Friday, March 15, 2013
Why Not Get Rid of Copyright When Trademarks Are So Much Better?
- 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.