Mickey Mouse is trademarked, and those trademark protections last into perpetuity... or until Disney stops defending the trademark (ie, into perpetuity)
No, trademark protection also ceases if the mark is no longer distinctive, which is to say, if it no longer indicates that goods and services bearing the mark originate from a single source.
if Disney does eventually allow the copyright to expire, is that although Mickey Mouse is trademarked, the work can be freely copied and distributed in and among those jurisdictions, as well as even have derivative works made from it, so long as any derivative works do not use the trademarked Mickey Mouse character.
Wrong. The MICKEY MOUSE trademark would lose its distinctiveness, at least with regard to creative works, because without a copyright, anyone can copy the work in which the character first appeared, and anyone can make new works using the character.
The two key cases you need to look at are: 1) Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), in which the Supreme Court made very clear that trademarks cannot substitute for copyrights; trademarks are the inferior right, and are subject to the effects of copyrights terminating; and 2) Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938), in which the Supreme Court made similarly clear that when exclusive rights lapse (in this case, the patent on shredded wheat cereal), so too do trademarks that merely describe the thing to which those rights had applied, (the SHREDDED WHEAT trademark, which could stand so long as the patent did, but which necessarily had to become generic when the patent expired).
If Disney loses the copyright on Steamboat Willie, they'll lose much of the trademark protection for Mickey Mouse, and everyone will be free to use that character -- or at least the Steamboat Willie incarnation -- freely.
If Harry Potter were in the public domain, anyone who wanted to, could make movie adaptations of it, not just Warner Bros.
I'd certainly prefer that the public at large make out like bandits -- enjoying many adaptations and the chance to make their own, as well as greater access to the original novels (e.g. for free via Project Gutenberg) -- rather than the family of JK Rowling.
I think you are confusing copyright with trademarks. Disney might lose the copyright of the Mickey Mouse character, but they would still have a trademark restricting others from marketing said character.
Not quite, though you're close. As the other poster correctly said, trademarks cannot be used like copyrights.
In fact, given cases such as the SHREDDED WHEAT case, it turns out that where a trademark would otherwise interfere with the free use of a public domain copyrighted work, the trademark will suffer from genericide and be lost.
This is why Disney focuses so much on copyright extensions: If Steamboat Willie enters the public domain, the Mickey Mouse trademark will be lost in many areas. It'll still be viable for goods and services totally unrelated to creative works, like those Mickey Mouse head-shaped ice cream pops, but that's no different than PETER PAN peanut butter, which hardly stops anyone from making yet another movie adaptation of the original play.
OTOH, merchandise with creative aspects will be allowed. You could probably print t-shirts with pictures of Mickey on them so long as you were doing so for creative / aesthetic purposes, and not for branding purposes.
While some trademark value would be salvageable, Disney would lose out tremendously. It's their own fault for associating themselves too closely with a single character. They'd've done better to keep growing their stable of characters and retiring the old ones such that only old-timers even remembered Mickey Mouse, and nowadays all the kids were into Johnny Jackalope or something.
Personally I think works should enter the public domain after ~25 years. However, let the copyright for a character exist for as long as works involving that character are being produced by the owner.
There is no copyright for a character. A character is a part of the work it appears in, and thus making a new work with that character is, at most, a derivative work based on the previous material. (A lot depends on how fleshed out the character is -- the vaguer the character, the less likely that it will be protectable at all. For example the character of Sam Spade, the detective, from the novel 'The Maltese Falcon' was never protected by copyright because he consists of little more than a name.)
Once the original work in which a character appears enters the public domain, then there's no doubt that the character is free to use. But only as he appeared in that work! Character traits that appeared in later works remain protected by the copyrights of the works in which they were first introduced. So if Steamboat Willie entered the public domain, people could use black and white 1920's Mickey, with a mischievous attitude and a lot of farm animals, but not his voice, or his later character designs (like the way the face was totally redesigned -- originally he had huge white eyes with huge black pupils, and a black head -- later the eye became a tan face, the pupils became eyes, and the new pupils were much smaller).
The extreme example of why I feel that way is no one would probably like it if a character they were developing was stolen by someone else and used to spread a message the original author disagreed with
Who cares? The reason we grant copyrights is not to make authors feel happy, it is for the public good, specifically in causing more works to be created and published than otherwise would have been, and to have those works protected as little as possible, as briefly as possible, and in the public domain as fully and quickly as possible.
I don't think there's much chance that an author is going to fail to create and publish a work because there is a small chance that in twenty-five years (to use your number) someone will use it in a way that the author disapproves of. Especially given that people happily use characters in that way during the copyright period, or perhaps you have not seen some of the depths to which fan fiction and fan art will sink?
Better to just have short fixed terms, and for authors to get over it.
everybody was apple with apple books - authors, publishers, readers. it was in everybody's self interest. but the govt felt that there was an area that was not sufficiently regulated (liberal attitude) so they wade in and shut it down.
No, you're wrong.
Apple and the major book publishers were trying to rig the market for ebooks so as to 1) increase profits for publishers, and 2) decrease Apple's competition for tablet-format book-reading hardware (Kindles, iPads, etc.). The way they were trying to accomplish this was by raising prices for buyers of e-books.
So it's bad for readers in that it costs them more money to buy books, and it's bad for readers because it reduces competition for the reading hardware. It was also, ironically, bad for the major publishers, who wound up selling fewer books, while minor publishers that didn't participate in the conspiracy wound up benefiting from increased book sales.
It could not have been a more blatant price-fixing scandal, and it was rightfully shut down. And the fact that every publisher gave up and settled with the government, while Apple lost in court at every turn, should probably be good indicators of that.
Meanwhile, your comment about the government is wrong too; the ebooks market is no more or less regulated than it ever was. All businesses are prohibited from working together to fix prices. The law requires that they not do so, forcing them to compete, which tends to produce benefits for the public, such as driving down prices and encouraging the development of new technologies and markets as each business seeks some fair advantage over its rivals.
Now, it is arguable that Amazon is having negative effects on the market too. But conservatives -- starting in the Reagan administration, IIRC -- reduced the enforcement of antitrust law in ways that might have limited Amazon's dealings with publishers, focusing instead almost entirely on whether customers were being overcharged or not. The current administration has taken a decidedly conservative position on antitrust law, which is unsurprising (Obama is more conservative than Reagan was), and instead only tries to keep prices low, as they did by going after Apple.
I enjoy a fair bit of Apple's stuff, but I've got to say, you seem to just be as dumb as a sack of hammers, and very badly informed about both law and politics.
Copyright is a restriction on distributing copies, not making them.
Wrong. Copyright restricts both things, and some other things besides. 17 USC 106 lays out the core exclusive rights of copyright. The first is the right to make copies. The third is the right to distribute copies.
Fair use is about distributing a piece of a copy, and how big of a piece should be treated differently than the whole.
Wrong again. Fair use is a catch all exception; any sort of otherwise infringing activity may be a fair use, though not every actual such infringement will actually turn out to be a fair use. It applies to both the making and distribution of copies.
Also, fair use can apply to copies of entire works, not just portions thereof. The thing to remember is that it is based entirely on the circumstances of the actual use in question.
So 1) if you bought a book, scanned it, and put the physical book on your shelf while you read the scanned copy, no problem.
That's probably a fair use, but otherwise would be infringing.
2) If you got the book from the library, scanned it into a database where you can't get the full text back out, and took the book back to the library, no problem.
That might be fair use, but it depends on some other factors, like why you're doing it, and again, otherwise would be infringing.
3) If you got the book from the library, scanned it, took the book back to the library, and then read the scanned copy later, you have distributed more copies than are acquired, so that is a copyright infringement.
You haven't distributed any copies in this scenario, other than by returning the book to the library, which is not going to be an infringement. The offense here is that you made a copy, and it probably won't be a fair use.
"More likely", huh? Well, that certainly sounds pretty unambiguous. One thousand lawyer points awarded.
Fair use has no bright line rules; it is entirely based on whether the use, given the circumstances, is fair. The best you can hope for from fair use are broad trends which can be used for rough guidance in evaluating new uses.
Also, thank you for the lawyer points. I will add them to the one's I've been accumulating by selling cookies, and perhaps this year I'll finally get that BMX bike.
So okay, if I don't give people access to my stash, it's illegal, but if I make it searchable and provide snippets, it suddenly becomes legal?
Well, let's go through the four factor analysis used to help determine whether or not a use is fair. In doing so, remember first, that no factor is more or less important than any other, and second, that it is not a mathematical test, in which all the factors, or even most or half of the factors have to side with the use.
1) What is the purpose or character of the use?
That is, are you doing something new with the use, which the work didn't previously do, or are you using it in the same old way? If you copy a book merely in order to read the book, this is not favorable toward finding fair use. Google, OTOH, copied a book in order to create a searchable index of the book, and in fact, of as many books as it could get, as a research aid. Other uses that lean toward fair use are educational uses, news reporting, criticism, parody, etc. But it's not usually enough just to be one of those uses; there are examples of all of them that were not fair use.
2) What is the nature of the work?
Typically this is a fact / fiction dichotomy. Works of fact are more favorable toward fair use. It wound up not being very important in this case, although the court said that due to the particular transformational use involved (i.e. making an index), it favored fair use.
3) How much of the work was used?
This is often, wrongly, treated as meaning that the more of a work that is used, the less likely it is to be fair use. Actually what this prong of the test is about is whether the portion used needed to be used, or whether the use was excessive.
4) What effect does the use have on the market for the work?
Will the use act as a substitute for sales or licensing of the original? If you're making copies of books in order to avoid buying copies of the same books, then yes. Google managed to show that there was basically no market for what they were doing, and that it could not have negative effects on the markets that did exist for the books. (Whether it has positive effects is traditionally considered of no importance)
So for your plan to copy a lot of library books and to share them with others, for the purpose of reading them for free, I predict it would not be fair use.
Google OTOH isn't reading the books themselves, just creating indices of the text. And they aren't allowing people to access the database in such a way as to read entire copyrighted books without permission, just to find out whether a book contains a particular bit of text or not.
The US didn't join Berne until 1989, though, so obviously it isn't a big problem. The classic workaround is for the work to be simultaneously published in a Berne country (usually it was Canada) and then you still get other Berne countries protecting it.
Of course, it'd be better for everyone to throw out Berne. There shouldn't be copyright treaties; each country should do what's best, but unilaterally offer national treatment to foreign authors (i.e. treat a foreign work like a domestic one) and try to informally avoid conflicts that would require an author to choose between copyrights in country A v. country B. The actual amount of protection, if any, should be a domestic issue, however.
The US Constitution was written in the late 18th century, and at that time, 'science' meant knowledge (which a novel certainly would be part of), while 'useful arts' means applied science or technology. Strangely, the conventional meanings of science and art have more or less swapped places since then.
A few instances of the earlier meaning of art survive, though. Patents deal with state of the art technology, but you can't get a patent if the invention has already been invented, as evidenced by looking at the prior art, or if you fail to disclose the patent in ways that a person having an ordinary skill in the art could understand.
So Stephen King novels would just be science; not a useful art.
It is legal, and has been legal, but it depends greatly on the details, such as for what purpose you're copying. If you're copying them just to have your own copy without having had to buy one, it's likely not fair use. If you're providing a service like Google's, you are more likely to be acting legally.
Patent attorney here. A patent owner has the right to exclude people from making, using, importing, selling, or offering to sell the invention. Merely reimplementing or running a patented process (or using an infringing device, etc.) can be infringement, without distribution (and subject to very limited experimental use defenses). Unlike in copyright law, distribution isn't the crux at all.
Copyright attorney here. Copyright infringement doesn't hinge on distribution. Distributing copies is just one way in which infringement can occur. Making unauthorized copies of copyrighted works, or even sufficient partial copies (and what's sufficient can be very small; in one noteworthy case, Bridgeport v. Dimension Films, it is suggested that even one note from a song would suffice) is also just as infringing. And there are several other forms of infringement. Since it's a strict liability statute, it's easy and in fact extremely commonplace for people to infringe all the time without even knowing about it.
This "feature" of patent law is not very well known to the public, because the type of infringement above is nigh impossible to uncover and is value negative to pursue.
That's why copyright infringement cases usually involve publicly distributed infringing material. However, our overly litigious bad actors in the various publishing industries haven't let the negative costs, difficulty of investigation, and the general foolishness of trying to stop all infringement stop them. Instead they keep trying to externalize the cost and labor. So, you know, you should probably beware of any efforts of patent holders to use the government or third parties to help enforce patents (e.g. by criminalizing patent infringement, or having customs look for and block import of infringing goods).
That's why their leaders come to the USA for treatment.
As an American, I don't see how I benefit from a health care system that according to you is good at providing care to the wealthy and powerful of the world, but which we also know is crappy at providing care to the rest of us. Are you suggesting that good health outcomes for select individuals trickle down?
If a health care system that worked better for the vast majority of Americans happened to also discourage the elite from treatment here, I'm prepared to live with that. In no small part this is because under the current system I might not wind up living at all.
The last time somebody tried this was the Library of Alexandria which required the dictates and commands of several kings. Even then they had to pay money to the Athenians to get some documents.
Well, that was because the Library wanted to make a copy of the original manuscripts of Aeschylus, Sophocles and Euripides. Athens was reluctant to allow the manuscripts to be sent to Alexandria (presumably they would've preferred to have them copied in Athens), but ultimately allowed it provided that the Library provided a cash deposit to ensure the safe return of the manuscripts.
Instead, predictably, the Library kept the originals and returned the copies, and was happy to forfeit the money, which was almost 500 kilograms of silver.
The normal M.O. of the Library was just to require that all documents going through Alexandria be available for copying by the Library, and to be a major port and trading hub so that a lot of documents happened to pass through.
It all worked pretty well (for a library that relied on hand-copying, the printing press not being invented yet) until some assholes burned the place down.
Eject a disk by moving it from my desktop to the trash with all the files I want to delete? Makes sense.
Well, to understand this, you have to recall that early Macs had to be able to run off of a single floppy drive. Users might buy a hard drive or a second floppy drive (or if they had a dual-floppy SE, a third floppy drive for some reason) but it couldn't be relied on. Yet they still had to be able to tolerate having the OS disc ejected at times.
So there was a distinction between physically ejecting a disc while keeping it mounted (which was represented onscreen by a greyed out disc icon) so that you could copy to it, and both physically ejecting _and_ dismounting a disc.
The formal way that you were supposed to do this was by using menu commands. The Eject command was for eject-but-keep-mounted while the generally ignored Put Away command was for eject-and-dismount. It was also possible to use Put Away on an already greyed out, ejected-but-mounted disc icon.
User testing showed that this was inconvenient, and one of the OS developers eventually created a shortcut for the Put Away command, which was to drag a disc icon to the trash. It wound up being so popular that it shipped.
Apparently there had been some thought at the time about changing the Trash icon into some sort of Eject icon in the case of ejecting a disc, but apparently this was felt to be confusing or too difficult, so it wasn't done. In OS X the idea was revisited, and now the Trash icon does turn into a standard Eject icon when you're dragging a disc.
In any case, in real life, whatever confusion dragging disc icons to the trash might have caused, everyone got over it basically immediately.
Switching tiled applications makes the one menu bar change? Sure. It's not like moving the cursor half the screen for each click is a waste of time.
It's not; since there's nothing above the menubar, you can just slam the mouse up. It turns out to be faster and easier than having multiple menu bars. The Mac and Lisa groups did consider per-window menubars, but having tested the idea, it was rejected. For example, here's some polaroids of a screen from 1980 showing a Lisa with a menu attached to the bottom of a window: http://www.folklore.org/images... Later that year, the menu had moved to the top of the windows: http://www.folklore.org/images... And early the next year, it finally settled at the top of the screen: http://www.folklore.org/images...
For example, if you were to open a fast food shop and call it Walt Disney's Fries Company, the Walt Disney cartoon and theme park company may try to fight this, but they wouldn't stand much of a chance.
Ha, no. They would destroy you so utterly that even brave men would only whisper about you when safe behind locked doors, and as for the store itself, it would be smitten so hard that nothing but twisted weeds would ever grow on that spot again. You might want to read up on trademark dilution.
There's really no such thing as a copyright on a character; there's just copyrights on works, which characters may be part of. Also, where more than one work is at issue, note that the copyright for derivative works only applies to new material added in the derivative work; it doesn't protect the pre-existing material at all.
Not all characters are defined well-enough to be protectable by the copyright to begin with. The degree of characterization matters. A character that's nothing more than a chessman could get reused pretty freely. An extremely well-defined character probably couldn't be. This is like the difference between a butler that did it, but about whom nothing else is told in the book, and a well-defined butler (well, valet, technically) like Jeeves, where we know a lot about him (preferred foods, what he reads, his club, things he knows about, etc.)
So assuming a protectable character, the issue basically boils down to whether the first work in which that character appeared is in the public domain. If it is, then the character -- as he was defined in the public domain material -- is fair game. Otherwise, you'd just be making a derivative of a copyrighted work, which is infringing. Remember, character attributes that first appear in works that are still copyrighted are not available.
As for a trademark, it would unavoidably be lost in this scenario. A trademark can only exist where it serves to indicate that goods bearing the mark originate from a particular source. Since copyright law would allow anyone to make copies or new works which included the mark, and since in the event of conflicts, copyright law trumps trademark law (many people in this discussion have noted the Supreme Court's opinion in Dastar on this point), the mark could no longer indicate that copies shared a common source, and so it would become an unprotected generic mark. If that were not so, the trademark would act like a copyright, which would be unconstitutional.
Just because the story is in the public domain, that doesn't mean you have the ability to use the trademarks.
Actually, it's usually not a problem. Here's the Supreme Court, weighing in in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23 (2003). The thing to know about the case is, there was a tv series based on a book; the book was copyrighted, but the tv series' copyright hadn't been renewed (back when that was a thing), so it had entered the public domain. Dastar made copies of the public domain tv show and sold them. Meanwhile, Fox got the tv rights to the book, then made copies of the tv show and sold them. Fox sued on trademark grounds (specifically section 43 of the Lanham Act).
It could be argued, perhaps, that the reality of purchaser concern is different for what might be called a communicative product -- one that is valued not primarily for its physical qualities, such as a hammer, but for the intellectual content that it conveys, such as a book or, as here, a video. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). And the author, of course, has at least as much interest in avoiding passing off (or reverse passing off) of his creation as does the publisher. For such a communicative product (the argument goes) "origin of goods" in 43(a) must be deemed to include not merely the producer of the physical item (the publishing house Farrar, Straus and Giroux, or the video producer Dastar) but also the creator of the content that the physical item conveys (the author Tom Wolfe, or -- assertedly -- respondents).
The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of copyright, which addresses that subject specifically. The right to copy, and to copy without attribution, once a copyright has expired, like "the right to make [an article whose patent has expired]including the right to make it in precisely the shape it carried when patented-passes to the public." Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 230 (1964); see also Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 121-122 (1938). "In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying." TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U. S. 23, 29 (2001). The rights of a patentee or copyright holder are part of a "carefully crafted bargain," Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150-151 (1989), under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution. Thus, in construing the Lanham Act, we have been "careful to caution against misuse or over-extension" of trademark and related protections into areas traditionally occupied by patent or copyright. TrafFix, 532 U. S., at 29. "The Lanham Act," we have said, "does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity." Id., at 34. Federal trademark law "has no necessary relation to invention or discovery," Trade-Mark Cases, 100 U. S. 82, 94 (1879), but rather, by preventing competitors from copying "a source-identifying mark," "reduce[s] the customer's costs of shopping and making purchasing decisions," and "helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product," Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 163-164 (1995) (internal quotation marks and citation omitted). Assuming for the sake of argument that Dastar's representation of itself as the "Producer" of its videos amounted to a representation that it originated the creative work conveyed by the videos, allow
Actually, you cannot trademark the mere title to a work.
In order to just function as a trademark, a mark must indicate that all goods bearing a particular mark originate from the same source; merely identifying the good is insufficient.
The title to a work merely identifies the work. That's not enough to be a trademark. Only if there are multiple works, forming a series, and the mark is a shared part of the title indicating that all the works are part of that series, and that anything in that series shares a common source, can there be a real trademark.
So in 1991, the book DOS for Dummies was released. If that had been the end of it, it wouldn't be trademarkable. But it was followed up by Windows for Dummies and about a million others, and so FOR DUMMIES became a protectable mark. (And apparently there had been a single book by a different author back in the 70's called Auto Repair for Dummies, but since it was a standalone, it didn't have prior rights to the mark)
This is why the Harry Potter books are all titled Harry Potter and the Something Something. Otherwise they'd probably indicate somewhere on them that they were part of the Harry Potter series (as the Lord of the Rings books, among others, do).
You're citing 17 USC 106A. That only applies to the author of "a work of visual art." That term is specially defined in the Copyright Act, in the definitions section at 17 USC 101. The relevant parts of the definition are:
A "work of visual art" is--
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
It really isn't possible for anything online to qualify, due to the requirement of there being only a single copy (a copy is defined in the Copyright Act as being a tangible object containing the work; a computer file isn't a copy, but a hard drive can be, which means that if other people can download it, they're necessarily making a new copy), or no more than 200 copies if each copy is signed and numbered and which are a limited edition.
What this is actually meant for is fine art, like a painting, art prints, etc. Not art posted online. It was a nice try, but you've got to check the statute more thoroughly if you want to cite it correctly.
The Mickey Mouse character has trademark protections, not copyright protections.
No.
Characters are not creative works themselves, eligible for copyrights, but where characters appear in copyrightable creative works, the work itself, including the sub-part of the work which is the description of the character, is copyrighted. If the description is very minimal, a third party may be able to avoid infringing on the copyright of the work even though he reuses the character without permission. On the other hand, if the character is described in quite a bit of detail, reuse of that character may rise to the level that could qualify as infringement. If the character reappears in other works, the qualities of the character added there may also be copyrightable. If the original work in which the character appears enters the public domain, so does the character -- as he appeared in that work. Later changes to the character may remain protected until the works in which those changes first appeared also enter the public domain.
Character copyrights is a commonly understood shorthand for this concept of copyrights in those portions of a work in which a character appears.
For a fictional character to be a trademark, it must be used in a trademark capacity; just appearing in a creative work will not suffice. The character must be used in such a way as to indicate that the source of the goods or services that it's used in conjunction with are understood by the public to all originate from a particular source. When the character is used with goods that could come from any source, it has no function as a trademark.
For example, in the US, all of the original works by JM Barrie in which Peter Pan appears are in the public domain. Thus, anyone is free to make their own creative works featuring the Peter Pan character, plots, etc. And boy, do they ever -- I think there's yet another Peter Pan movie adaptation coming out this year, and there's always plenty of books, comics, cartoons, etc. Since anyone can do it, no one can have a trademark on the Peter Pan character with regard to any sort of creative work; the character is utterly incapable of indicating a single source.
However, there is a PETER PAN brand of peanut butter. The company that makes it has a trademark on it, and a perfectly good one. There's only one source of PETER PAN-brand peanut butter, and the public domain status of the character for creative works has no relevance in the field of peanut butter. Ditto for KING ARTHUR for flour, or BIBENDUM as used with tires.
Mickey Mouse's original appearance was in a still-copyrighted short film, so there is a copyright that protects the use of the character. There is also a well-known MICKEY MOUSE trademark used on all manner of products. It can be used in conjunction with creative works because no one else is allowed to use them with such works due to the copyright; thus all such works must originate from one source, and trademark protection is possible. When that first short film enters the public domain however, anyone can use the Mickey Mouse character in creative works, and this will kill the MICKEY MOUSE trademark with regard to goods that are creative works. The mark will only retain vitality in unrelated fields.
Derivative works could be created of Steamboat Willie once the copyright expires, but COULD *NOT* feature Mickey Mouse because Mickey Mouse would still be protected by trademark.
Wrong. Derivatives could feature Mickey Mouse, and the MICKEY MOUSE trademark applicable to such things would have ceased to exist at the same time as the copyright.
Those trademark protections would not be able to keep people from making copies of Steamboat Willie because Steamboat Willie itself always had authorized use of the character.
Wrong. First, because as noted the trademark would be dead at that point. Second, you utterly don't understand how trademarks work; if anyone can produce a
if they used the LEGO term, even to say they were compatible with LEGO, even with all explicit trademark acknowledgements, it would be at LEGO's discretion to either issue a C&D or not to bar them from continuing to refer to them, unless they company were somehow able to show that they were not a competitor for LEGO in any way
Sigh. I'm getting tired of having to do your homework for you:
It is the wholesale prohibition of nominative use... that would be unfair. It would be unfair to merchants seeking to communicate the nature of the service or product offered at their sites. And it would be unfair to consumers, who would be deprived of an increasingly important means of receiving such information. As noted, this would have serious First Amendment implications. The only winners would be companies like Toyota, which would acquire greater control over the markets for goods and services related to their trademarked brands, to the detriment of competition and consumers. The nominative fair use doctrine is designed to prevent this type of abuse of the rights granted by the Lanham Act....
Trademarks are part of our common language, and we all have some right to use them to communicate in truthful, non-misleading ways.
That's from Toyota Motor Sales, Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010). Hint: Toyota's LEXUS mark was at issue, and had been used by a competitor, and the court did not come down on the side of Toyota.
Nominative use is a doctrine in US trademark law by which parties other than a trademark holder can use a trademark without permission if:
1) The product is not readily identifiable without using the mark. (LEGO bricks are not readily identifiable without using the LEGO mark to refer to them; otherwise you'd have to say something stupid like 'plastic toy bricks made by a well-known Danish plastic toy brick company')
2) The defendant does not use more of the mark than necessary. (The word LEGO in an ordinary typeface would be fine; the red, yellow, black and white square-shaped LEGO mark, with its distinctive balloonish typeface, on the other hand, would be too much merely to indicate compatibility)
3) The defendant cannot falsely suggest sponsorship or endorsement by the trademark holder. (This is typically done by not using the mark in a way that suggests a relationship, while also disclaiming any relationship. It doesn't require not using the mark at all, however; the public recognizes that not all uses of a mark indicate endorsement)
Note, there is no requirement that the defendant claiming nominative use not compete with Lego. That's perfectly fine. If I make toy bricks and I want to say that based on a survey, children prefer my bricks 10 to 1 over LEGO brand bricks, I'm totally free to do so. (Provided, of course, that I have got such a survey; I can't just make crap up)
The decision of whether advertising should directly refer to competitors (e.g. People who took the Pepsi challenge preferred Pepsi to Coke) or whether it should not (e.g. Our dishwashing liquid works better and faster than brand X) is entirely one of the advertiser's preference. There is no legal requirement compelling one over the other, provided that the ad is truthful and (to some extent) not misleading.
I am suggesting that Steamboat Willie describes the cartoon, and Mickey Mouse describes the character.
If the MICKEY MOUSE mark describes the character, and the copyright on the Mickey Mouse character lapses such that anyone can create works featuring the Mickey Mouse character (which is a copyright issue), the MICKEY MOUSE mark no longer is capable of indicating that all such marked goods originate from a common source, which is a fundamental requirement for a trademark. Thus, the MICKEY MOUSE trademark is lost with regard to such goods, e.g. DVDs, comic books, and the like.
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Mickey Mouse is trademarked, and those trademark protections last into perpetuity... or until Disney stops defending the trademark (ie, into perpetuity)
No, trademark protection also ceases if the mark is no longer distinctive, which is to say, if it no longer indicates that goods and services bearing the mark originate from a single source.
if Disney does eventually allow the copyright to expire, is that although Mickey Mouse is trademarked, the work can be freely copied and distributed in and among those jurisdictions, as well as even have derivative works made from it, so long as any derivative works do not use the trademarked Mickey Mouse character.
Wrong. The MICKEY MOUSE trademark would lose its distinctiveness, at least with regard to creative works, because without a copyright, anyone can copy the work in which the character first appeared, and anyone can make new works using the character.
The two key cases you need to look at are: 1) Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), in which the Supreme Court made very clear that trademarks cannot substitute for copyrights; trademarks are the inferior right, and are subject to the effects of copyrights terminating; and 2) Kellogg Co. v. National Biscuit Co., 305 U.S. 111 (1938), in which the Supreme Court made similarly clear that when exclusive rights lapse (in this case, the patent on shredded wheat cereal), so too do trademarks that merely describe the thing to which those rights had applied, (the SHREDDED WHEAT trademark, which could stand so long as the patent did, but which necessarily had to become generic when the patent expired).
If Disney loses the copyright on Steamboat Willie, they'll lose much of the trademark protection for Mickey Mouse, and everyone will be free to use that character -- or at least the Steamboat Willie incarnation -- freely.
If Harry Potter were in the public domain, anyone who wanted to, could make movie adaptations of it, not just Warner Bros.
I'd certainly prefer that the public at large make out like bandits -- enjoying many adaptations and the chance to make their own, as well as greater access to the original novels (e.g. for free via Project Gutenberg) -- rather than the family of JK Rowling.
I think you are confusing copyright with trademarks. Disney might lose the copyright of the Mickey Mouse character, but they would still have a trademark restricting others from marketing said character.
Not quite, though you're close. As the other poster correctly said, trademarks cannot be used like copyrights.
In fact, given cases such as the SHREDDED WHEAT case, it turns out that where a trademark would otherwise interfere with the free use of a public domain copyrighted work, the trademark will suffer from genericide and be lost.
This is why Disney focuses so much on copyright extensions: If Steamboat Willie enters the public domain, the Mickey Mouse trademark will be lost in many areas. It'll still be viable for goods and services totally unrelated to creative works, like those Mickey Mouse head-shaped ice cream pops, but that's no different than PETER PAN peanut butter, which hardly stops anyone from making yet another movie adaptation of the original play.
OTOH, merchandise with creative aspects will be allowed. You could probably print t-shirts with pictures of Mickey on them so long as you were doing so for creative / aesthetic purposes, and not for branding purposes.
While some trademark value would be salvageable, Disney would lose out tremendously. It's their own fault for associating themselves too closely with a single character. They'd've done better to keep growing their stable of characters and retiring the old ones such that only old-timers even remembered Mickey Mouse, and nowadays all the kids were into Johnny Jackalope or something.
Personally I think works should enter the public domain after ~25 years. However, let the copyright for a character exist for as long as works involving that character are being produced by the owner.
There is no copyright for a character. A character is a part of the work it appears in, and thus making a new work with that character is, at most, a derivative work based on the previous material. (A lot depends on how fleshed out the character is -- the vaguer the character, the less likely that it will be protectable at all. For example the character of Sam Spade, the detective, from the novel 'The Maltese Falcon' was never protected by copyright because he consists of little more than a name.)
Once the original work in which a character appears enters the public domain, then there's no doubt that the character is free to use. But only as he appeared in that work! Character traits that appeared in later works remain protected by the copyrights of the works in which they were first introduced. So if Steamboat Willie entered the public domain, people could use black and white 1920's Mickey, with a mischievous attitude and a lot of farm animals, but not his voice, or his later character designs (like the way the face was totally redesigned -- originally he had huge white eyes with huge black pupils, and a black head -- later the eye became a tan face, the pupils became eyes, and the new pupils were much smaller).
The extreme example of why I feel that way is no one would probably like it if a character they were developing was stolen by someone else and used to spread a message the original author disagreed with
Who cares? The reason we grant copyrights is not to make authors feel happy, it is for the public good, specifically in causing more works to be created and published than otherwise would have been, and to have those works protected as little as possible, as briefly as possible, and in the public domain as fully and quickly as possible.
I don't think there's much chance that an author is going to fail to create and publish a work because there is a small chance that in twenty-five years (to use your number) someone will use it in a way that the author disapproves of. Especially given that people happily use characters in that way during the copyright period, or perhaps you have not seen some of the depths to which fan fiction and fan art will sink?
Better to just have short fixed terms, and for authors to get over it.
everybody was apple with apple books - authors, publishers, readers. it was in everybody's self interest. but the govt felt that there was an area that was not sufficiently regulated (liberal attitude) so they wade in and shut it down.
No, you're wrong.
Apple and the major book publishers were trying to rig the market for ebooks so as to 1) increase profits for publishers, and 2) decrease Apple's competition for tablet-format book-reading hardware (Kindles, iPads, etc.). The way they were trying to accomplish this was by raising prices for buyers of e-books.
So it's bad for readers in that it costs them more money to buy books, and it's bad for readers because it reduces competition for the reading hardware. It was also, ironically, bad for the major publishers, who wound up selling fewer books, while minor publishers that didn't participate in the conspiracy wound up benefiting from increased book sales.
It could not have been a more blatant price-fixing scandal, and it was rightfully shut down. And the fact that every publisher gave up and settled with the government, while Apple lost in court at every turn, should probably be good indicators of that.
Meanwhile, your comment about the government is wrong too; the ebooks market is no more or less regulated than it ever was. All businesses are prohibited from working together to fix prices. The law requires that they not do so, forcing them to compete, which tends to produce benefits for the public, such as driving down prices and encouraging the development of new technologies and markets as each business seeks some fair advantage over its rivals.
Now, it is arguable that Amazon is having negative effects on the market too. But conservatives -- starting in the Reagan administration, IIRC -- reduced the enforcement of antitrust law in ways that might have limited Amazon's dealings with publishers, focusing instead almost entirely on whether customers were being overcharged or not. The current administration has taken a decidedly conservative position on antitrust law, which is unsurprising (Obama is more conservative than Reagan was), and instead only tries to keep prices low, as they did by going after Apple.
I enjoy a fair bit of Apple's stuff, but I've got to say, you seem to just be as dumb as a sack of hammers, and very badly informed about both law and politics.
No, they're just two completely different issues.
Google Books has been involved in copyright disputes against some authors.
Apple Books has been involved in antitrust disputes against the federal government.
The only thing in common are that they both involve lawsuits, and the word 'books.'
By that token, how does giving copyrights to authors for their financial gain enrich mankind?
You seem to want to exclusively enrich mankind, and not any particular subset of that. There's no reason that it has to work that way.
Copyright is a restriction on distributing copies, not making them.
Wrong. Copyright restricts both things, and some other things besides. 17 USC 106 lays out the core exclusive rights of copyright. The first is the right to make copies. The third is the right to distribute copies.
Fair use is about distributing a piece of a copy, and how big of a piece should be treated differently than the whole.
Wrong again. Fair use is a catch all exception; any sort of otherwise infringing activity may be a fair use, though not every actual such infringement will actually turn out to be a fair use. It applies to both the making and distribution of copies.
Also, fair use can apply to copies of entire works, not just portions thereof. The thing to remember is that it is based entirely on the circumstances of the actual use in question.
So 1) if you bought a book, scanned it, and put the physical book on your shelf while you read the scanned copy, no problem.
That's probably a fair use, but otherwise would be infringing.
2) If you got the book from the library, scanned it into a database where you can't get the full text back out, and took the book back to the library, no problem.
That might be fair use, but it depends on some other factors, like why you're doing it, and again, otherwise would be infringing.
3) If you got the book from the library, scanned it, took the book back to the library, and then read the scanned copy later, you have distributed more copies than are acquired, so that is a copyright infringement.
You haven't distributed any copies in this scenario, other than by returning the book to the library, which is not going to be an infringement. The offense here is that you made a copy, and it probably won't be a fair use.
"More likely", huh? Well, that certainly sounds pretty unambiguous. One thousand lawyer points awarded.
Fair use has no bright line rules; it is entirely based on whether the use, given the circumstances, is fair. The best you can hope for from fair use are broad trends which can be used for rough guidance in evaluating new uses.
Also, thank you for the lawyer points. I will add them to the one's I've been accumulating by selling cookies, and perhaps this year I'll finally get that BMX bike.
So okay, if I don't give people access to my stash, it's illegal, but if I make it searchable and provide snippets, it suddenly becomes legal?
Well, let's go through the four factor analysis used to help determine whether or not a use is fair. In doing so, remember first, that no factor is more or less important than any other, and second, that it is not a mathematical test, in which all the factors, or even most or half of the factors have to side with the use.
1) What is the purpose or character of the use?
That is, are you doing something new with the use, which the work didn't previously do, or are you using it in the same old way? If you copy a book merely in order to read the book, this is not favorable toward finding fair use. Google, OTOH, copied a book in order to create a searchable index of the book, and in fact, of as many books as it could get, as a research aid. Other uses that lean toward fair use are educational uses, news reporting, criticism, parody, etc. But it's not usually enough just to be one of those uses; there are examples of all of them that were not fair use.
2) What is the nature of the work?
Typically this is a fact / fiction dichotomy. Works of fact are more favorable toward fair use. It wound up not being very important in this case, although the court said that due to the particular transformational use involved (i.e. making an index), it favored fair use.
3) How much of the work was used?
This is often, wrongly, treated as meaning that the more of a work that is used, the less likely it is to be fair use. Actually what this prong of the test is about is whether the portion used needed to be used, or whether the use was excessive.
4) What effect does the use have on the market for the work?
Will the use act as a substitute for sales or licensing of the original? If you're making copies of books in order to avoid buying copies of the same books, then yes. Google managed to show that there was basically no market for what they were doing, and that it could not have negative effects on the markets that did exist for the books. (Whether it has positive effects is traditionally considered of no importance)
So for your plan to copy a lot of library books and to share them with others, for the purpose of reading them for free, I predict it would not be fair use.
Google OTOH isn't reading the books themselves, just creating indices of the text. And they aren't allowing people to access the database in such a way as to read entire copyrighted books without permission, just to find out whether a book contains a particular bit of text or not.
The US didn't join Berne until 1989, though, so obviously it isn't a big problem. The classic workaround is for the work to be simultaneously published in a Berne country (usually it was Canada) and then you still get other Berne countries protecting it.
Of course, it'd be better for everyone to throw out Berne. There shouldn't be copyright treaties; each country should do what's best, but unilaterally offer national treatment to foreign authors (i.e. treat a foreign work like a domestic one) and try to informally avoid conflicts that would require an author to choose between copyrights in country A v. country B. The actual amount of protection, if any, should be a domestic issue, however.
The US Constitution was written in the late 18th century, and at that time, 'science' meant knowledge (which a novel certainly would be part of), while 'useful arts' means applied science or technology. Strangely, the conventional meanings of science and art have more or less swapped places since then.
A few instances of the earlier meaning of art survive, though. Patents deal with state of the art technology, but you can't get a patent if the invention has already been invented, as evidenced by looking at the prior art, or if you fail to disclose the patent in ways that a person having an ordinary skill in the art could understand.
So Stephen King novels would just be science; not a useful art.
It is legal, and has been legal, but it depends greatly on the details, such as for what purpose you're copying. If you're copying them just to have your own copy without having had to buy one, it's likely not fair use. If you're providing a service like Google's, you are more likely to be acting legally.
Patent attorney here. A patent owner has the right to exclude people from making, using, importing, selling, or offering to sell the invention. Merely reimplementing or running a patented process (or using an infringing device, etc.) can be infringement, without distribution (and subject to very limited experimental use defenses). Unlike in copyright law, distribution isn't the crux at all.
Copyright attorney here. Copyright infringement doesn't hinge on distribution. Distributing copies is just one way in which infringement can occur. Making unauthorized copies of copyrighted works, or even sufficient partial copies (and what's sufficient can be very small; in one noteworthy case, Bridgeport v. Dimension Films, it is suggested that even one note from a song would suffice) is also just as infringing. And there are several other forms of infringement. Since it's a strict liability statute, it's easy and in fact extremely commonplace for people to infringe all the time without even knowing about it.
This "feature" of patent law is not very well known to the public, because the type of infringement above is nigh impossible to uncover and is value negative to pursue.
That's why copyright infringement cases usually involve publicly distributed infringing material. However, our overly litigious bad actors in the various publishing industries haven't let the negative costs, difficulty of investigation, and the general foolishness of trying to stop all infringement stop them. Instead they keep trying to externalize the cost and labor. So, you know, you should probably beware of any efforts of patent holders to use the government or third parties to help enforce patents (e.g. by criminalizing patent infringement, or having customs look for and block import of infringing goods).
Yet you can still buy new production 12AX7 and other vacuum tubes!
Yeah, but try getting vacuum to put in those tubes -- there's nothing available.
That's why their leaders come to the USA for treatment.
As an American, I don't see how I benefit from a health care system that according to you is good at providing care to the wealthy and powerful of the world, but which we also know is crappy at providing care to the rest of us. Are you suggesting that good health outcomes for select individuals trickle down?
If a health care system that worked better for the vast majority of Americans happened to also discourage the elite from treatment here, I'm prepared to live with that. In no small part this is because under the current system I might not wind up living at all.
The last time somebody tried this was the Library of Alexandria which required the dictates and commands of several kings. Even then they had to pay money to the Athenians to get some documents.
Well, that was because the Library wanted to make a copy of the original manuscripts of Aeschylus, Sophocles and Euripides. Athens was reluctant to allow the manuscripts to be sent to Alexandria (presumably they would've preferred to have them copied in Athens), but ultimately allowed it provided that the Library provided a cash deposit to ensure the safe return of the manuscripts.
Instead, predictably, the Library kept the originals and returned the copies, and was happy to forfeit the money, which was almost 500 kilograms of silver.
The normal M.O. of the Library was just to require that all documents going through Alexandria be available for copying by the Library, and to be a major port and trading hub so that a lot of documents happened to pass through.
It all worked pretty well (for a library that relied on hand-copying, the printing press not being invented yet) until some assholes burned the place down.
There was a crappy icon dock extension in System 7.5 that was sort of like the modern ability to pin programs to the taskbar though.
I can't help but think that you're thinking of DragThing. It wasn't an extension, though, it was its own program. And it certainly wasn't crappy.
Eject a disk by moving it from my desktop to the trash with all the files I want to delete? Makes sense.
Well, to understand this, you have to recall that early Macs had to be able to run off of a single floppy drive. Users might buy a hard drive or a second floppy drive (or if they had a dual-floppy SE, a third floppy drive for some reason) but it couldn't be relied on. Yet they still had to be able to tolerate having the OS disc ejected at times.
So there was a distinction between physically ejecting a disc while keeping it mounted (which was represented onscreen by a greyed out disc icon) so that you could copy to it, and both physically ejecting _and_ dismounting a disc.
The formal way that you were supposed to do this was by using menu commands. The Eject command was for eject-but-keep-mounted while the generally ignored Put Away command was for eject-and-dismount. It was also possible to use Put Away on an already greyed out, ejected-but-mounted disc icon.
User testing showed that this was inconvenient, and one of the OS developers eventually created a shortcut for the Put Away command, which was to drag a disc icon to the trash. It wound up being so popular that it shipped.
Apparently there had been some thought at the time about changing the Trash icon into some sort of Eject icon in the case of ejecting a disc, but apparently this was felt to be confusing or too difficult, so it wasn't done. In OS X the idea was revisited, and now the Trash icon does turn into a standard Eject icon when you're dragging a disc.
In any case, in real life, whatever confusion dragging disc icons to the trash might have caused, everyone got over it basically immediately.
Switching tiled applications makes the one menu bar change? Sure. It's not like moving the cursor half the screen for each click is a waste of time.
It's not; since there's nothing above the menubar, you can just slam the mouse up. It turns out to be faster and easier than having multiple menu bars. The Mac and Lisa groups did consider per-window menubars, but having tested the idea, it was rejected. For example, here's some polaroids of a screen from 1980 showing a Lisa with a menu attached to the bottom of a window: http://www.folklore.org/images... Later that year, the menu had moved to the top of the windows: http://www.folklore.org/images... And early the next year, it finally settled at the top of the screen: http://www.folklore.org/images...
For example, if you were to open a fast food shop and call it Walt Disney's Fries Company, the Walt Disney cartoon and theme park company may try to fight this, but they wouldn't stand much of a chance.
Ha, no. They would destroy you so utterly that even brave men would only whisper about you when safe behind locked doors, and as for the store itself, it would be smitten so hard that nothing but twisted weeds would ever grow on that spot again. You might want to read up on trademark dilution.
It depends.
There's really no such thing as a copyright on a character; there's just copyrights on works, which characters may be part of. Also, where more than one work is at issue, note that the copyright for derivative works only applies to new material added in the derivative work; it doesn't protect the pre-existing material at all.
Not all characters are defined well-enough to be protectable by the copyright to begin with. The degree of characterization matters. A character that's nothing more than a chessman could get reused pretty freely. An extremely well-defined character probably couldn't be. This is like the difference between a butler that did it, but about whom nothing else is told in the book, and a well-defined butler (well, valet, technically) like Jeeves, where we know a lot about him (preferred foods, what he reads, his club, things he knows about, etc.)
So assuming a protectable character, the issue basically boils down to whether the first work in which that character appeared is in the public domain. If it is, then the character -- as he was defined in the public domain material -- is fair game. Otherwise, you'd just be making a derivative of a copyrighted work, which is infringing. Remember, character attributes that first appear in works that are still copyrighted are not available.
As for a trademark, it would unavoidably be lost in this scenario. A trademark can only exist where it serves to indicate that goods bearing the mark originate from a particular source. Since copyright law would allow anyone to make copies or new works which included the mark, and since in the event of conflicts, copyright law trumps trademark law (many people in this discussion have noted the Supreme Court's opinion in Dastar on this point), the mark could no longer indicate that copies shared a common source, and so it would become an unprotected generic mark. If that were not so, the trademark would act like a copyright, which would be unconstitutional.
Just because the story is in the public domain, that doesn't mean you have the ability to use the trademarks.
Actually, it's usually not a problem. Here's the Supreme Court, weighing in in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23 (2003). The thing to know about the case is, there was a tv series based on a book; the book was copyrighted, but the tv series' copyright hadn't been renewed (back when that was a thing), so it had entered the public domain. Dastar made copies of the public domain tv show and sold them. Meanwhile, Fox got the tv rights to the book, then made copies of the tv show and sold them. Fox sued on trademark grounds (specifically section 43 of the Lanham Act).
Actually, you cannot trademark the mere title to a work.
In order to just function as a trademark, a mark must indicate that all goods bearing a particular mark originate from the same source; merely identifying the good is insufficient.
The title to a work merely identifies the work. That's not enough to be a trademark. Only if there are multiple works, forming a series, and the mark is a shared part of the title indicating that all the works are part of that series, and that anything in that series shares a common source, can there be a real trademark.
So in 1991, the book DOS for Dummies was released. If that had been the end of it, it wouldn't be trademarkable. But it was followed up by Windows for Dummies and about a million others, and so FOR DUMMIES became a protectable mark. (And apparently there had been a single book by a different author back in the 70's called Auto Repair for Dummies, but since it was a standalone, it didn't have prior rights to the mark)
This is why the Harry Potter books are all titled Harry Potter and the Something Something. Otherwise they'd probably indicate somewhere on them that they were part of the Harry Potter series (as the Lord of the Rings books, among others, do).
Sorry, but that won't work.
You're citing 17 USC 106A. That only applies to the author of "a work of visual art." That term is specially defined in the Copyright Act, in the definitions section at 17 USC 101. The relevant parts of the definition are:
It really isn't possible for anything online to qualify, due to the requirement of there being only a single copy (a copy is defined in the Copyright Act as being a tangible object containing the work; a computer file isn't a copy, but a hard drive can be, which means that if other people can download it, they're necessarily making a new copy), or no more than 200 copies if each copy is signed and numbered and which are a limited edition.
What this is actually meant for is fine art, like a painting, art prints, etc. Not art posted online. It was a nice try, but you've got to check the statute more thoroughly if you want to cite it correctly.
The Mickey Mouse character has trademark protections, not copyright protections.
No.
Characters are not creative works themselves, eligible for copyrights, but where characters appear in copyrightable creative works, the work itself, including the sub-part of the work which is the description of the character, is copyrighted. If the description is very minimal, a third party may be able to avoid infringing on the copyright of the work even though he reuses the character without permission. On the other hand, if the character is described in quite a bit of detail, reuse of that character may rise to the level that could qualify as infringement. If the character reappears in other works, the qualities of the character added there may also be copyrightable. If the original work in which the character appears enters the public domain, so does the character -- as he appeared in that work. Later changes to the character may remain protected until the works in which those changes first appeared also enter the public domain.
Character copyrights is a commonly understood shorthand for this concept of copyrights in those portions of a work in which a character appears.
For a fictional character to be a trademark, it must be used in a trademark capacity; just appearing in a creative work will not suffice. The character must be used in such a way as to indicate that the source of the goods or services that it's used in conjunction with are understood by the public to all originate from a particular source. When the character is used with goods that could come from any source, it has no function as a trademark.
For example, in the US, all of the original works by JM Barrie in which Peter Pan appears are in the public domain. Thus, anyone is free to make their own creative works featuring the Peter Pan character, plots, etc. And boy, do they ever -- I think there's yet another Peter Pan movie adaptation coming out this year, and there's always plenty of books, comics, cartoons, etc. Since anyone can do it, no one can have a trademark on the Peter Pan character with regard to any sort of creative work; the character is utterly incapable of indicating a single source.
However, there is a PETER PAN brand of peanut butter. The company that makes it has a trademark on it, and a perfectly good one. There's only one source of PETER PAN-brand peanut butter, and the public domain status of the character for creative works has no relevance in the field of peanut butter. Ditto for KING ARTHUR for flour, or BIBENDUM as used with tires.
Mickey Mouse's original appearance was in a still-copyrighted short film, so there is a copyright that protects the use of the character. There is also a well-known MICKEY MOUSE trademark used on all manner of products. It can be used in conjunction with creative works because no one else is allowed to use them with such works due to the copyright; thus all such works must originate from one source, and trademark protection is possible. When that first short film enters the public domain however, anyone can use the Mickey Mouse character in creative works, and this will kill the MICKEY MOUSE trademark with regard to goods that are creative works. The mark will only retain vitality in unrelated fields.
Derivative works could be created of Steamboat Willie once the copyright expires, but COULD *NOT* feature Mickey Mouse because Mickey Mouse would still be protected by trademark.
Wrong. Derivatives could feature Mickey Mouse, and the MICKEY MOUSE trademark applicable to such things would have ceased to exist at the same time as the copyright.
Those trademark protections would not be able to keep people from making copies of Steamboat Willie because Steamboat Willie itself always had authorized use of the character.
Wrong. First, because as noted the trademark would be dead at that point. Second, you utterly don't understand how trademarks work; if anyone can produce a
if they used the LEGO term, even to say they were compatible with LEGO, even with all explicit trademark acknowledgements, it would be at LEGO's discretion to either issue a C&D or not to bar them from continuing to refer to them, unless they company were somehow able to show that they were not a competitor for LEGO in any way
Sigh. I'm getting tired of having to do your homework for you:
That's from Toyota Motor Sales, Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010). Hint: Toyota's LEXUS mark was at issue, and had been used by a competitor, and the court did not come down on the side of Toyota.
Nominative use is a doctrine in US trademark law by which parties other than a trademark holder can use a trademark without permission if:
1) The product is not readily identifiable without using the mark. (LEGO bricks are not readily identifiable without using the LEGO mark to refer to them; otherwise you'd have to say something stupid like 'plastic toy bricks made by a well-known Danish plastic toy brick company')
2) The defendant does not use more of the mark than necessary. (The word LEGO in an ordinary typeface would be fine; the red, yellow, black and white square-shaped LEGO mark, with its distinctive balloonish typeface, on the other hand, would be too much merely to indicate compatibility)
3) The defendant cannot falsely suggest sponsorship or endorsement by the trademark holder. (This is typically done by not using the mark in a way that suggests a relationship, while also disclaiming any relationship. It doesn't require not using the mark at all, however; the public recognizes that not all uses of a mark indicate endorsement)
Note, there is no requirement that the defendant claiming nominative use not compete with Lego. That's perfectly fine. If I make toy bricks and I want to say that based on a survey, children prefer my bricks 10 to 1 over LEGO brand bricks, I'm totally free to do so. (Provided, of course, that I have got such a survey; I can't just make crap up)
The decision of whether advertising should directly refer to competitors (e.g. People who took the Pepsi challenge preferred Pepsi to Coke) or whether it should not (e.g. Our dishwashing liquid works better and faster than brand X) is entirely one of the advertiser's preference. There is no legal requirement compelling one over the other, provided that the ad is truthful and (to some extent) not misleading.
I am suggesting that Steamboat Willie describes the cartoon, and Mickey Mouse describes the character.
If the MICKEY MOUSE mark describes the character, and the copyright on the Mickey Mouse character lapses such that anyone can create works featuring the Mickey Mouse character (which is a copyright issue), the MICKEY MOUSE mark no longer is capable of indicating that all such marked goods originate from a common source, which is a fundamental requirement for a trademark. Thus, the MICKEY MOUSE trademark is lost with regard to such goods, e.g. DVDs, comic books, and the like.
So if one makes an unaut