Animators and The Law: When Will Mickey Mouse Enter the Public Domain?

 

This is the fourth and last in a series of posts that take a look at just some of the many legal aspects of the animation industry.

It’s a question that seems to lead plenty of people to this blog but the post they land on is not entirely relevant. So here, for all those people is the post they’ve been looking for.

When Will Mickey Mouse Enter the Public Domain?

The most important piece of recent legislation concerning our hero is the Sonny Bono Copyright Term Extension Act, which basically extended the period of time for which creative works are covered by copyright. The interesting thing about this act is that it has a nickname. Care to guess what it is?

How about the “Mickey Mouse Protection Act”.

Yes indeedy, but first, it’s important that we define just how Mickey is covered and in order to do that, we must first define just exactly what “Mickey” is.

Mickey Mouse and similar characters inhabit the gray area where copyright and trademarks collide. A quick and dirty explanation is as follows:

  • Mickey Mouse’s films are covered by copyright
  • Mickey Mouse’s design/looks are covered by copyright
  • Mickey Mouse as a cartoon salesman is covered by trademarks.

Can’t tell the difference? Not to worry, that’s the purpose of this post.

Mickey Mouse is a creation, and as such his design is covered by copyright. His films are also subject to copyright in that they are expressions of the creation that is Mickey Mouse.

The distinction comes when Mickey Mouse is used as a tool to sell things. In that capacity, he is a trademark that is for the exclusive use of the Walt Disney company and anyone it licenses the character to.

Confused? Don’t worry, it will all be clear in a moment. 🙂

Why the distinction? Well, a trademark is sometimes not a creation, it can, in fact, have existed for hundreds of years. What a trademark does is extend to the owner the exclusive right to use the trademark for the business purpose that they applied for the trademark for. Sounds tricky doesn’t it?

It isn’t though. It basically means that someone setting themselves up as, say a record label called Apple is granted the privilege of being allowed to be the only record company called Apple. This is to avoid confusion in the mind of the consumer, which could result in “brand dilution”.

It does not prevent someone else from calling their company Apple and selling, say, computers. Why? Because selling records and selling computers are two completely separate market sectors that are unlikely to lead to confusion among consumers*.

Mickey Mouse is a trademark of the Walt Disney Company insofar that he acts as a salesman, mascot and calling card for the firm. Such uses are covered under trademark because they can be (and are) used by consumers to identify a particular company.

So now that we’ve established what copyright and trademarks are and the main difference between them, why are they important in the case of Mickey Mouse?

The reason is time.

You see, copyrights have term limits, trademarks do not (as long as they are actively enforced). Mickey Mouse can remain a trademark forever but his films will at some point enter into the public domain.

However, that remains to be seen:

Thanks to the lobbying muscle of Disney and its allies, U.S. copyright protection has protruded further and further into the future, from the 14 years of the first copyright law in 1790 to the 120 years of today — far beyond the lifetime of any artist.

That quote is taken from a superb article by Charles Kenny. No, not I, but a senior fellow at the Center for Global Development in Washington DC who I coincidentally happen to share the same name with. The full article is well worth a read to see how such actions by Disney and other entertainment giants are affecting the developing world in detrimental ways.

If Mickey Mouse’s films ever do enter (or are acknowledged as entering) the public domain, it will allow people to view them, edit them, remix them and so forth, it will not however, allow anyone to sell any merchandise branded as being “Mickey Mouse” merchandise. Why? Because unless they are officially sanctioned by the Walt Disney Company, they will be in breach of trademark law.

So, to answer the original question:

Mickey Mouse’s films will enter the public domain when their copyright terms expire. As of right now, that is 2020 for Steamboat Willie (barring further term extensions). As long as Disney maintains their trademark over the character, he will remain for their exclusive use indefinitely.

*As you may well be aware, when two market sectors do collide, a lawsuit results, as happened when Apple Computer launched iTunes, a breach of an agreement with Apple Corps.

Animators and the Law: Pay and Cost

This is the third in a series of posts that take a look at just some of the many legal aspects of the animation industry.

Pay and cost are two things in the animation (and entertainment) world that are intertwined with each other. Both have a heavy influence on a production so it is well worth having a look at the basics behind them.

Pay

I see and hear a fair amount of talk about pay. You are almost always entitled to receive remuneration for goods or services rendered to a client or customer however, it is not nearly as simple and as straight forward as you might think.

Over at the TAG Blog, pay crops up fairly often as a gripe amongst animators, mostly as a result of unpaid overtime. If you are salaried, then you are generally not entitled to overtime. If you are hourly, you are absolutely entitled to overtime, regardless of what the boss says.

A more serious issue revolves around the idea of unpaid interns. The concept of an internship is one that allows an inexperienced student to come on board and observe how things run in a studio. This is supposed to be an educationally rewarding experience that will hopefully allow the intern to acquire or learn a few skills that they can then use in their career.

The problem appears to be that some studios think that interns are essentially ‘free labour’. Numerous productions have used interns in the course of their run who were been paid either little or nothing, or at the very best, well below the industry norm.

While plenty of folks will espouse the many benefits of being an intern and the very real dose of experience they receive, relying on them as a source of labour results in some serious warping of the cost of productions.

The problem with free labour is that while the work is essentially gratis, the total cost of producing the show/film, is lower than where it ought to be. This has the effect of making productions appear more efficient than they actually are.

Economists love efficiency, however, in their minds, that means the efficiency is absolute. “Free labour” is not efficient from a cost standpoint because the economic aspect of the work is conducted but the remuneration is not. As a result, the production “withdraws” more from the national labour “man-hour bank” than it “pays back” in real dollars.

To clarify, a show that uses free labour and costs $100,000 may well have cost, say, $150,000. The missing $50,000 is essentially removed from the economy as it would otherwise be passed back to employees and spent. The $50,000 is not ‘saved’ by the studio because it never exists in real dollars having never been paid out in the first place.

If in any doubt, consult the “Should I work for free” flowchart. As humourous as it is, it does do a swell job of guiding you in the right direction.

Cost

Yet another aspect of working on a project is where you bill your time to. Hollywood is notorious for shuffling money and time around to suit the bottom line, and I’m sure many smaller studios do too.

Why is this a problem? Again, it masks the real cost of a production and leads to misleading perspectives. Let’s put it this way, as a private sector employee working on public sector projects, I am absolutely forbidden, no way no how, to bill time on a project to anything other than that project, regardless of how over budget it is. Why? Because the government wants (and needs) to know exactly how much a project costs, regardless of whether it is more expensive than it needs to be.

That’s not to say they won’t be upset if something overruns the estimate, but they will be very upset if we tried to sweep it under the rug as something else. And mark my words, they will crucify us if we ever do.

My point? Production costs should be fully accounted for. If they go over, at least the proof will be in the numbers and can provide evidence of how to properly estimate future costs for a similar production. The result will be more efficient productions that incur less hiccups.

Tomorrow’s post takes a look at Mickey Mouse and the effect he has had on copyright laws in the US.

 

 

Animators and the Law – Copyright

This is the second in a series of posts that take a look at just some of the many legal aspects of the animation industry.

While it is not the be all and end all of the profession, copyright is employed fairly heavily by industry players both large and small and it does affect an animator’s work in some very real ways.

Copyright is defined as:

The exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. Via: Google

The very first thing to understand about copyright is what is covered and what is not. Furthermore, it is important to note that copyright is not a ‘right’, it is a legal privilege extended to creators by the US Constitution.

US Federal copyright law: The Facts

  • Covers anything considered “original works of authorship” (authorship is defined as being the written word, lyrics, melodies, visual works and, for some reason, software)
  • Granted the moment something is put in “fixated form”, no registration with the Copyright Office is necessary.
  • Terms last for 70 years beyond the death of the author or if done under “corporate authorship” terms are 95 years after publication or 120 years after creation (whichever is shorter).
  • Places responsibility on the copyright holder to actively enforce their copyright.
  • Applicable in the US only!

As an animator, how does copyright affect you?

First of all, it depends on the work created. Is it your own idea done on your own time*? If so, then copyright will rest with you. If it is work done “for hire” then it does not.

“For hire” is an exception to the rule that the creator of the work is considered the author or owner of the copyright. It is also called “corporate authorship”. A good example of this is anything you create for a studio. While you created the actual content, you were paid by way of compensation for it and thus the studio retains the copyright for themselves.

As mentioned in the ideas post, copyright only covers actual creations only. So get those ideas down on paper!

Copyright may also affect you when it comes to your personal works. While you are free to use copyrighted material for influence, direction and inspiration, you cannot create works that could be considered as infringing on the original piece. An example would be you creating a CGI panda who is learning the ways of kung fu and calling him Bo; Jeffrey Katzenburg may want to have a word with you about that.

Do My Works Have To Be Covered By Copyright?

No. As important as copyright is, it is also worthwhile knowing that submitting works under copyright is not mandatory. While it is an automatically granted legal privilege, you are quite free (at least in the US) to publish your work under a multitude of alternative methods if you so wish. Alternatives such as the public domain and the various Creative Commons licenses.

Nina Paley is well known in the animation community for the copyright issues that she had to deal with in order to get her self-animated feature film Sita Sings the Blues released. The gist of it is that she wanted to use a particular jazz song from the 1920s but whose copyright holder was demanding $250,000 in exchange for the necessary licenses.

As a result, she has become an advocate for the ideals of copyleft and permitting people to copy, modify and redistribute works without restriction. Sita Sings the Blues has become immensely popular since it was made available online and its popularity has brought Nina worldwide fame, accolades and work.

The post you are reading right now is published under a Creative Commons license with the only restrictions being that you provide attribution and publish any alterations to the post under the same CC license.

If you would like to learn more about copyright, please consult the following websites:

US Copyright Office

Wikipedia article on copyright

Creative Commons

Copyleft

*your own time is defined as being that outside of the office/studio. Creations made on company time can (and have) been considered the property of the company not the individual, so create your personal stuff at home!

Tomorrow, we’ll take a look at pay and cost as the relate to animation production.

Animators and the Law: Ideas

This is the first in a series of posts that take a look at just some of the many legal aspects of the animation industry.

What is an idea?

An idea is at the most basic level, a concept conceived by an individual or group of individuals. It can be a story, a character, a plot, a setting, anything that can be imagined can be considered an idea.

Ideas in the legal sense only really cover original ideas (for the most part). In other words, if you wanted to write a film based on the Titanic told from the story of two people called Jack and Rose who fall in love, well, that’s already been done, and James Cameron may have something to say about it. That does not make your idea illegal, but the execution of it is at a much higher risk of infringing.

How does the law safeguard ideas?

The short story is, it doesn’t, at least not under the vast majority of circumstances. Because an idea is considered a concept that is not fixed, it is therefore open to individual interpretation. As a result, your idea for a flying superhero squirrel will be different from my idea for a flying superhero squirrel.

This is where copyright law comes into play (and will be discussed in tomorrow’s post). If the idea is in a fixed form, i.e. a sketch on paper or an image on a computer, then it is covered by copyright. If it’s just a thought in your head, it is not covered, and can be taken and developed by anyone else.

This also includes verbal and visual communication, so if you describe an idea to me without having created anything, I am free to develop it myself using my own imagination.

When it comes to your idea, it is best to get it in a fixed form and then develop it. The law is quite explicit on this and a number of lawsuits have been thrown out because the plaintiff did not sufficiently prove that they had created the idea prior to the defendant.

When it comes to pitching to a studio, it is wise to have your idea fully developed (and registered with the copyright office if you are truly paranoid). There have been countless lawsuits over the years pertaining to stolen ideas. Two that come to mind include the original ‘Cars’ lawsuit and the ‘Kung Fu Panda’ lawsuit.

The latter is still developing but the former was tossed out when the court determined that Pixar did not infringe on the plaintiff’s concept, even though the two shared many similarities.

It is advisable to develop ideas into concepts as much as possible before presenting them. This counts for two-sheets and concept pitches too.

It is also advisable (and recommended) not to send ideas to studios unsolicited. Such cases are quite likely to create legal headaches for studios in that they may well be developing the idea you just sent them. As a result, many studios won’t accept unsolicited ideas anyway, so what’s the point?

So, to sum up today’s lesson:

  • you cannot protect ideas, only executions of the idea
  • develop your idea before showing it to anyone

In tomorrow’s post we will have a look at copyright in more detail and how it affects the animation business.

PS. Happy 4th of July! “What better way to celebrate the founding of your country than by blowing up a small part of it!”