The mouse that ate the public domain



What do you think of the copyright extension act, which was prompted by Disney? Should corporations be able to extend intellectual property rights, and what does this mean for the future of the arts? Many works are the direct product of public domain works, including many of Disney's own pictures (Alice in Wonderland, Sleeping Beauty, Cinderella, The Hunchback of Notre Dame, etc....)

First, I think that the Constitutional protection of "the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" was intended to apply more to theories and inventions than to movies or, well, Mickey Mouse. That said, Article I, Section 8 has always been the standard for framing copyright and patent law. And I believe that such protections should apply to literature, musical compositions, and other works of art in some form.

I wonder if some sort of compromise in this case could be reached in the grayer area of trademarks. If a sign, symbol, phrase, character, icon, or motto is created by a company and is closely identified with that company, it could be argued that that object should be protected for the life of the company, rather than the individual who created it. This would obviously protect something like Mickey Mouse or Donald Duck or any of the original Disney characters just as it would protect Mr. Clean, Aunt Jemima, or the Jolly Green Giant. I do not believe that such protection should extend to characters derived from previously copyrighted material: no way should Disney be able to extend any kind of rights - even their original character designs - for, say, Rudyard Kipling's The Jungle Book or Hans Christian Anderson's The Little Mermaid.

As a slight tangent, I know that the James Joyce estate got an extension on the copyright of Ulysses by virtue of releasing Ulysses: the Corrected Edition - allegedly incorporating numerous corrections which had never made it into the original published editions (many of which, it transpires, were edited from the text and never meant to have been incorporated into anything). I wonder if a similar argument could be applied to the evolution of Disney characters. "Ah, the copyright has expired on the original Mickey Mouse - not the full-color version - or the Mickey whose solid black oval eyes evolved into white ovals with pupils!" With Ulysses as a precedent, a case could perhaps be made...

Then again, I don't know enough about copyright law or trademarks or any of this to really put forward much of a learned opinion, so I'll shut up now.
(when does the copyright run out on these smilies??)

The purpose of patent and copyright protections is to encourage innovation. In our world today I do not see how extending the protections past 28 years encourages innovation.

Yes Hugo, 28 years is a pretty good run with something. Didn't Disney use some material without paying royalties to make some of his movies early on??

I tend to agree with you on this, Hugo. There are so many great works of art that have been influenced significantly by other works of art.

For example:



http://www.theatlantic.com/issues/2002/04/posner.htm

These works are perfect examples of innovation, IMO.

There is a great site at http://www.illegal-art.org/ that discusses this further, and gives examples of modern art that exists on the fringes or blatantly violates copyright laws.

I can understand the necessity for protecting intellectual rights for a time, but it doesn't seem appropriate to extend all copyrights for a longer period than the initial life plus 50 years. This allows the individual artist to receive proper compensation for their work, and it also allows the opportunity for future generations to expand on an idea.

Additionally, works falling into public domain can be a very positive thing educationally. If this didn't occur, sites such as Project Gutenberg would not exist. Programs like this encourage the persuit of knowledge.

Coming from the world of dance, I can speak a bit (only a very little bit) about how copyright affects the works of choreography - which is a rather ephemeral art form.

In the case of George Balanchine's ballets - his will (which included his copyright upon his creations) designated various heirs and a Balanchine Trust was established. The actual performance of the choreography is controlled by this Trust. If you wish to perform one of his ballets, the Trust will send out a representative to evaluate your capacity (your artistic/technical level) to perform the ballet. Then the Trust representative will oversee the setting (learning of the choreography) of the ballet, and finally the performance.

The copyright protection on his ballets, protects not only who dances his choreography, but how it is danced - the entire production value of the performance.

Copyright law for choreography is comparatively new. You can read a much more knowledgeable explanation of this here:

Copyright protection for Choreography

So, I guess the point I am making is that copyright protection is not only to encourage innovation, and to protect the creator's right to payment - but also to help insure the integrity of the work.

The question is: Was that the intent of the constitution?



The founding fathers were concerned with progress and compensation, not necessarily the integrity of the work. The idea was to secure the work for a given period of time in order to give people incentive to create new works, and then it was to be released so that it would be widely available to the public. Additionally, the original copyright act of 1790 only granted copyright to authors of maps, charts, and books. The constitution specifies "useful arts."

Good point about the intentions of the Founding Fathers - and they also intended that the Constitution and the laws written under its aegis should evolve and provided the means to do so.

I think that integrity is inherent in "securing the work"....otherwise it is not the work as originally intended.

cyan,

Good point about "useful arts". I guess that means art that makes some amount of money for the copyright holder. Makes sense to me--why would anyone ever bring a case to court on copyright infringment if a significant amount of money wasn't at stake?

Disney won this decision to make more money. I suppose it'll benefit a lot of other copyright holders of "useful art".

I agree with you that integrity of the work is important during the term of copyright, and I actually do believe that copyright should extend to fine arts, but I think it's important to look at the original intent, especially when looking at the extension of copyright.

It is my feeling that copyright is a form of monopoly that has a positive purpose if granted for a limited time, but in the long run, these copyrights should be released. The extension of copyright merely succeeds in subduing future artists and limiting access to information.

hmmmmmmm.....interesting - but I don't see how using copyright to insure the integrity of the work subdues or inhibits future artists, or artistic innovators, etc. It merely means (such as in the case of Balanchine choreography) you will see it as close to how it was meant (how he meant) it to be seen as possible.

If Balanchine choreography (as an example) is copyright protected to the end of time - how does this stop anyone else from exploring dance movement?

There are actually people who litigate these matters when money (profit) is NOT the motive. The recent adjudication of the Martha Graham body of choreography is a case in point. No one gets wealthy putting on a dance performance. Lucky are those who simply break even. But people do care about the integrity of the work - really there are such people.

Copyright protection for the performing arts is a comparatively new field with much room for judicial adjudication.

In the case of Disney - suppose the copyright had expired and someone took a Disney cartoon and distorted it in some way, and left on the Disney name? I think that in this case, copyright also protects (yes, the profit motive) but also the integrity of the product. It doesn't stop anyone else from drawing a quite different looking mouse and evolving that into an empire.

I suppose it depends upon how you look at it. I'm not terribly familiar with dance, so it's difficult for me to use that as an example, but a recent example is the use of sampling in music. Artists take a sound clip from an old song and rework it into a new song that sounds completely different. This is still considered to be copyright infringement. Another example, and maybe some of you computer gurus could step in on this one, is software code. As I understand it, people often recycle old code for the purpose of creating new and different software.



This is understandable, but wouldn't there be a motivation to preserve the integrity of the work with or without copyright, and isn't there room for innovation? For example, I don't know if you are familiar with shakespeare, but Titus Andronicus was recently made into a fabulous film that integrated modern elements. The text of the play was the same, but the visual effect was quite different. This doesn't mean that shakespeare isn't being presented as he originally intended in addition to other less traditional presentations. Isn't there room for interpretation?



This is an interesting point. If an artist took the image of Mickey mouse and distorted it to make a point either in the form of a parody or some form of social commentary, I can appreciate the artistic value, but not if the artist fails to represent that it is not an original Disney work.