July 23, 2009 by D Stack
The odds of the first audio Mickey Mouse cartoon, Steamboat Willie, ever entering the public domain seem to be close to zero.
When Steamboat Willie first appeared it would have entered the public domain in 1956 had its copyright not been renewed which extended the copyright to 1986. In 1976 copyright law was changed so that it would enter the public domain in 2003. As 2003 approached copyright law changed again – the 1998 changes to copyright law pushed its entry into the public domain to 2023.
Disney lobbied extensively to get the “Sonny Bono” 1998 copyright act passed to prevent Steamboat Willie from entering public domain. What does public domain mean? Does that mean I could make my own Mickey Mouse cartoon? No. Disney would still retain the trademark for Mickey Mouse. You could release a Steamboat Willie DVD featuring an image from the cartoon on the cover. But you could not make your own works featuring Mickey Mouse. So long as Disney were to protect its trademark, that would be the limit of your rights. A similar situation exists with the animated Superman shorts made by Fleischer Studios in the early 1940s. Since those works are in the public domain, many versions of the shorts are available on DVD from various distributors. However, none of these distributors have the right to make their own Superman cartoons, as Superman is still a trademark owned by, used by, and protected by DC Comics. Mind you I’m simplifying this a bit. There is some debate as to whether you could make a derivative work based solely on the Fleischer shorts without violating DC Comics trademark.
So what is the basis for copyright law in the United States. Article 1 Section 8 of the Constitution grants Congress the power
To promote 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
With this, in 1790 Congress passed its first copyright law, granting copyright for 14 years with the option for the author, if still alive, to renew it for one additional 14 year term. After either 14 or 28 years works would enter the public domain. The term has been extended at various points in US history. The 1909 Copyright Act (which was in effect when Steamboat Willie was made) granted a copyright of 28 years and was renewable for an additional 20 year term. The current act , for private works, grants copyright for the life of the author plus an additional 70 years. Corporate-produced works were granted a copyright term for 120 years after creation or 95 years after publication.
In my mind, copyrights have been extended beyond what seems reasonable. The Constitution does not put a limit on copyright time but does state that it is intended to be limited. The Constitution suggests a balance – a limited time for the author to have sole rights to a work but after which it enters the public domain where it can “promote the progress of science and useful arts”. To extend copyright time every time Steamboat Willie gets close to entering the public domain would seem to be a clear violation of the intent of this law. During the debate for the 1998 copyright act Sonny Bono’s widow indicated her husband preferred the idea of indefinite copyright but that would violate the Constitution. Yet never allowing something to enter the public domain seems a violation as well via a wink and a nod.
It is also ironic that Disney owes much of its own success to works entering the public domain. Several of their most famous stories are either based on fairy tales as collected by the Brothers Grimm or by novels and plays which had entered the public domain. Consider the following list of Disney works dependent on the public domain:
- Snow White and the Seven Dwarfs (based on Brothers Grimm fairytale adaptation)
- Pinocchio (based on the 1883 novel The Adventures of Pinocchio by Carlo Collodi.)
- The Adventures of Ichabod and Mr. Toad (based on The Legend of Sleepy Hollow and The Wind in the Willows, the latter of which entering the public domain relatively early due to author Kenneth Grahame’s 1932 death).
- Cinderella (based on the Charles Perrault fairy tale Cendrillon ou la petite pantoufle de verre)
- Song of the South (based on Joel Chandler Harris’ Uncle Remus cycle of tales).
- Alice in Wonderland (based on Lewis Carroll’s Alice’s Adventures in Wonderland and Through the Looking-Glass).
- Sleeping Beauty (based on the Charles Perrault fairy tale La Belle au bois dormant).
- The Jungle Book (based on the Rudyard Kipling novel and adapted shortly after it entered public domain).
- The Little Mermaid (based on the Hans Christian Andersen fairy tale)
- Tarzan (based on Edgar Rice Burroughs’ Tarzan of the Apes).
- Treasure Planet (based on Robert Louis Stevenson’s Treasure Island).
Adding to the irony is many of the works these are based upon would not be in the public domain at the time they were made had the 1998 copyright law been in effect (such as The Wind in the Willows, Tarzan of the Apes, and The Jungle Book).
I’m picking on Disney because it is the easiest target, but other corporations are just as culpable of using public domain works. The Muppets and Barbie frequently raid the 19th century for inspiration. Mind you this is the reason copyrights were intended to be finite – so others could build upon the original work.
For an interesting discussion on the copyright status of Superman in Action Comics #1 see this Newsarama Blog Post. That positng also refers to a legal blog’s discussion of trademark vs. copyright and the difficulty in making a derivative work based on something in the public domain.
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