John Oliver Pokes Disney With A Big Stick; Starts Using 1928 Mickey Mouse A Year Early

from the public-domain-food-fight dept

Look, we all knew that there was going to be a lot of fuss about the upcoming public domaining (finally!) of Mickey Mouse nine months from now on January 1, 2024. I mean, we’ve already been talking about what next year’s public domain game jam is going to look like with Mickey as one of the options.

If you somehow have been living under a rock and never read anything on Techdirt before, let’s get you up to speed. Mickey Mouse debuted as Steamboat Willie in 1928. The character was a blatant animated copy of Steamboat Bill, a Buster Keaton silent film that came out… the same year. Disney, of course, also built up much of its success by taking public domain stories and animating them.

But, of course, once Disney became the Walt Disney Corporation, it chose to lock up everything it could. Disney has been absolutely famous for its aggressive copyright lawyering for years, which included what we’ve referred to as the Mickey Mouse curve: every time Mickey Mouse started to get near the public domain, a purely coincidental thing happened where Congress would (totally unrelatedly) extend copyrights:

The last extension, the 1998 Sonny Bono Copyright Term Extension Act was quite frequently referred to as the Mickey Mouse Protection Act.

Over the last few years there remained concerns that Disney would try to extend copyrights once again, but I think once the public rose up against SOPA in 2012, Disney and most of the rest of the copyright legacy players realized that there was no chance they were going to extend terms again. Hell, even Maria Pallante, one of the more extreme copyright maximalists (currently trying to kill libraries) while she was head of the Copyright Office, suggested that maybe it was time to cut back on copyright terms, rather than extend them.

And so, everyone has more or less accepted as fact that the Steamboat Willie version of Mickey becomes public domain next year. Even leaving aside the weird series of articles that showed up in the middle of last summer whining about how awful it is that Disney will “lose” Mickey, there are still some concerns about Disney lawyer fuckery on the way.

Again, many of you know this already, but just to be clear: the only thing that’s going into the public domain is the 1928 version of Mickey, which you can see here:

It’s not quite the iconic version of Mickey from today, though it’s not that far off. But, Disney will still hold the trademark on Mickey, which could limit how it’s used in commerce (in theory, it should only limit uses where someone is confusing people into believing their Mickey-related product is from or endorsed by Disney, but theory doesn’t always match reality when these things go to court).

But, as we discussed earlier this month, Disney has already been quietly making some moves that suggest it’s going to try to use trademark law as ridiculously as it can:

In 2007, Walt Disney Animation Studios redesigned its logo to incorporate the “Steamboat Willie” mouse. It has appeared before every movie the unit has released since, including “Frozen” and “Encanto,” deepening the old character’s association with the company. (The logo is also protected by a trademark.) In addition, Disney sells “Steamboat Willie” merchandise, including socks, backpacks, mugs, stickers, shirts and collectibles.

Either way, we expected that there’d be some legal shenanigans worth paying attention to next year. I also thought that maybe some people or small companies without good lawyers might accidentally jump the gun a bit and do something in December.

But… what I did not expect was that John Oliver and the folks at Last Week Tonight, an HBO show currently owned by cost-cutting Warner Bros. Discovery would say “fuck it” and start using Mickey Mouse… now.

I mean, I shouldn’t be surprised. Half the time I think Oliver’s show is basically Techdirt-but-if-funny,-entertaining,-and-clever, with the way he seems to cover the same topics we’re always covering, but, you know, better (mostly). And, Oliver has become somewhat famous for poking the eye of his own corporate masters (quite gleefully).

It absolutely would not have taken me by surprise if Oliver had done this nine months from now once Mickey is officially in the public domain. But… jumping the gun like this? That still surprised me.

The bit is, as you’d expect, hilarious. It starts with a discussion of the horror film, Winnie the Pooh: Blood and Honey, which, as you know, is building on a work that entered the public domain last year. But then moves on to Mickey. He talks about Mickey going into the public domain next year, highlights the litigiousness of Disney over Mickey (including legal crackdowns on a gravestone and a daycare center using images of Mickey) before noting he’s not going to wait to use it himself.

On top of which Disney has registered trademarks related to Disney, which don’t expire. In fact, some have speculated that might be why Disney redesigned its animation studios opening logo to incorporate the Steamboat Willie Mickey Mouse.

And it does feel like a tactical legal move. Basically, they may argue that this early Mickey image is so closely associated with their company, that people will automatically assume that any image of him was produced or authorized by them, and still take legal action.

So the fact is, anyone wanting to use the Steamboat Willie Mickey Mouse, will probably still be taking a risk. 

But… if you know anything about this show by now… you know, we do like to take a risk every now and then. And there’s a lot to be said for beating the rush to capitalize on Mickey that will be starting next year.

So, tonight, I’d like to preview for you, our brand new character on this show, Mickey Mouse

He introduces some new, um, catch phrases for Mickey including “where’s Shelly Miscavige?” (a running… sorta… joke on the show about the missing wife of Scientology leader David Miscavige), “Jeffrey Epstein didn’t kill himself,” and “I hope Henry Kissinger dies soon!”

As Oliver says:

You know, the nice thing about characters entering the public domain is that you can do new, interesting things with them. 

This is true. It’s why we celebrate the public domain every chance we can (psst, have you checked out the entries in this year’s public domain game jam?)

Mickey then asks John about the fact that he’s not actually in the public domain yet, and John doesn’t seem too concerned:

Mickey Mouse: I thought I wasn’t public domain until next year!

John Oliver: That’s actually true, buddy, we are pushing the limit a bit here. Actually, come to think of it, is your voice public domain yet?

Mickey: I guess you’ll find out!

John: Yeah! I guess we will!

He then decides to provoke Disney even more.

And I know, Disney’s lawyers might take the trademark angle and argue that this Mickey is closely associated with their brand. Although they should know that he’s pretty closely associated with our brand now too. And not just because I have a general vibe that screams 95-year-old rat-faced idiot, but also, because the Steamboat Willie Mickey has actually been in our opening credits since the first show of this season…

And then… even more.

And I don’t doubt that Disney has some other legal arguments up their sleeve, but we’re only likely to find out what they are if, and when, then sue. So, you know what? Let’s take this up a notch. Come say ‘hi’ Mickey!

And… out comes a Steamboat Willie Mickey in a costume to say his catch phrases to Oliver:

And, from there, he promises that as of January 1st, this costume will be available for all sorts of events (“birthday parties, theme park openings, funerals, sex dungeons, whatever you want.”)

So… now the question… does Disney actually do anything? Do they call up Warner Bros. Discovery and say WTF? Or do they send in the lawyers? I guess we’ll find out!

Oh, and John, if they do send in the lawyers, your own lawyers might want to look more deeply into reports that turned up 15 years ago that Disney’s lawyers, way back in the early days, fucked up the registration and don’t actually hold any copyright on Mickey Mouse at all. That’ll be fun.

Filed Under: 2024, copyright, fair use, john oliver, mickey mouse, public domain
Companies: disney, hbo, warner brothers discovery

One More Year Until Steamboat Willie’s Mickey Mouse Enters The Public Domain: Will Mickey Really Be Free?

from the free-mickey dept

As you’re probably aware, now that it’s January, we’re running our annual public domain game jam, for games based on works from 1927. This is the 5th year we’ve done this, ever since the public domain (finally) returned to the US after decades with no works ever reaching the public domain, due to never-ending copyright term extension. Many people have noted that the terms seemed to extend just as Disney’s Mickey Mouse was about to enter the public domain. And while some scholars dispute the claim that Disney was the main lobbying force behind extensions, it’s uncanny how often the extensions seemed timed to Mickey’s unshackling.

A few years ago, though, it became clear that even Disney had given up on the idea of copyright term extension in the US (elsewhere, however…). After all, even one of the most extreme pro-copyright Copyright Registrars had suggested that perhaps it was time to scale back copyright terms (though only in the slightest of ways). The battle over the Sonny Bono Copyright Term Extension Act, followed by the battle over SOPA has (at least) taught the legacy copyright industries that they can’t just slip through never-ending extensions any more.

That didn’t stop a weird flood of articles last summer bemoaning the horror that would come from Disney losing the copyright on the Steamboat Willie version of Mickey Mouse, as it’s set to do on January 21st, 2024. Right before the New Year, the NY Times had a slightly more balanced article looking at what to expect on the freeing of Steamboat Willie Mickey in one year’s time.

For the first time, however, one of Disney’s marquee characters — Mickey himself — is set to enter the public domain. “Steamboat Willie,” the 1928 short film that introduced Mickey to the world, will lose copyright protection in the United States and a few other countries at the end of next year, prompting fans, copyright experts and potential Mickey grabbers to wonder: How is the notoriously litigious Disney going to respond?

As the article notes, this definitely isn’t a free-for-all for Mickey. The Steamboat Willie version is quite different from the Mickey most people know of today. It is true that Disney won’t be able to stop people from showing or sharing the original animation, but the company itself put it up on YouTube well over a decade ago anyway, so it’s free for all to see.

But there are other parts of the article that clearly suggest that Disney is prepping itself to use trademark law to scare off would-be adapters. This has always been something of a concern, and the article suggests that Disney itself has been quietly getting things ready for this kind of legal attack. As we’ve explained dozens of times, trademark and copyright law are different. Trademark law is really about not confusing or tricking the consumer into believing a product was made by someone else. So, really, the issue is in not making content that anyone might think would have come from Disney, which might wipe out a fair bit of content, but still leave plenty of open space.

But, also, trademark is about commerce, and the trademark holder has to be making use of the trademark in commerce in order for it to remain valid. But, as the article notes, over the past fifteen years or so, Disney has been gradually ramping up its commerce related to the Steamboat Willie version of Mickey.

In 2007, Walt Disney Animation Studios redesigned its logo to incorporate the “Steamboat Willie” mouse. It has appeared before every movie the unit has released since, including “Frozen” and “Encanto,” deepening the old character’s association with the company. (The logo is also protected by a trademark.) In addition, Disney sells “Steamboat Willie” merchandise, including socks, backpacks, mugs, stickers, shirts and collectibles.

My sense is that Disney will be cautiously litigious around Mickey. That is, I’m guessing that the aggressive IP enforcement team will be told not to go after just random uses of the Steamboat Willie version of Mickey, but anything borderline will bring down the lawyers screaming trademark infringement.

Of course, there’s another side to this not covered in the NY Times piece, which is that it’s unlikely Disney’s copyright in the Steamboat Willie version of Mickey is even valid in the first place. Beyond the fact that Steamboat Willie was a parody of Buster Keaton’s Steamboat Bill Jr. (which came out just a few months earlier, and will also be going into the public domain next January), a bunch of researchers have found pretty strong evidence that Disney screwed up the copyright filings for the film anyway, meaning it likely technically went into the public domain decades ago. It’s just that no one wanted to fight Disney’s litigation team on it.

Filed Under: copyright, mickey mouse, public domain, steamboat willie, trademark
Companies: disney

Why Is Media Lamenting Disney’s ‘Loss’ Of Copyright Instead Of Celebrating The Public Domain?

from the mouse-party dept

There’s something odd going on in media reporting on the expiration of Disney’s copyright on the initial version of Mickey Mouse that is set to occur in 2024. Given the subject matter, we’ve talked Mickey Mouse quite a bit on this site, specifically noting the “coincidence” of copyright term extensions that have occurred roughly each and every time Disney’s copyright was about to expire. The context in this throat-clearing is, essentially: Mickey Mouse should have been in the public domain years and years ago but isn’t because Congress keeps extending the term so it never occurs.

Well, while some are theorizing that the odd spate of media posts we’re suddenly seeing now about how Mickey’s earliest versions are going into the public domain soon is part of some campaign to extend copyright terms again, there is actually very little evidence for that. But what I found interesting about these stories is how many of them were framed: lamenting the loss of Disney’s copyright instead of celebrating the addition to the public domain. Here is one example, headlined Disney Might Lose Copyright To Mickey Mouse As First Version Of Iconic Character Reached Public Domain In 2024.

First, that headline sucks. Might lose? Will lose, actually, unless Congress quickly extends copyright terms. Second, get a sense of how this is all framed with this quote as an example.

But sadly, the first version is going to enter the public domain very soon. The silver lining is that Disney might still hold on to some rights if they can make a trademark of the first Mickey Mouse version, states a report by Deutsche Welle.

What fresh bullshit is this? Disney got sweetheart deals in the form of extensions in copyright terms over and over again, and now we’re “sad” that those sweetheart deals have run their course? And why is it a silver lining that Disney still gets to control subsequent versions of the character for the extended absurd lengths of time? What is with all the hand-wringing here?

This isn’t the only terrible framing at work here. Other outlets are including input from folks reminding people that Disney still has a trademark on Mickey Mouse and how that will allow the company to still bully and control others’ use of the character.

Meanwhile, Daniel Mayeda from the UCLA School of Law told The Guardian: “You can use the Mickey Mouse character as it was originally created to create your own Mickey Mouse stories or stories with this character. But if you do so in a way that people will think of Disney—which is kind of likely because they have been investing in this character for so long—then in theory, Disney could say you violated my trademark.”

No! That isn’t how this works. Trademark law was not intended as an end-around an expiring copyright term. No amount of investment in Mickey Mouse allows Disney to control the fact that the Steamboat Willie version of Mickey Mouse will be in the public domain. And suggesting otherwise is irresponsible. I have no doubt that Disney will try to do this, but it should fail on the merits.

And the larger point is that all of this worry and dismay over one version of Mickey finally(!) entering into the public domain is absurd. Why is the framing in these posts all about Disney “losing” something rather than the public, literally all of us, gaining something. That’s the entire damned point of the public domain and it seems there are a lot of media outlets out there that can’t grasp the concept.

Filed Under: copyright, mickey mouse, public domain, trademark
Companies: disney

How Not Overly Enforcing Its IP, Universal Made The Minions Ubiquitous And Beloved

from the building-bigger-markets-through-allowing-piracy dept

No one is ever going to confuse Hollywood giant Universal Studios with, say, EFF’s view on more permissive copyright. However, Polygon recently had a really interesting article on how Universal’s comparatively minimal focus on cracking down on the incidental (and fun) uses of its Minions characters have made the characters well known, ubiquitous… and well loved. And, as the article notes, a hell of a lot more relevant today than Mickey Mouse, owned by Disney — which is famous for its unwillingness to allow anyone to make use of its characters.

And they’re almost certainly on the walls of a number of day care facilities. Universal Studios — parent company of Illumination, the animation studio that blessed us with Minions — did not put them there. The Minions aren’t public domain. But you wouldn’t know it by the many ways people have taken ownership of them. And Universal’s comparatively hands-off attitude toward Minion litigation has arguably paid off — by making them as recognizable and culturally front-and-center as Mickey, if not more so.

I take a little issue with the framing of the article, which calls them “practically public domain” because clearly they are not, and Universal certainly has its own long history of being copyright bullies.

But there is a big lesson to be learned here. By deciding not to enforce every use, by not freaking out that someone else out there is having a little fun with your characters (there’s no way I’m calling it “your IP” because fuck that), Universal has actually made its characters more relevant than perhaps the most well known cartoon character of the 20th century.

Disney, of course, has a long history of locking up culture rather than freeing it:

Disney’s playbook has always been to rewrite public domain fairy tales into copyrighted versions, then mold an ecosystem where any other adaptation of the original story comes off as the bootleg. When Disney was able to lobby Washington to extend its copyrights on its trademarked characters in 1998, it was after the studio returned to the zeitgeist with a new generation of uber-popular rewrites of other people’s stories: The Little Mermaid, Beauty and the Beast, and Aladdin.

And, as the article notes, Universal comes out of that same basic tradition of locking up culture:

And Universal has a similar history as a studio. It kicked off its success with a string of adaptations of classic horror stories through the 1930s and 1940s: Dracula, Frankenstein, The Wolf Man, The Invisible Man. Many of these stories are in the public domain, but Universal retains the rights to its own iterations, which have become the canonized versions in the public imagination.

And, yes, somehow, over the last few years, by taking many of the traditional copyright shackles off of the Minions, it’s actually helped Universal a lot more than it’s hurt the company:

And as this is all happening, the Minions continue to spread across murals, memes, and the internet at large, still smelling like the tube they were squeezed from. They’ll continue to belong to Universal Studios for many years. But in their case that seems functionally irrelevant. How would it look any different if the Minions were public domain? There is nowhere that the Minions are not.

Indeed, the article makes a point that we’ve been trying to make for decades: often times, when the so-called “infringement” is coming from your biggest fans, they’re actually providing you with free marketing for your underlying product.

Just as Frankenstein gives Universal Studios permanent real estate on a chunk of the public consciousness, the unchecked spread of the Minions has vastly increased awareness of Illumination’s work, paving the way for Despicable Me and its spinoffs to steadily continue their advance in a world where the entire internet seems willing to handle Universal’s marketing efforts for free. It suggests that the money, clout, and nostalgia forged from ubiquity can outweigh — or at least significantly amplify — the dollars reeled in from toy sales alone. Maybe Universal has created a monster it cannot control, or maybe it just doesn’t want to. Either way, it’s mastered the process of profiting from that monster’s ever-expanding adventures.

Unfortunately, the article doesn’t actually quote anyone at Universal to see if this is a conscious strategy, or just something that has happened by accident. Given the way Universal has acted for years, I’m not sure I’d trust the company to continue behaving in this mostly sensible manner.

That said, even if we ignore the fact that Universal might turn out to be just as bad as Disney in the long run on this, at the very least, hopefully others can take this as a lesson: rather than feeling the need to overly enforce your copyrights every chance you get, perhaps there’s even more benefit to letting people make use of the work and help you spread it and make it ubiquitous.

Filed Under: copyright, culture, fan art, mickey mouse, minions, piracy
Companies: disney, nbc universal, universal studios

Lauren Boebert Threatens Disney’s ‘Mickey Mouse Trademark’ Extension, Which Isn’t A Thing

from the mouse-in-the-house dept

This seems to be becoming a thing here in America, this desire by those in power to punish private companies for their stances and speech on controversial topics. Mike recently wrote about how this effort to exert legislative influence on private actors is one of the few bits of bi-partisanship we have these days. And, of course, how it’s absolutely the morally wrong thing to do when either of side of the aisle engages in this sort of thing. Still, I won’t pretend that it isn’t a spotlight of hypocrisy when one particular side crusades against “cancel culture” only to literally attempt to cancel specific forms of culture merely over speech their side of the political spectrum doesn’t like.

Disney has found itself in the crosshairs in this manner recently, due to its vocal opposition to Florida’s new law that governs what some teachers can teach. Florida Governor Ron DeSantis pounded many tables and shook many fists over the company deciding it had an opinion on the matter. Marsha Blackburn did likewise, making some unfortunate noises about how Disney would be punished if it tried to “interfere” in Florida, a state in which the company has many employees and assets.

And, like a deranged moth to a flame of controversy, Colorado Representative Lauren Boebert decided to weigh in herself in a manner that was unintentionally illuminating.

If you can’t read that, it says:

Next year, the woke Disney lobbyists will ask Congress to extend Micky Mouse’s trademark.

I think not.

So much to unpack in such a small tweet. The replies to her did most of the work, frankly, but three points that should be made. First, it’s “Mickey”, not “Micky”. There’s, like, an entire famous intro song for Mr. Mouse that literally spells out the name. Right, Jedi Master Luke Skywalker?

You misspelled Mickey!? How can you NOT remember the song that literally spelled his name correctly in the lyrics??
🎶 M-I-C (See you real soon!)
K-E-Y (Why? Because we like you!)
M-O-U-S-E 🎶
Should someone like you even be in Congress?

I think not.#Duh https://t.co/KylrvL7Ai8 pic.twitter.com/5ns2oR53WP

— Mark Hamill (@MarkHamill) April 5, 2022

Right. Second, and this is really Techdirt territory, trademark and copyright are two massively different things. Different laws, with different purposes, that apply to different assets in different ways. It gets quite frustrating when the general public, or business leaders, don’t bother understanding the difference between the two. But Boebert is a lawmaker talking about laws of which she appears to have zero understanding. This is a threat levied by a lawmaker to not “extend” Disney’s trademark, which is not something Congress has any control over. Instead, she’s probably talking about refusing to extend copyright terms, something that Disney very much has wanted Congress to do in the past (though has shown no inclination to do again this time around).

And on that topic, thirdly, Congress should not extend copyright terms further… but not because Disney, the company, has an opinion and engages in speech about a law in a state in which it operates, has employees, and does business. That sort of thing has a name: fascism. Fascism is the authoritarian control by a limited number of powerful members of the State in a manner that suppresses opposition, criticism, and speech, including by private industry. That is what Boebert is advocating for, openly and nakedly.

So by all means, don’t extend copyright terms past their current absurd levels. But not as punishment for Disney refusing to be bigoted asshats.

Filed Under: copyright, florida, lauren boebert, mickey mouse, trademark
Companies: disney

Disney (Disney!) Accused Of Trying To Lawyer Its Way Out Of Paying Royalties To Alan Dean Foster

from the the-maximalism-only-works-in-one-direction dept

Disney, of course, has quite the reputation as a copyright maximalist. It has been accused of being the leading company in always pushing for more draconian copyright laws. And then, of course, there’s the infamous Mickey Mouse curve, first designated a decade ago by Tom Bell, highlighting how copyright term extensions seemed to always happen just as Mickey Mouse was set to go into the public domain (though, hopefully that’s about to end):

Whether accurate or not, Disney is synonymous with maximizing copyright law, which the company and its lobbyists always justify with bullshit claims of how they do it “for the artist.”

Except that it appears that Disney is not paying artists. While the details are a bit fuzzy, yesterday the Science Fiction & Fantasy Writers of America (SFWA) and famed author Alan Dean Foster announced that Disney was no longer paying him royalties for the various Star Wars books he wrote (including the novelization of the very first film back in 1976), along with his novelizations of the Aliens movies. He claims he’d always received royalties before, but they suddenly disappeared.

Foster wrote a letter (amusingly addressed to “Mickey”) in which he lays out his side of the argument, more or less saying that as Disney has gobbled up various other companies and rights, it just stopped paying royalties:

When you purchased Lucasfilm you acquired the rights to some books I wrote. STAR WARS, the novelization of the very first film. SPLINTER OF THE MIND?S EYE, the first sequel novel. You owe me royalties on these books. You stopped paying them.

When you purchased 20th Century Fox, you eventually acquired the rights to other books I had written. The novelizations of ALIEN, ALIENS, and ALIEN 3. You?ve never paid royalties on any of these, or even issued royalty statements for them.

All these books are all still very much in print. They still earn money. For you. When one company buys another, they acquire its liabilities as well as its assets. You?re certainly reaping the benefits of the assets. I?d very much like my miniscule (though it?s not small to me) share.

You want me to sign an NDA (Non-disclosure agreement) before even talking. I?ve signed a lot of NDAs in my 50-year career. Never once did anyone ever ask me to sign one prior to negotiations. For the obvious reason that once you sign, you can no longer talk about the matter at hand. Every one of my representatives in this matter, with many, many decades of experience in such business, echo my bewilderment.

You continue to ignore requests from my agents. You continue to ignore queries from SFWA, the Science Fiction and Fantasy Writers of America. You continue to ignore my legal representatives. I know this is what gargantuan corporations often do. Ignore requests and inquiries hoping the petitioner will simply go away. Or possibly die. But I?m still here, and I am still entitled to what you owe me. Including not to be ignored, just because I?m only one lone writer. How many other writers and artists out there are you similarly ignoring?

In a video press conference, Foster and SFWA (while admitting that no one on the call were lawyers) said that Disney is claiming that it purchased “the rights but not the obligations” to these works. That’s… weird. And I wish there was a lawyer on the call. Because that doesn’t make much sense.

As SFWA notes, if it is possible to purchase rights without the obligations, then any company could just do a sham sale of the rights without the obligations and get out of paying any royalties ever.

Of course, the details here matter, and we only have one side (and not their lawyers). There may be something very weird in these contracts (and this is, basically, a contract dispute, not a copyright one). But just at a fundamental facts of the situation look disgusting on Disney’s part. If you owe royalties, you pay the royalties. Considering how aggressive Disney is with its own copyrights, you’d think its lawyers would understand that.

Filed Under: alan dean foster, aliens, contracts, copyright, mickey mouse, obligations, rights, royalties, star wars
Companies: disney, sfwa

Irony Alert: Disney (Yes, DISNEY!) Whines About 'Overzealous Copyright Holders'

from the mickey-mouse-is-a-hypocrite dept

Here’s one that might create a bit of a stir. The history of the 20th century and maximalist, ever expanding copyright is often associated with one particular company: Disney. I mean, the 1998 Copyright Term Extension Act (CTEA) is regularly called the “Mickey Mouse Protection Act” and Tom Bell once created this lovely Mickey Mouse Curve showing how copyright terms always seemed to expand just before the original movie starring Mickey, Steamboat Willie was about to enter the public domain:

This pattern might finally (miraculously) end this year — but not because Disney has become enlightened. Rather, it’s mainly because Disney’s lobbying influence is not what it once was, and SOPA seemed to make both Congress and the legacy entertainment industry realize that they would almost certainly lose another such fight on an issue like this (not that there weren’t attempts to slip provisions into trade agreements that had the potential to expand copyright terms).

However, it does seem notable — as first spotted by Eriq Gardner at The Hollywood Reporter — that Disney has now been put in the possibly awkward position of complaining about “overzealous copyright holders,” and talking about the importance of user rights and fair use to protect free speech and the First Amendment. No, really.

Disney, of course, owns ABC. Back in May (though the complaint appears to incorrectly state March), ABC aired a two-hour program entitled The Last Days of Michael Jackson. The Michael Jackson Estate was not pleased and sued for copyright infringement. The complaint itself is quite a read. It completely mocks the program in question:

Although titled The Last Days of Michael Jackson, the program did not focus on Michael Jackson?s last days. Rather, it was simply a mediocre look back at Michael Jackson?s life and entertainment career. A Rolling Stone review described the program as ?offer[ing] little in the way of new revelations or reporting and at times seems heavy on armchair psychoanalysis and unsupported conjecture.? The magazine was being too generous. The program contained nothing ?in the way of new revelations or reporting.?

It also digs deep on Disney’s well-known history for maximalism:

Disney?s media business depends on its intellectual property and, more specifically, the copyrights it holds in its well-known characters, motion pictures, music, and the like. Disney has never been shy about protecting its intellectual property. Indeed, its zeal to protect its own intellectual property from infringements, real or imagined, often knows no bounds.

a. Disney has threatened to sue independent childcare centers for having pictures of Mickey Mouse and Donald Duck on their walls, forcing them to remove all pictures of Mickey or Donald?and other anthropomorphized mice or ducks?rather than face ruinous litigation from one of the world?s largest corporations.

b. Disney once sued a couple on public assistance for $1 million when they appeared at children?s parties dressed as an orange tiger and a blue donkey. Apparently, these costumes cut too close to Tigger and Eeyore for Disney?s tastes.

c. Disney takes a very narrow view of copyright law?s ?fair use? doctrine. For example, just a few years ago, it sent DMCA takedown notices to Twitter, Facebook, and other websites and webhosts, when consumers posted pictures of new Star Wars toys that the consumers had legally purchased. Apparently, Disney claimed that simple amateur photographs of Star Wars characters in toy form infringed Disney?s copyrights in the characters and were not a fair use.

It’s hard to deny any of the above. And thus, the complaint, with a healthy dose of snark, notes Disney’s fairly blatant hypocrisy:

Like Disney, the lifeblood of the Estate?s business is its intellectual property. Yet for some reason, Disney decided it could just use the Estate?s most valuable intellectual property for free. Apparently, Disney?s passion for the copyright laws disappears when it doesn?t involve its own intellectual property and it sees an opportunity to profit off of someone else?s intellectual property without permission or payment.

It claims “at least thirty different copyright works” were used without permission. These included clips from songs and music videos, concert footage and the Jackson Estate’s own documentary footage. So now Disney has answered and finds itself, quite incredibly, arguing against overzealous copyright holders and about the importance of protecting the First Amendment from being harmed by excessive copyright claims. Literally.

This case is about the right of free speech under the First Amendment, the doctrine of fair use under the Copyright Act, and the ability of news organizations to use limited excerpts of copyrighted works?here, in most instances well less than 1% of the works?for the purpose of reporting on, commenting on, teaching about, and criticizing well-known public figures of interest in biographical documentaries without fear of liability from overzealous copyright holders.

I agree with everything in that paragraph. I’m just shocked that it’s Disney stating this. Disney is not the most credible defender of the First Amendment and fair use. Nor is it the most credible defendant to be yelling about overzealous copyright holders. Throughout the answer to the complaint Disney insists that its uses of the Michael Jackson works “were included in the Documentary on a transformative and fair use basis.”

Without having seen the documentary, it’s impossible to say whether or not the uses truly qualify as fair use, though the argument that they are sounds reasonable. But the idea that Disney is the one fighting for fair use and against overzealous copyright holders remains stunning and bizarre. I’d like to believe this is Disney coming to its senses and making amends for the century of harm its done thanks to copyright, but it seems much more likely that this is just an opportunistic defense of fair use, and the company remains firmly in the camp of supporting ever expanding copyrights.

I wonder how Disney would feel if someone showed up to future hearings in the case wearing an unauthorized Mickey Mouse costume?

Filed Under: copyright, copyright term extension, fair use, first amendment, free speech, michael jackson, mickey mouse, overzealous copyright holders
Companies: abc, disney, michael jackson estate

NYPD Asks Disney, Marvel To Abuse IP Law To Help Rid Times Square Of Spiderman, Mickey Mouse

from the government-ordained-trolling dept

For years, New York City mayor Rudy Giuliani and the NYPD waged a small-scale war in Times Square to turn it into a family-friendly tourist attraction on par with Las Vegas. It succeeded… mostly. Porn shops were replaced with toy stores and chain restaurants.

The war continues, even after this overhaul. Anywhere tourists gather en masse will draw the attention of less-desirable city residents. Panhandlers and street performers continue to converge on Times Square, hoping to earn a few bucks from out-of-towners. Much to Bill Bratton and the NYPD’s chagrin, Times Square continues to draw a disproportionate amount of New York City’s boobs. And topless women.

[A]t midday Thursday, there were 38 costumed panhandlers, five topless ladies and an artist who paints people’s naked bodies in full view in Times Square…

The city is trying to figure out how to keep these topless women out of an area where tourists can also witness the spectacle that is the nationally-infamous Naked Cowboy. Nothing seems to be working especially well and any efforts targeting female toplessness specifically will obviously (and correctly) be hailed as sexist (and a possible violation of the First Amendment).

The other element it wishes to banish is a direct result of the city’s decision to turn Times Square into Disneyland Lite: costumed street performers. Many dress as Disney/comic book characters and make money by charging tourists for photos with them. Some of these performers are known to become aggressive when photos are taken without “permission.” (Read: in exchange for $$$) Others are known to commit more heinous acts.

There’s been a series of incidents and arrests since then, including accusations of groping by Cookie Monster, and also Woody from “Toy Story.”

Spider Man was arrested in 2014 for allegedly demanding tips in an aggressive manner. Earlier this year, a Youtube video went viral of another Spider Man locked in a brawl with a heckler right in front of Toys R Us.

So, New York is still New York even if Times Square isn’t really Times Square anymore.

Police commissioner Bratton wants to add more officers… to enforce not much of anything, apparently.

Bratton said the unit was in the works for some time but was fast-tracked after the media began focusing on the desnudas and how their kind of panhandling can be “easily spread to other parts of the city.”

That said, Bratton added, “there’s only about one crime reported every day” in Times Square.

This new unit will patrol Times Square and attack “quality of life” issues… like painted women. Or intellectual property infringement.

The city’s top cop said Thursday they got the cold shoulder from Disney and Marvel when they tried to enlist them in the fight against the costumed characters preying on tourists in Times Square.

The NYPD specifically asked the companies if they wanted to charge the hustlers who wear Mickey Mouse, Spider-Man and other well-known costumes with copyright infringement.

Look! It’s IP law abuse to the rescue, a favorite tactic of this IP-abusing city government.

First off, these costumed performers would more likely fall under trademark infringement than copyright infringement. The characters are covered under trademark law. Creative works using these characters are what’s covered by copyright. But that distinction doesn’t matter to these blustering officials. They’re only concerned with enlisting the public to fight their battles for them. Any differences between copyright and trademark enforcement can be sorted out by Disney, Marvel, et al.

Fortunately, the companies seem less willing to abuse IP law to help out Bratton and the NYPD. Disney’s lack of interest in filing lawsuits isn’t altruistic, however. It won’t participate with Bratton’s plan because it doesn’t know who these performers are. The amount of time and money spent to discover this would easily outweigh any compensation gained.

Disney — being Disney — prefers to have legislation written on its behalf.

The bill — which would require the horde of Spider-Men, Mickeys and Minnies and other costumed panhandlers to undergo background checks and carry IDs — was introduced back in September by Councilman Andy King (D-Bronx).

[…]

“We have been for years working with previous and current administrations as well as the City Council trying to get legislation passed that would require registration and identification of these costumed characters,” said Disney spokeswoman Zenia Mucha.

This would solve Disney’s (and Marvel’s) “problem” without either corporation having to look like an IP thug. But the legislation isn’t going anywhere and Bratton wants his Time Square free of Mickeys and Spidermen now. So, he’s asking these companies to file baseless and pointless lawsuits almost solely on behalf of Bratton and his cleanup crusade.

The city’s top cop is also willing to let Disney, Marvel, etc. work for free.

“They want no part of it,” Police Commissioner Bill Bratton said on the John Gambling radio show. “We’ve encouraged Walt Disney, ‘Put your characters out on Broadway free of charge so people don’t have to worry about their kids being groped,’” he said. “We said to them, effectively, ‘Since you control the rights of them, put them out in front of the Disney Theater.’ They want no part of it.”

Disney and Bratton may not see eye-to-eye on the specifics of the solution, but they do agree on one aspect: someone else should do all the work.

The regulatory angle (licensing performers) Disney prefers puts the city and its police force to work for the companies. Bratton’s suggestions (filing bogus copyright infringement lawsuits, “free” costumed performers) puts the companies to work for the city. As long as they only agree on this element, nothing will ever move forward.

And once again, we see that government entities — like many private companies — are quick to turn to abuse of IP protections once they’ve run out of good ideas — or, in this case, when they didn’t have any good ideas to begin with.

Filed Under: bill bratton, characters, copyright, mickey mouse, nypd, spiderman, times square, trademark
Companies: disney, marvel

It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5

from the oops dept

I actually don’t think that Disney’s trademark opposition to Deadmau5’s attempt to trademark his mouse-shaped helmet thing is that crazy. Disney hasn’t gone after Deadmau5/Joel Zimmerman all these years for using it. They’re just saying “hey, maybe he shouldn’t have a registered trademark on that.” And they may have a point. Yes, the designs are different, and no, there isn’t likely to be much confusion between Deadmau5 and Mickey, but why is Deadmau5 seeking to get a registered trademark on this in the first place?

That said, if notorious copyright maximalists Disney were going to pick an intellectual property fight with someone, it would probably make sense to make sure their own mouse house is in order, no? Apparently, it’s not, because Deadmau5 has discovered that… Disney (yes, I’ll repeat that: Disney) has uploaded some of his music on its website without permission. The music was on a “re-micks” (ha ha, get it?) page on Disney’s website that has since been taken down — but not before Deadmau5’s lawyers sent a takedown letter over it. The letter also, amusingly, makes a trademark claim, though frankly the trademark claim is quite weak. Deadmau5’s lawyer is basically claiming trademark infringement over the video as well. That almost certainly wouldn’t fly in court.

I tend to not be a fan of takedowns in general, but it’s pretty clear that this is basically just being done to call out Disney’s hypocrisy here. Not that I expect the message to get through. Still it’s surprising that such a copyright maximalist company would be posting videos like that…

Filed Under: copyright, deadmau5, joel zimmerman, licensing, mickey mouse, takedowns, trademark
Companies: disney

Crowdsourcing A List Of How Disney Uses The Public Domain

from the something-useful dept

We’ve written plenty of times about the importance of the public domain around here, and one of the biggest beneficiaries of the public domain has been Disney, a company which has regularly mined the public domain for the stories it then recreates and copyrights. Of course, somewhat depressingly, Disney also has been one of the most extreme players in keeping anything new out of the public domain, as pointed out by Tom Bell’s excellent “mickey mouse curve” showing how Disney has sought to push out the term of copyrights every time Mickey Mouse gets near the public domain.

All this despite the fact that Mickey Mouse was almost certainly was an infringing work when it was created, copying multiple sources that were still covered by copyright. Oh, and also there’s evidence that Disney screwed up its early copyright registrations on Mickey Mouse, suggesting that it really already is in the public domain, even if Disney will never admit that.

Either way, as we get closer to the next attempt to extend copyright terms in the US (and you know it’s coming), Derek Khanna has decided to crowdsource a list of all of the public domain works that Disney has relied on over the years. He’s also looking for revenue figures on all of those works, in an attempt to show just how much Disney has profited off of the public domain (and hopefully to shut up those who argue that when a work falls into the public domain, it suddenly loses its value). As Khanna notes:

While Disney took and reused from the public domain, none of the works created by Disney, including derivative works based upon public domain works, have entered the public domain for others to build upon. And if current policy is extended — they never will.

MPAA/RIAA/Disney lobby Congress and inform the public that copyright should last forever because it’s their “property” and that it’s never ok to use or build upon their property without paying. Under the content industry’s vernacular, if taking and remixing other people’s work without paying for it is always stealing then the Disney Corporation is responsible for one of the greatest thefts in world history.

If you can, please help and contribute to the list of public domain works that Disney has relied upon.

Filed Under: copyright, crowdsourcing, mickey mouse, public domain
Companies: disney