UK Copyright Expiration On Popeye May Be A Test For Mickey Mouse

from the i-yam-what-i-yam dept

Wed, Dec 31st 2008 5:23pm — Mike Masnick

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

25 Comments

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Mark Regan, 1 Jan 2009 @ 12:50am

Please send royalty payments within ten business days
This is your notice that you have used in interstate commerce a Registered Trademark owned by my client, without authorization or acknowledgment.

Accordingly you are requested to submit our standard royalty payment of $500 ($100 per use) within ten business days of posting or service of this notice upon you or your agent.

Anticipating from our previous experience with you and your site, and your repeated failures to reply to or acknowledge the legitimacy of our previous requests for payment, this is also your formal legal notice that we intent to take every legal means to assert and protect our rights pursuant to federal trademark law, statutes and regulations.

Therefore, in the absence of receipt of a payment from you or your agent, you may expect to receive a visit from our process server during your normal working yours.

Thank you in advance for taking the opportunity to address this matter in a business like fashion instead of with the hostility you have normally employed upon receipt of our previous attempts to collect legitimate royalties from you.

By the way, the last process server who visited your office was amused by your tirade of threats and claims you would have his job. We promoted him, and presented him with an award at our Christmas Banquet for videotaping his encounter with you, to illustrate for the benefit of our other process servers, how he handled your recalcitrant attitude and menacing demeanor with the utmost respect he could, under the circumstances.

For your information, Vito and Butch will be delivering your next legal process. Vito will be the guy in the expensive looking tailored suit, and Butch is the guy with the shaved head and the outline of a tire iron under his jacket. Please do not treat them the same way as you treated the last couple of process servers -- they are still in therapy, and you will be receiving a subrogation claim from our health insurance carrier by separate courier, who, for your information, will be escorted by an undercover state trooper.
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Lawrence D'Oliveiro, 1 Jan 2009 @ 1:22am

Trademark?
So what exactly will the trademark be covering, if not the cartoon character? Where is the possibility of confusion in (mis)use of the trademark, if you're using it precisely to refer to the item that the trademark is supposed to be referring to anyway?
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Peet McKimmie (profile), 1 Jan 2009 @ 2:14am

Re: Trademark?
I believe the trademark will cover the textual, rather than the graphical aspects of the character, such as his name, the names of his associates, catchphrases etc., so while it would be legal to put a drawing of Popeye on, say, a box of cereal, you would have to pay to put his name beside it or have him saying anything recognisable.
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Alex (profile), 1 Jan 2009 @ 2:14am

As an EU member, the UK cannot unilaterally extend copyright terms. It can only be changed at EU level.
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bikey (profile), 1 Jan 2009 @ 2:44am

mickey
It's not so much that the 'trademark remains'. The trademark appeared when the copyright ran out (50 years, as it then was, from 1929), and if anyone had had the money, time and inclination, it probably never would have survived a challenge. Mickey shouldn't be a trademark - he did not make the T-shirts, etc. on which he appears. He does not distinguish his goods from those of others. He is a character who should inhabit the public domain, just like Betty Boop. This is where big money comes in - who would bother, against the Disney phalanx, to point this out in court? So don't hold your breath. He's incarcerated in IP for the duration.
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Duncan Bucknell, 1 Jan 2009 @ 2:46am

Don't forget - copyright protection can be evergreened
I don't think that this means that copyright protection for Popeye is dead. It can easily be evergreened, see:

http://duncanbucknell.com/blog/283/Copyright-evergreening
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Danny, 1 Jan 2009 @ 3:16am

Are you for real?
This has to be sarcasm. I realise from previous posts that you claim to be a PI. But seriously - is this 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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mike allen, 1 Jan 2009 @ 4:27am

You know mike what will happen
First the UK can extend copyright without the E.U Alex is wrong on that, post #4
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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Just Me, 1 Jan 2009 @ 4:41am

Re: Please send royalty payments within ten business days
Huh? Is this for real or not? I really can't tell. If it's not for real, well compliments to the sarcasm of the writer. Well put.
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bikey (profile), 1 Jan 2009 @ 6:29am

Re: You know mike what will happen
The same Burnham who can't distinguish between straight copyright (rewarding creators for their efforts) related or neighboring rights (rewarding broadcasters and record companies for their investments and performers for their renditions (in the old sense of the word) and moral rights (rewarding nothing, but protecting the reputation of the creators from misuse of their creation). Help us, o supernatural forces from the Burnhams of this world.
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Anonymous Coward, 1 Jan 2009 @ 8:12am

Re: Re: You know mike what will happen
I would very much like to see this same situation arise under US law, i.e., copyright expires but trademark lives on and is used by the holder as a copyright-substitute.

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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Anonymous Coward, 1 Jan 2009 @ 9:08am

Re: Re: Re: You know mike what will happen
My Dastar comment has now shown up. It was merely to note my view that the issues presented there are not the same presented here, albeit that they do relate somewhat.
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chris (profile), 1 Jan 2009 @ 9:10am

mickey mouse will never be public domain
disney will see the world destroyed before it loses control of mickey mouse.

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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ehrichweiss, 1 Jan 2009 @ 10:17am

Re: Re: Trademark?
Actually trademark could conceivably also cover the character as well hence the name tradeMARK, not tradename. Nike has the swooshtika, T-mobile apparently has the color magenta.
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zcat, 1 Jan 2009 @ 11:49am

trademark
Trademark absolutely covers icons, such as the Nike swoosh, Olympic Rings, the Firefox logo, Redhat's shadow man, Ubuntu's 'circle of friends' logo, etc. and have strength even in the absence of copyright (I threw in the last three because they're all freely copyable software, but if you modify them or redistribute them commercially you must remove the 'trademark' artwork, or at least get permission to continue using it). Mickey or Popeye can continue to live forever as a trademark, for example the Mickey Mouse shape (basically one large circle for a head, two slightly smaller ones for ears) is as much a trademark as the Olympic Rings. Also of course the word Disney, written as it is.
[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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Lawrence D'Oliveiro, 1 Jan 2009 @ 5:58pm

Re: trademark
The name "Disney" couldn't be a trademark either, because Walt Disney couldn't trademark his own name.
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zcat, 1 Jan 2009 @ 7:06pm

Perhaps Walt never got the memo?
Trademarks on the word "Disney"
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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awa, 1 Jan 2009 @ 8:32pm

TM v CR
Of course surnames may be trademarked. Millions of them are. It's just that they are not eligible for automatic trademark consideration as "arbitrary," "fanciful," or "suggestive" marks. All that names need is to acquire "secondary meaning," (meaning as a signifier of origin or source), beyond its mere status as a surname.

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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Anonymous Coward, 2 Jan 2009 @ 12:08am

Re: Please send royalty payments within ten business days
Last time anyone say Vito he was carrying a violin case and threatening to play his instrument.
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Vincent Clement, 2 Jan 2009 @ 6:37am

Re: Re: Re: Trademark?
T-mobile has a trademark on the color magenta as it relates to T-mobile. It does not prevent another non-celluar company from using magenta.

As to the Popeye trademark, I'm sure a little investigation at the USPTO will tell exactly what it covers.
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Vincent Clement, 2 Jan 2009 @ 6:40am

Re: Re: trademark
You can trademark a stylization of your name.
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Jason, 2 Jan 2009 @ 8:50am

Re: Re: Re: Trademark?
Yes, trademark would also cover any registered graphic aspects of Mickey and Popeye, just as the swoosh does for Nike. However the trademark could really only be enforced in certain ways.

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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zcat, 2 Jan 2009 @ 10:25am

Oops
I see all my links were temporary. You'll have to do your own search on Disney. I'd also note that names like Chanel, Levis, Versace, Gucci, and Jim Beam are all trademarks too.
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emily, 16 Oct 2009 @ 7:32am

I love you mickey mouse have you
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andy, 5 Nov 2009 @ 7:54am

the new Mickey
as a painter i have been waiting for the day when I can paint Mickey Mouse beating off with his tail while holding a gun in one gloved hand and a spliff in the other - my small role in the commercial deconstruction of the icon. That's my job as an artist - recontextualization. I do not expect any interference on the part of Disney... they've had their fun. It's the public's turn now
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