It’s Copyright Week, and I’ve kicked it off with a post at the Electronic Frontier Foundation’s Deep Links explaining why, regardless of copyright term extension, Mickey Mouse will probably never be “free” — but that doesn’t mean that Disney is acting irrationally in its fight as hard as they are for eternal copyrights.
Rather, they’re acting in their cold-blooded self-interest, playing a very long game indeed.
That’s because Disney has another body of law it can use to suppress creativity and commerce involving Mickey Mouse, whether or not “Steamboat Willie” and “Plane Crazy” are in the public domain: trademark law. If you sell something Mickeyish—including its public domain cartoons—Disney can ask a court to stop you because of consumer confusion. People who buy the cartoons from you may think they’re buying from Disney, and trademark exists to stop that kind of confusion. Back to court with you!
If you want to make a new Mickey Mouse thing, you’re much better off arguing fair use than public domain, anyway. Fair use covers transformational use for commentary, parody, education and many other uses, and even though it’s a hard, “fact-intensive” thing to argue in court, you’ll get a lot more leeway from fair use. If you’re trying to make new Mickey stuff with the “public domain” Mickey from the 1928 cartoons, you’ll have to be careful not to encroach upon the visual elements of Mickey that Disney, Ub Iwerks and the other artists who worked on the shorts developed over time. Fair use has no such constraint.
We’ll Probably Never Free Mickey, But That’s Beside the Point
[Cory Doctorow]
