Friday, March 15, 2013

Why Not Get Rid of Copyright When Trademarks Are So Much Better?

Dear Rich: I recently looked into whether Mickey Mouse or any of Walt Disney's old videos like Steamboat Willie were in the public domain. They were created in the late 1920's. I'm a little shocked to realize none of them are public domain. I don't understand the details, but what I understand is Mickey Mouse is a "trademark" of Disney, as are several of its characters. That makes me wonder, why don't we just get rid of copyrights altogether, and get these far superior "trademarks" that last forever on everything? What is stopping me, or anyone else from "trademarking" everything that I create? Why is copyrighting essentially "free", and trademarking very costly? Why isn't trademarking free? I'm not asking for a prescriptive rehashed response. I'm really looking for a critical poke at this entire system. Here at Dear Rich headquarters we're not into critical pokes, we're more in to  prescriptive rehashed responses that have some practical value. In this case, the best we can do is answer some of your questions.
  • Why isn't Steamboat Willie in the public domain? Works published before 1923 are in the public domain. Steamboat Willie debuted in 1928 and was later renewed. It's true that there is still some dispute as to whether copyright in the film was lost due to an issue over "formalities," but nobody has used that evidence to challenge Disney in court. So the presumption is that Steamboat Willie has not fallen into the public domain. It's also true that the copyright extensions that have kept Steamboat Willie alive were partially funded by Disney lobbying efforts but that shouldn't surprise anyone. Many, if not most, laws are the result of lobbying efforts. Separate from Steamboat Willie films (and any other narrative content), the character of Mickey is protected under copyright and trademark law. When Steamboat Willie falls into the public domain, you are free to copy those videos. But you will not be free to create new Mickey video or artwork-- that is you can't create new examples of the character. 
  • Why not trademark everything? Because you can't. Assuming you're referring to registering the trademark with the U.S. Patent and Trademark Office, you must go through an examination procedure that's fairly rigorous. You must demonstrate that consumers associate your business with the mark on a specific class of goods. In addition, there are lots of rules and hurdles to overcome. For example, a single book cannot acquire trademark protection, only a series of books. Only characters that have achieved significant recognition make it into the pantheon of character trademarks.
  • Why is copyright free and why are trademarks costly? The fee for registering ($35-$65 for a copyright v. $275 to $325 for a federal trademark registration) is higher for trademarks but by itself, that's not an accurate measure of the cost of protection. The fees merely reflect the level of government examination (little or no substantive examination at the Copyright Office versus a full exam for trademarks at the USPTO). That may be why the validity of a federally registered trademark is sometimes easier to defend than the validity of a copyright registration. In any case, these initial fees are the starting point for protection; the real cost is in the policing and enforcement. By those standards, the costs of hiring lawyers, writing letters and going to court, are fairly similar for copyrights and trademarks.
  • Why don't we get rid of copyrights? Sometimes it feels like we have.

1 comment:

BrittReid said...

Note: the copyrights for the first Mickey Mouse comic strips were NOT renewed.
However, when a comic publisher attempted to reprint them in the 1990s, Disney sued them.
Even though they would eventually win, the publisher decided the comic wasn't worth the cost of a protacted court battle.