So, the rules of copyright are conceptually very simple:
- Authors own a copyright over their work for a limited amount of time, then it is escheated to the public domain. While a work is under copyright, you need to get permission to copy it.
- You can't copyright ideas - that requires owning a patent, which has a far higher bar[0] to clear in order to get. You only get copyright over expressions of ideas - at a minimum some combination of uncopyrightables that itself can be considered to have a "thin copyright".
- Works that are "based on" another work are called derivative works. If a work is under copyright, you also need permission to make derivative works. If you got permission, then the new work gets its own separate copyright owned by the new artist.
Now, you would assume that whatever is in the public domain is public domain, right? Well, only sort of. Because derivative works get a fresh shiny new copyright, that casts a shadow on the public domain. So I can publish the original text of Shakespeare's Romeo and Juliet, but that doesn't mean that I can perform West Side Story just because it's a derivative of Shakespeare. But at the same time Jerome Robbins can't sue me for performing Shakespeare. The exact shape of a derivative's copyright is the amount of creativity added, and no more.
Therefore, I can still make my own twist on Shakespeare. But I have to be careful. If I decide "hey let's make our own 1950s New York gang warfare take on Romeo and Juliet", then I'm getting closer to just ripping off West Side Story. In fact, there's even a term-of-art for the minimum quanta of copyright: "thin copyright", which is applied to creative combinations of uncopyrightable elements.
Sherlock Holmes is a series of detective stories published as serial fiction[1]. Notably, the series was ended by the creator killing off Sherlock[2], and then brought back about a decade later. This is known by Sherlock fans as "The Great Hiatus"; and after Sherlock was brought back the author started writing him with a lot more emotion.
Let's go forward about one life plus 70 years ahead of time. You're a descendant of Arthur Conan Doyle and your gravy train is about to end, because people can just use Sherlock Holmes and not pay you anymore. Except that only part of the franchise is in the public domain. Specifically the part before the Great Hiatus. And afterwards, Sherlock is arguably a different character. So obviously, if someone makes a Sherlock Holmes adaptation where he acts like post-Hiatus Sherlock, then clearly it's infringing the copyrighted stories!
And if it weren't for those meddling kids, the estate of Arthur Conan Doyle would have gotten away with it, too. Actually, I'm kinda toning down the original argument. They thought that they could recopyright all of Sherlock Holmes by just owning one of the stories with him in it, which is not how copyright works. "Only copyrighted Sherlock is allowed to emote" was their second argument, which they abandoned when settling with Netflix.
It just occurred to me: next year, Mickey Mouse is public domain. I REPEAT: THERE IS ONLY ONE YEAR UNTIL THE COPYRIGHT ON STEAMBOAT WILLIE EXPIRES. So we're going to see all sorts of litigative fireworks as Disney tries to hold onto that cartoon mouse for dear life.
[0] Copyright is automatic, patents require a filing fee. Please stop laughing.
[1] Specifically, as part of a larger magazine. Victorian Brits subscribed to magazines to read Sherlock Holmes in the same way that Japanese teenagers subscribe to Shonen Jump today to read One Piece.
[2] Which was just as controversial and shocking as, say, a manga ending its run in a magazine today. Sherlock Holmes is basically the ur-fandom that all other fandoms were cloned from.
The Supreme Court is already side-eyeing attempts to construct copyright out of trademark ownership. Copyright law itself has a federal preemption clause, which itself was a reaction to states passing their own perpetual music recording ownership schemes, but would apply to any attempt to cobble together non-copyright claims into something that works like a copyright.
For example, states have "right of publicity" laws, but you cannot use them to overturn, say, the copyright interest that a paparazzi has in an unauthorized photo of you. Yes, there are literally court cases in which people have been photographed by paparazzi, reused the photo that the paparazzi took, and then were sued for doing so. Celebrities will counter-argue right of publicity, but federal copyright preemption dissolves those claims[0].
Furthermore, trademark law only specifically applies to source-identifying contexts. And the standard for confusing trademarks is lower than the standard for derivative works in copyright. A year from now when Mickey Mouse hits public domain, if I want to just use him in a book, that's not a trademark violation. If I want to put him on the cover, then that's a trademark violation - but only if the specific way I drew him looks like the trademarked Disney logo. If I were to draw, say, a hyper-detailed portrait painting of the mouse and put that on the cover, that would be obviously not identifying Disney as the source of the work and thus not a trademark violation.
Keep in mind: this is already happening with Winnie the Pooh. There's an indie filmmaker who is making an unlicensed horror movie where the cartoon bear is a murderer. Nevertheless, he has Winnie the Pooh in the title. Nobody is going to confuse this for a licensed Disney film, however, because the cartoon bear is a murderer.
[0] Yes, this also implies that the rights of artists trump the right of privacy in the US, at least when no other crimes are committed. In, say, France, this is the opposite: public photography requires permission from every person in the photograph, so photographing large crowds is about as legally risky as training an AI to draw with copyrighted images in the US.
Yup, Disney is trying their absolute hardest, everything recent from Disney has come with the steamboat intro as their "trademark". So they'll hit people for trademark infringement, after they already trashed/influenced copyright law to get an extension in the first place. Despicable.
Judging by my search through the US trademark database, it looks like the only active trademarks they have are for the words "Mickey Mouse" and not the character design? The actual character only shows up in dead trademarks, as far as I can tell. If this is true, any use of Mickey Mouse as he appears in Steamboat Willie, without calling the character Mickey Mouse, could be legally defensible... if you're willing to go up against Disney lawyers in court
> Authors own a copyright over their work for a limited amount of time, then it is escheated to the public domain. While a work is under copyright, you need to get permission to copy it.
This is the absolute dumbest idea I could have imagined. Like, this is the sort of thing you'd make as an argumentum ad absurdum against copyright maximalism. You literally cannot legally create new works without an unpaid public domain backing them.
...That being said, some kind of state-run licensing scheme could fix some of the bigger problems with long copyright terms. i.e. maybe you only get 20 years of fully exclusive licensing, and then the rest of your life+70 term is compulsory licensing royalties from the state. But I doubt you'd ever see that given how the entire international copyright system is basically non-negotiable nowadays.
They usually solve that problem by requiring state royalty only if the work has elements derived from the work that is in the public domain but nothing derived from currently copyrightable works. Algeria and Burundi are examples of countries that have paying public domain.
The standard for infringement in trademark law is “likelihood of confusion”. Specifically, the question of infringement is whether a junior user’s use of the mark is likely to confuse a member of the public as to the origin of the goods or services.
After Steamboat Willie is out of copyright, anyone will be able to distribute copies of it. If distributors use the mouse image in a way that confuses consumers into thinking their copies came from Disney, however, then they may infringe Disney’s trademark.
So, the rules of copyright are conceptually very simple:
- Authors own a copyright over their work for a limited amount of time, then it is escheated to the public domain. While a work is under copyright, you need to get permission to copy it.
- You can't copyright ideas - that requires owning a patent, which has a far higher bar[0] to clear in order to get. You only get copyright over expressions of ideas - at a minimum some combination of uncopyrightables that itself can be considered to have a "thin copyright".
- Works that are "based on" another work are called derivative works. If a work is under copyright, you also need permission to make derivative works. If you got permission, then the new work gets its own separate copyright owned by the new artist.
Now, you would assume that whatever is in the public domain is public domain, right? Well, only sort of. Because derivative works get a fresh shiny new copyright, that casts a shadow on the public domain. So I can publish the original text of Shakespeare's Romeo and Juliet, but that doesn't mean that I can perform West Side Story just because it's a derivative of Shakespeare. But at the same time Jerome Robbins can't sue me for performing Shakespeare. The exact shape of a derivative's copyright is the amount of creativity added, and no more.
Therefore, I can still make my own twist on Shakespeare. But I have to be careful. If I decide "hey let's make our own 1950s New York gang warfare take on Romeo and Juliet", then I'm getting closer to just ripping off West Side Story. In fact, there's even a term-of-art for the minimum quanta of copyright: "thin copyright", which is applied to creative combinations of uncopyrightable elements.
Sherlock Holmes is a series of detective stories published as serial fiction[1]. Notably, the series was ended by the creator killing off Sherlock[2], and then brought back about a decade later. This is known by Sherlock fans as "The Great Hiatus"; and after Sherlock was brought back the author started writing him with a lot more emotion.
Let's go forward about one life plus 70 years ahead of time. You're a descendant of Arthur Conan Doyle and your gravy train is about to end, because people can just use Sherlock Holmes and not pay you anymore. Except that only part of the franchise is in the public domain. Specifically the part before the Great Hiatus. And afterwards, Sherlock is arguably a different character. So obviously, if someone makes a Sherlock Holmes adaptation where he acts like post-Hiatus Sherlock, then clearly it's infringing the copyrighted stories!
And if it weren't for those meddling kids, the estate of Arthur Conan Doyle would have gotten away with it, too. Actually, I'm kinda toning down the original argument. They thought that they could recopyright all of Sherlock Holmes by just owning one of the stories with him in it, which is not how copyright works. "Only copyrighted Sherlock is allowed to emote" was their second argument, which they abandoned when settling with Netflix.
It just occurred to me: next year, Mickey Mouse is public domain. I REPEAT: THERE IS ONLY ONE YEAR UNTIL THE COPYRIGHT ON STEAMBOAT WILLIE EXPIRES. So we're going to see all sorts of litigative fireworks as Disney tries to hold onto that cartoon mouse for dear life.
[0] Copyright is automatic, patents require a filing fee. Please stop laughing.
[1] Specifically, as part of a larger magazine. Victorian Brits subscribed to magazines to read Sherlock Holmes in the same way that Japanese teenagers subscribe to Shonen Jump today to read One Piece.
[2] Which was just as controversial and shocking as, say, a manga ending its run in a magazine today. Sherlock Holmes is basically the ur-fandom that all other fandoms were cloned from.