Beyond Eldred v. Ashcroft

I thought I'd grab up some of the many commentaries and responses to the Eldred decision. If you read only one of these links, see Lessig's blog. Jack Balkin, another law professor who contributed to the case, is discussing it in his blog. The NYTimes has two distinct news stories on the decision (NYT1, NYT2), plus a biting editorial about the decision. Copyright scholar Siva Vaidhyanathan has a piece in Salon. The LA Times posts one of the very few stories to present the decision in a positive light. Reason is one of several to mock the mouse.

Comments

Re:What really boggles the mind

[ChaosDiscord]

People can never create derivative works of disney characters for three reasons:

First, a derivative work can only be created by the original artist or someone they give permission to.

Well, at least until copyright expires. That is the entire point of the discussion. Once copyright expires I can make any sort of derivative work I like (Like Disney itself did when it made the Jungle Book 11 years after the copyright on the source material expired.

Second, the copyright on the original movies may expire but not on the artwork of the characters as long as Disney keeps using and changing them.

Copyright protects a specific concrete creation, not the concept. So while new Mickey works would have a new copyright start date, the old Mickey works do not. Once the copyright expires, I'm free to take a copy of "Steamboat Willie" and edit it into something, or study it carefully to learn how to draw Mickey, then draw (and sell) my own Mickey draws based on that knowledge.

Finally, Disney characters, such as Mickey Mouse, are also trademarked and therefore can never be used as long as Disney continues to maintain that Trademark. Trademarks never expire on their own accord.

This is true, and creates a fascinating new area for legal sorts to fight over. This clearly limits free speech in an area where something enters the public domain. It hasn't really come up before because prior to Mickey there hasn't been characters in copyright protected works which people wanted to reuse. One possibly defense is that you are allowed to use and reference trademarks as long as there is no possibility of someone confusing the source. This is why I can create a documentary on Disney, even using Disney's logos, even though Disney's copyright does cover the area of documentaries. It will be interesting to see how it plays out. Darn shame it will be at least twenty more years before it starts playing out.