UK Copyright Expiration On Popeye May Be A Test For Mickey Mouse
from the i-yam-what-i-yam dept
A bunch of folks have submitted the news that the cartoon character of Popeye is about to go into the public domain in the UK, and it should be quite interesting to see what happens next, as it will be something of a preview of the eventual Mickey Mouse fight that will be coming. To be honest, I'm surprised that were didn't hear attempts to extend basic copyright protection in the UK to prevent this from happening in the first place, as has happened in the past every time Mickey Mouse is about to fall into the public domain. I guess Disney just has more lobbying clout.However, what will be most interesting is to see what happens next. Disney was able to continually extend copyright to keep Mickey Mouse out of the public domain for years -- in part because copyright wasn't an issue that the general public cared about or that really impacted them in a noticeable way. Obviously, over the past decade, that's changed quite a bit. Disney must know that it will have an awfully difficult time extending copyright yet again (though, the company will almost certainly try). In the meantime, though, what happens with Popeye in the UK may be a rough guide as to what will happen should Mickey Mouse hit the public domain.
And... the reality is that not very much different might happen.
That's because even though the copyright on the character has fallen into the public domain, the trademark remains -- and the current holder of the Popeye trademark in the UK, King Features (owned by Hearst), is expected to "protect its brand aggressively." That means people will still be quite limited in how they can use Popeye. If King Features is able to successfully use trademark law to keep Popeye under control, perhaps Disney won't go quite so crazy trying to extend the copyright on Mickey Mouse again... Either way, this little "experiment" will be worth watching.
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Filed Under: copyright, mickey mouse, popeye, public domain
Companies: disney, hearst corporation, king features
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Please send royalty payments within ten business days
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Are you for real?
Perhaps the drink fuelled new years celebration has dulled the sarcasm detector in my brain - I can't tell.
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Re: Please send royalty payments within ten business days
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Re: Please send royalty payments within ten business days
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Trademark?
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Re: Trademark?
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Re: Re: Trademark?
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Re: Re: Re: Trademark?
As to the Popeye trademark, I'm sure a little investigation at the USPTO will tell exactly what it covers.
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Re: Re: Re: Trademark?
Basically the actual UNcopyrighted content could be freely distributed at will, but any unauthorized advertising or promotion involving the character would be under scrutiny. New works would probably be subject to the trademark, but derivative works of uncopyrighted content would be an interesting grey area.
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mickey
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Don't forget - copyright protection can be evergreened
http://duncanbucknell.com/blog/283/Copyright-evergreening
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You know mike what will happen
The person to decide this is Andy Burnham yes the same who wants to censor the web read everyones emails and various other restraints. So all that will happen disney throw a few £s at him and copyright extended for about a thousand years.
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Re: You know mike what will happen
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Re: Re: You know mike what will happen
Perhaps I have missed it over the years, but I am not aware of any case directly on point that is above the "pay grade" of federal district courts and involves the competing concepts of "entry into the public domain" versus "likelihood of confusion". While considering this throw in the issue of state trademarks and watch as courts try to grapple with somehow reconciling this "mess".
To make it even more interesting, let's throw in a service mark registration, both state and federal, directed to the provision of "entertainment services".
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Re: Re: Re: You know mike what will happen
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mickey mouse will never be public domain
disney has billions invested in tilting copyright law in its favor. that kind of money doesn't just go away over night.
even in some sort of black swan scenario where disney forgets to write all of it's checks to the government and disney is punished out of spite, disney would still keep control. they will simply eschew the legal system and use armed force to protect it's profits the way that the mafia or hamas does.
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trademark
[http://www.uberreview.com/wp-content/uploads/2006/12/mickey-mouse-usb-flash-drive.jpg] is a good example of a 'branded' product. If anyone else made something like this Disney could clobber them on trademark alone, with or without a copyright on any particular work containing Mickey Mouse.
Popeye and the word 'Popeye' as usually printed in the cartoon could likewise be treated as a trademark, although the company using it don't really seem to have established it as such anywhere near as strongly as Disney have. And for this reason, I don't think this will turn out to be a very good example at all.
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Re: trademark
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Re: Re: trademark
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Perhaps Walt never got the memo?
http://tess2.uspto.gov/bin/gate.exe?f=doc&state=fnuucj.4.102
http://tess2.uspto.gov/b in/gate.exe?f=doc&state=fnuucj.4.467
and the name "Walt Disney"
http://tess2.uspto.gov/bin/gate.exe?f=doc&state=fnuucj.4.468
I can't find a trademark on the "Disney" as written like this
http://tess2.uspto.gov/bin/gate.exe?f=doc&state=fnuucj.25.318
But I suspect it's covered by one of the "Disney - Typed drawing" registrations or I just haven't been looking hard enough.
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TM v CR
As for use of trademark as infinite copyright, it is an interesting question, but I think a resolvable one. The courts have had little patience for attempts to use trademark as a patent substitute (see the famous Kellogg v Nabisco "shredded wheat" case). I imagine the courts will conceivably be strict, regarding CR, as well.
Either way, there are a couple of ways that TM/CR may be kept separate. First, it doesn't make sense to refer to Popeye or even Mickey, in an all-encompassing sense, as a TM. TMs are generally considered rights appurtenant--they are built through use, not through merely existing. Popeye or Mickey would have to be used in a specific way, repeatedly, to be used *AS A TM*. The mere likeness of either character in any random pose or gesture would not qualify as a TM (see Rock & Roll HoF v Gentile) since the character would not be used as a TM, but would be, simply, the character itself. For an example of a bona fide TM, think of the aforementioned Mickey silhouette of one big circle flanked by two smaller circles. I'm not sure how Popeye has ever been used as a TM.
Furthermore, TM/CR are USED in vastly different ways. TM is essentially a brand, a signifier. It is based in the Commerce Clause. CR refers to a created work and is based in Article I. When something falls out of CR, but is still covered under TM, what remains relevant is USE of the mark, not really the underlying creative works.
What that means is that, to the extent someone uses Popeye (or Mickey) as a TM--as a brand--to sell products, it will likely be enjoined. To the extent someone uses Popeye/Mickey within the context of a creative work, it will likely be available for free use. A wild card could arise in how strictly and broadly the courts try to assert the (controversial) dilution doctrine.
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Oops
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the new Mickey
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