is widely used descriptively is insane. "Snow White" can only practically indicate the origin of goods/services outside the field of fiction/media.
>Trade marks and copyright are totally separate beasts
Except in these instances they're not. Because trademarks don't expire (as long as you pay renewals and manage to avoid genericisation, etc.) then a common method of protecting copyright works as they pass in to the public domain is to use RTMs to bind as much as possible of the IP away from the public domain; eg getting RTMs on character names. This way it is more risky for firms to sell the now public works and the ability to create franchises and such is made far harder - you can create a new Snow White series and use "Snow White" descriptively but then you attempt to create merchandise and oh look Disney own the names of your central characters.
"Snow White" shouldn't be allowed as a trademark as it's a traditional term in the fields of story telling/movies/cartoons/fiction.
You are of course entitled to that opinion but the fact is that the USPTO decided otherwise. When I say you are 'wrong, wrong wrong' it's because I am talking about how things go in the real world rather than how they should go in the ideal world.
My knowledge of the USC is admittedly weak, I know a bit more about EU/UK trademark laws but they do work largely in the same manner, I am just an interested bystander (but have previously worked in IP).
What I meant by "Snow White" shouldn't be allowed as a trademark" is that it shouldn't be allowed to be registered by the USPTO because it contravenes the requirement in the USC that the mark be distinctive. 15 USC 1127 says this about service marks:
>"The term “service mark” means any word, name, symbol, or device, or any combination thereof—
>"(1) used by a person, or
>"(2) which a person has a bona fide intention to use [...] to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown. Titles, character names, and other distinctive features [...]" (USC, eg from https://www.law.cornell.edu/uscode/text/15/1127) //
Note that character names are specifically included _when_ they "identify and distinguish the services of one person, including a unique service, from the services of others". In terms established in case law that means a descriptive mark must have acquired "secondary meaning" by use that establishes it as uniquely identifying the services of the registrant in order for the mark to be distinctive and so qualify for registration.
In the real world the USPTO should adhere to the USC as much as in my imagination and failure to do so is contrary to the rule of law. In my book that makes USPTO "wrong, wrong, wrong" but you're entitled to disagree.
You could also plainly look to 15 USC 1051(b)(3)(D) and see that Disney perjured themselves in applying for the mark as "to the best of the verifier’s knowledge and belief, no other person has the right to use such mark in commerce either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods of such other person, to cause confusion, or to cause mistake, or to deceive" can not be claimed of the name of a story character that is in common use in other people's products and to refer to other people's products, eg [Grimm's] Snow White.
Do you also support closed source software companies being able to rip off any open source code released under a copyleft license? Because the legal recourse offered to them relies on the same mechanism.
I'm not lo_fye, but in my opinion, if we can get full elimination of copyright (and software patents, must be both), the trade is absolutely worth doing, even though I currently license my own work as AGPL.
If source code is no longer copyrighted then all software is at least free-as-in-beer as well as free to be decompiled and reverse-engineered. Source code would presumably be something along the lines of a trade secret, but it would be incredibly easy to rip off unless you compartmented access to a degree that completely kneecapped development.
And being real honest here, if closed-source companies want to rip off ideas from open source, they go right ahead and do it. A lot of time they will even go ahead and rip off the implementation/source too. Occasionally they get caught but it's rather difficult to identify violators. Once you do so you need to out-lawyer violators who have significantly deeper pockets than the FSF.
Whether or not society would be better off without copyrighted software is left to the opinions of the reader - but I think it's absolutely undeniable that open source development would gain an immense competitive advantage compared to an infinitesimal gain by closed-source development.
I'm not a huge fan of copyright, but I wholeheartedly disagree with this analysis. The clause providing for copyright is an Article I, Section 8 clause. Generally Speaking (except for the post office) the AIS8 duties have legislated details, but execution is left to the executive branch. For example, the USPTO is part of the department of commerce. It's not clear as to why the copyright office, which is justified in the same clause that justifies the PTO, shouldn't be part of the executive branch.
"Enjoy Free Music without getting in trouble
by downloading the legal MP3s that many musicians provide
as a way to promote themselves."
I wrote this in response to the RIAA's effort to convince the public that all music downloads are legal. You can download anything you want provided you have permission of the copyrigh holder, it is in the public domain or local laws permit it.
The RIAA responded by publishing their own legal music downloads list. They were all sites that carried tracks from the major labels. As that page was effectively giving my own free advertising they took it down after a few months.
I need to verify and update the links, I have that written down on my ToDo list. Maybe Tomorrow.
Disney took public domain stories, and made billions by creating their own versions, and now seek to prevent others from doing the same. The estate of Sir Arthur Conan Doyle (who died 85 years ago this month) found only partial relief in the extension of the money machine, with stories and characters before 1923 now in the public domain, and stories after 1923 still under copyright 92 years later! Sherlock has become a huge influence not just in other creative works, but derivative works such as TV shows and movies that pay no royalty to the Doyle estate. Doyle himself was influence by other authors, such as Poe, as well as real people.
The intent of copyright was to give limited protection to the creators of creative works, because while society as a whole benefits from the arts, it can only occur if there is a benefit to the creators. So we gave them a limited monopoly, just like patents, to enjoy the fruits of their labors before they became part of society as a whole. Few artists want to create works that only a select few can enjoy, however the financial interest is in doing just that. Just as software patents threaten our industry (and patent abuse on the whole threatens many industries), copyright abuse threatens the enrichment of society as a whole. We do not own our children, we only raise them for a while and unleash them into the world. The same is true with art. That is the way it was meant to be.