Winnie the Pooh and Bambi Enter Public Domain

But only the original books, not the Disney adaptations.

KSL (“‘Winnie The Pooh’ and more: 22 notable creative pieces head to public domain in 2022“):

Winnie and all his friends, from Tigger to Piglet, are moving to a new home.

New Year’s Day marks the first day that thousands of classic pieces of art lose copyright or intellectual property rights as they enter a collective space known as the public domain. In the U.S., literature, music, movies and other creative pieces have 95 years before they end up in this collection of past art.

The 2022 list is led by the A.A. Milne children’s classic “Winnie the Pooh” and Ernest Hemingway’s first novel, “The Sun Also Rises.” Hemingway’s first collection of short stories, “In Our Time,” entered the public domain last year.

Another children’s classic character, Felix Salten’s “Bambi,” as well as works by Langston Hughes, Dorothy Parker and William Faulkner are also entering the public domain.

But there are some film gems entering this year, including Buster Keaton’s “Battling Butler” and “The Son of the Sheik,” the final film of early film star Rudolph Valentino before his sudden death at the age of 31.

All sound recordings published before 1923 are also heading to the public domain. That’s the result of interesting public domain rules, according to Jennifer Jenkins, the director of Duke University’s Center for the Study of the Public Domain.

She notes that the country’s copyright law didn’t include sound recordings until 1972, meaning sound recordings could have been included in the 95-year window starting in 1972. But Congress, in 2018, passed the “Music Modernization Act” that shortened the window for pre-1972 recordings.

It’s estimated that includes over 400,000 recordings entering the domain in 2022, according to the Association For Recorded Sound Collections. That includes renditions of the World War I anthem “Over There,” recorded in 1917 and 1918.

Jenkins says there’s a good reason for the public domain. First, it allows community theaters and youth orchestras to learn from and present these pieces without dealing with costly licensing fees. Thousands of books can be made available through print or online, making them more accessible.

“This helps enable access to cultural materials that might otherwise be lost to history. 1926 was a long time ago. The vast majority of works from 1926 are out of circulation,” Jenkins wrote, in a public domain report. “When they enter the public domain in 2022, anyone can rescue them from obscurity and make them available, where we can all discover, enjoy and breathe new life into them.”

This annual collection also fosters new art to emerge because current authors, musicians, playwrights, directors and artists can build off the work in the public domain. One of the most recent examples of this is the remake of “West Side Story,” which recently hit theatres. The 1950s musical was influenced by William Shakespeare’s “Romeo and Juliet.”

“Who knows what the works entering the public domain in 2022 might inspire?” Jenkins adds. “As with Shakespeare, the ability to freely reimagine these works may spur a range of creativity, from the serious to the whimsical, and in doing so allow the original artists’ legacies to endure.”

On her Duke Law page, Jenkins adds,

The public domain is also a wellspring for creativity. The whole point of copyright is to promote creativity, and the public domain plays a central role in doing so. Copyright law gives authors important rights that encourage creativity and distribution—this is a very good thing. But it also ensures that those rights last for a “limited time,” so that when they expire, works go into the public domain, where future authors can legally build on the past—reimagining the books, making them into films, adapting the songs and movies.

[…]

Just as Shakespeare’s works have given us everything from 10 Things I Hate About You and Kiss Me Kate (from The Taming of the Shrew) to West Side Story (from Romeo and Juliet), who knows what the works entering the public domain in 2022 might inspire? As with Shakespeare, the ability to freely reimagine these works may spur a range of creativity, from the serious to the whimsical, and in doing so allow the original artists’ legacies to endure.

She also notes, as our late co-blogger Doug Mataconis repeatedly did, these works “were supposed to go into the public domain in 2002, after being copyrighted for 75 years. But before this could happen, Congress hit a 20-year pause button and extended their copyright term to 95 years. Now the wait is over.” Alas, she warns,

Despite overwhelming evidence that term extension does more harm than good, countries are still extending their copyrights. The public domain remains under threat. This makes an understanding of its vital contributions—to creativity, access, education, history—all the more important.

The verdict is in: adding an extra 20 years to the US copyright term was a “big mistake.” This is not a quote from someone who is equivocal about copyright; it is a quote from the former head of our Copyright Office. Indeed, there is a consensus among policymakers, economists, and academics that lengthy copyright extensions impose costs that far outweigh their benefits. Why? The benefits are minuscule—economists (including five Nobel laureates) have shown that term extension does not spur additional creativity. At the same time, it causes enormous harm, locking away millions of older works that are no longer generating any revenue for the copyright holders. Films are literally disintegrating because preservationists can’t digitize them. The works of historians and journalists are incomplete. Artists find their cultural heritage off limits. (See studies like the Hargreaves Review commissioned by the UK government, empirical comparisons of the availability of copyrighted works and public domain works and economic studies of the effects of copyright (other articles are here and here).)

Yet, incredibly, countries are lengthening their copyright terms—not as a result of reasoned debate, but to comply with trade deals that require harmonization of copyright terms. With harmonization, there is a catch: countries are always made to harmonize with the longer term, never the shorter term, even if the shorter term is a better choice for both economic and policy reasons. At the moment, because of such trade agreements, Canada and New Zealand have both agreed to extend their copyright terms from an already long life-plus-50 to a longer life-plus-70 years, even though the Canadian term extension would “cost Canadian education millions of dollars and would delay works entering the public domain for an entire generation” and the New Zealand extension “would cost around $55m [NZ dollars] annually” without “any compelling evidence that it would provide a public benefit.” 16  This is irrational. It would be more efficient to simply levy a new tax on the public and give the proceeds to the small percentage of copyright holders whose works are still making money after a life-plus-50 term. The term extensions not only transfer wealth to a tiny subset of rights owners, but also threaten to lock away the remaining works from future creators and the public.

Works from 1926 are finally entering the public domain, after a 95-year copyright term. However, under the laws that were in effect until 1978, thousands of works from 1965 would be entering the public domain this year. In fact, since copyright used to come in renewable terms of 28 years, and 85% of authors did not renew, 85% of the works from 1993 might be entering the public domain! Imagine what the great libraries of the world—or just internet hobbyists—could do: digitizing those holdings, making them available for education and research, for pleasure and for creative reuse. Under current copyright terms we will have to wait until 2061.

Longtime readers will recall that this was Doug’s position as well. While I think life-plus-50 is likely enough, I would also be amenable to a provision that made the protection a moving target if the work was being built upon by the creator or his heirs. So, since Pooh et al received a sequel, The House at Pooh Corner, two years later, it seems reasonable to extend the copyright to the collection accordingly. Similarly, since J.R.R. Tolkien’s son, Christopher, continues to produce new works based on his father’s creations, it seems reasonable to me for the family to continue to retain copyright.

But, yes, it’s bizarre to keep out of print works that are being neglected by the rightsholders locked up for so long. Especially since there’s actual harm being done. Jenkins again:

Unfortunately, part of this iceberg has already melted. The fact that works from 1926 are legally available does not mean they are actually available. After 95 years, many of these works are already lost or literally disintegrating (as with old films and recordings 13 ), evidence of what long copyright terms do to the conservation of cultural artifacts. One of the films from 1926 we considered featuring was The Great Gatsby, an adaptation of the 1925 novel. But that film has reportedly been lost to history. 14  For the material that has survived, however, the long-awaited entry into the public domain is still something to celebrate.

Another part of the iceberg includes works from 1926 and later that may already be in the public domain because the copyright owners did not comply with the “formalities” that used to be necessary for copyright protection. 15  Back then, your work went into the public domain if you did not include a copyright notice—e.g. “Copyright 1926 Ernest Hemingway”—when publishing it, or if you did not renew the copyright after 28 years. Current copyright law no longer has these requirements. But, even though those works might technically be in the public domain, as a practical matter the public often has to assume they’re still copyrighted (or risk a lawsuit) because the relevant copyright information is difficult to find—older records can be fragmentary, confused, or lost. That’s why Public Domain Day is so significant. On January 1, 2022, the public will know that works published in 1926 are free for use without tedious or inconclusive research.

Alas, in a separate essay, she notes that it gets complicated in cases where rightsholders have licensed or otherwise allowed others to make creative use of the materials. In the case of both Pooh and Bambi, of course, Disney comes into play.

Disney, of course, still has copyrights in later books and movies. But the 1926 book itself enters the public domain. This means that anyone can post the book online, or print cheap educational editions. You can start your creative engines too—the plot, dialogue, and settings in that book are open for future creators. So too are the characters, including the appearance and traits of the original Winnie-the-Pooh, Piglet, Eeyore, Rabbit, Kanga, Roo, Owl, and Christopher Robin. (Not Tigger, though: Tigger was not introduced until 1928 in The House at Pooh Corner and that book does not enter the public domain until 2024.) Anyone can adapt the 1926 book into a play, musical, or film, or write a prequel or sequel. Want to write a story about how Pooh and friends stay sane during a pandemic? (Eat more honey!) Or a story in which Pooh and friends tackle online bullying? Now you can, without having to seek a license from Disney. 2  This is how the public domain supports creativity.

That said, some rightsholders have tried to interfere with legal reuses of public domain material. The owners of the Sherlock Holmes, Tarzan, and Zorro properties did this after the original works began to enter the public domain. Will Disney follow suit, or will it enforce only the rights it still owns? Many see this as a test drive for what it will do when Steamboat Willie enters the public domain in 2024. A lot has changed since 1926—not only has Winnie the Pooh become a multi-billion dollar franchise, but copyright and trademark rights have expanded. We live in a world of mega-brands, of franchised characters and comic book universes. But what happens when mega-brands and the public domain collide?

After a lengthy analysis of the case law, she observes,

The copyright over the original book has expired. But Disney still retains trademark rights to use the words “Winnie the Pooh” on all sorts of products including books, movies, TV shows, video games, and a wide range of merchandise. And until recently they also had Federal trademark registrations over images of the Pooh characters. If you make your Winnie the Pooh sequel, can Disney use trademark law to interfere?

Let’s begin with Disney’s trademark over the words “Winnie the Pooh.” As mentioned earlier, trademark law is all about preventing consumer confusion, so Disney might claim that consumers will think your new book or movie is a Disney-sponsored product. On the one hand, there are non-Disney versions of Snow White and Cinderella that people do not think emanate from Disney. Is “Winnie the Pooh” so closely associated with Disney that people would assume Disney is behind new productions? Either way, one way to dispel any claim of confusion is to add a disclaimer making it clear that your creation is not produced or sponsored by Disney. One court noted: “When a public domain work is copied, along with its title, there is little likelihood of confusion when even the most minimal steps are taken to distinguish the publisher of the original from that of the copy. The public is receiving just what it believes it is receiving—the work with which the title has become associated. The public is not only unharmed, it is unconfused.” 8 

Even without the disclaimer, putting “Winnie the Pooh” on toys or onesies is different from using “Winnie the Pooh” to describe the content of a new creative work. With the latter, First Amendment protection for freedom of expression comes into play and there are trademark defenses that allow you to use “Winnie the Pooh” in a title. A case called Rogers v. Grimaldi explains specifically that people are allowed to use trademarks in the title of an expressive work as long as the term has some artistic relevance to the new work and does not explicitly mislead as to the source of the work. (This is why when Mattel sues people for using “Barbie” in the titles of songs and photographs, they lose in court.) The policy underlying this rule is that trademark law should only apply to artistic works when the public interest in avoiding consumer confusion outweighs the public interest in free expression. Thus, the disclaimer should be unnecessary. But if you wish to put the matter beyond doubt, a disclaimer would do so.

What about possible claims by Disney that your use of the images of the Pooh characters causes consumer confusion? Here it is important to distinguish between using the Pooh images as a brand identifier on the kind of merchandise Disney’s trademarks cover and using the images of Pooh in a reprinted book or a new movie or cartoon. In theory, even on a shirt or a lunchbox, if that image of a bear or donkey is merely decorative, as opposed to being a brand-indicator, then there is no trademark problem. But that inquiry is fact-specific. Easier simply to avoid something that could be seen as competing and branded merchandise. Using those original Shepard drawings in a comic book or animation is different—this is not the kind of use that misleads as to the source of a product. It is something that copyright expiration plainly allows. 9 

The real question, it seems to me, is whether there’s enough money to be made in selling Pooh merchandise that fits within these limits to offset the cost and aggravation of fighting Disney. I suspect the answer is No. Jenkins “hopes” they won’t fight but, of course, they will.

Still, she makes the obvious point:

In fact, Disney’s own beloved works show just how valuable the public domain is. Many of its animated classics were remakes of public domain books and folk tales. Works from Alexandre Dumas, Charles Dickens, Gabrielle-Suzanne de Villeneuve, Jules Verne, Lewis Carroll, The Brothers Grimm, Victor Hugo, Charles Perrault, Hans Christian Anderson, Carlo Collodi, Mark Twain, English folklore, and The Book of One Thousand and One Nights fed Disney’s The Three MuskateersA Christmas CarolBeauty and the BeastAround the World in 80 DaysAlice in WonderlandSnow WhiteThe Hunchback of Notre DameSleeping Beauty and CinderellaThe Little MermaidPinocchioHuck FinnRobin Hood, and Aladdin, to name a few. When it got into a dispute with the rightsholders of Bambi, Disney even filed an unsuccessful lawsuit claiming that the book had gone into the public domain much earlier. Let us hope that Disney remembers its own debt to the public domain when Pooh, and later the Steamboat Willie version of Mickey Mouse, enter the realm from which it has drawn so heavily!

Good luck with that.

Mental FlossJake Rossen comments on the issue as well, drolly concluding, “If you’d like to write a story teaming up [Sherlock] Holmes with Winnie the Pooh to help solve the murder of Bambi’s mother, now you can.”

Here’s a list of the most notable works entering public domain, courtesy KSL:

Literature

Music and spoken word recordings and compositions

Movies

FILED UNDER: Law and the Courts, Popular Culture
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    Cynically, when the Disney and similar copyrights are due to end, Congress will extend them again.

    A bit more broadly, intellectual property and how it is used seems to be disjointed at the moment. Most TV and movies, except a large swath of pre-code Hollywood, seems only to be available on the internet behind a paywall. There are exceptions, a few years ago I found all the old episodes of the Brit TV series The Prisoner on YouTube and then they disappeared, as did Patrick McGoohan’s early series Danger Man, nee Secret Agent Man in the US.

    But at the same time music publishers are dumping their back catalog on to YouTube, from Grammy winners, to obscure performers that self produced records and sold them off the side of the stage. Most of that back catalog is unproductive as the recording are long out of print, so the publishes can make a few pennies from the advertising that precedes and follows the song. But old TV shows and movies aren’t anymore productive. ¯\_(ツ)_/¯

    ReplyReply
    2
  2. Michael Reynolds says:

    I own (or co-won with my wife) many, many copyrights. I think 95 years is ridiculous. I would be happy with life of creator plus, say, 25 years for the kids to exploit our (possibly suspicious) deaths.

    From the perspective of a content creator, copyright is about keeping my creations away from being ripped off and ‘re-imagined’ by corporations. We’ve always taken an easy-going approach to fanfic and fanart, the little guys aren’t the issue. Disney, Warner, Sony, Netflix etc… are what this is about.

    ReplyReply
    7
  3. Stormy Dragon says:

    The big date is January 1, 2024

    Currently that’s the date that Steamboat Willie (and by extension Mickey Mouse) becomes public domain. Disney is obviously going to do everything it can to put that off further and it remains to be seen if they’ll be successful again or not.

    ReplyReply
    2
  4. Michael Cain says:

    @Michael Reynolds:

    Back in my R&D days, I always found it strange that the things I patented had a relatively short life — all have now aged out. But the papers/articles I wrote about applications using those things was protected essentially forever. Ditto code that couldn’t be patented. I have one program that I use every day that next time I modify it I’ll have to change the copyright in the source file from “Copyright Michael Cain, 1986-2021” to include the new year.

    ReplyReply
    2
  5. Stormy Dragon says:

    Another interesting facet of this is that while the original A. A. Miline Pooh is now public domain, the Disney Pooh isn’t public domain until 2061, which creates some interesting legal questions.

    e.g. if you draw the E. H. Shepard version of the character in a red t-shirt, is that violating copyright? How different does your Pooh voice need to be from the Sterling Holloway version to be public Domain?

    ReplyReply
    1
  6. Jay L Gischer says:

    I agree completely. And as a note, Christopher Tolkien passed away 16 Jan, 2020. I didn’t hear about it until maybe a year later.

    ReplyReply
    1
  7. Michael Reynolds says:

    I believe we’ll be free to create a whole new version of Pooh. Halloween Rebooted: Pooh in a hockey mask wielding a bloody machete. It 3: It’s Pooh’s Sewer Now. Star Wars 19: The Wrath of Pooh. And of course on Porn Hub: Shaved Pooh.

    ReplyReply
    4
  8. Just nutha ignint cracker says:

    @Sleeping Dog: “There are exceptions, a few years ago I found all the old episodes of the Brit TV series The Prisoner on YouTube and then they disappeared, as did Patrick McGoohan’s early series Danger Man, nee Secret Agent Man in the US.”

    Can’t speak for “The Prisoner” but “Danger Man” is currently available on Tubi free streaming service. (And I suspect “The Prisoner” is, too; I just haven’t looked for it. There’s only so much old television that someone who doesn’t suffer from FOMO can watch.)

    ReplyReply
    1
  9. Kylopod says:

    Fun fact: The 1963 movie Charade entered the public domain because of a goof in the copyright notice.

    There are other famous movies from around that time that are in the public domain, such as Carnival of Souls and Night of the Living Dead. But those are B-movies. Charade was a blockbuster with big stars.

    ReplyReply
    1
  10. Mu Yixiao says:

    @Michael Reynolds:

    I own (or co-won with my wife) many, many copyrights. I think 95 years is ridiculous. I would be happy with life of creator plus, say, 25 years for the kids to exploit our (possibly suspicious) deaths.

    That’s rent-seeking which goes against the purpose of copyright as explained in the Constitution.

    I quote Article I, Section 8, Clause 8:

    To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

    [emphasis mine]

    Copyright–like patents–is a contract between “the people” and creators. A contract requires that there be a quantifiable benefit for both parties. The original contract was: “The People will assure that The Creator is protected for a reasonable length of time, so that they can benefit from their works with out competition. In exchange, their works become “the property of The People” after said reasonable time so that it may encourage more artists and creators and enrich our culture as a whole.”

    The current “contract” is “I and all my kids and grandkids get all the money, and fuck you.”

    From the perspective of a content creator, copyright is about keeping my creations away from being ripped off and ‘re-imagined’ by corporations. We’ve always taken an easy-going approach to fanfic and fanart, the little guys aren’t the issue. Disney, Warner, Sony, Netflix etc… are what this is about.

    And you could do that with a copyright length of 30 years and a trademark. As long as you (your estate or some other entity) is actively maintaining the trademark on the the various aspects of an IP, it’s protected.

    Aside from “giving your kids, grand kids, and great grand kids money”, there is zero justification for the current length of copyright.

    Current copyright also changes history.

    WKRP is the best example, but there are many works that can no longer be viewed the way they were created (or at all) because of copyright and licensing issues.

    You’re looking at this from the perspective of a writer[1]. Look at it from a different perspective:

    I have photos (physical photographs) that my father took while he was a soldier in WWII. Under current copyright law[2] those photos are protected for “life+70”. My father died in 2008. That means nobody can use the photos without permission until 2078.

    Those photographs are, by law, forbidden to historians, archivists, researchers, documentarians, teachers, students, and everyone else for one and a third centuries[3].

    1926 is before my mother was born, and before my father was in kindergarten. For most people, 1926 is 2 or 3 generations ago.

    ==============
    [1] I’ve published a couple plays under a CC-BY license, and I contribute photos to “free use” websites.

    [2] It’s compicated.

    [3] I have previously posted the images online in private website under a CC-0 license, and plan on scanning all the images at (current) high-res and finding somewhere that can archive–and offer–them on a more permanent basis.

    ReplyReply
    1
  11. Mu Yixiao says:

    Enter the”Copyleft” movement.

    Creative Commons has stepped up and codified a rage of “copyleft” licenses that work on the concept of “but not” rather than a “but only” approach. CC is built on the notion of a strong copyright law (but not a long one), and acknowledges that the creator holds certain rights–including “moral rights”.

    Creative Commons licenses (which, with the exception of 0, can be applied in almost any combination) include:

    0: A half-step up from Public Domain. Anyone can do (almost) anything with the work, but the creator still retains final say. This allows the creator to maintain “moral rights”, which would (for example) allow them to prevent Trump from using their works to promote his political campaign.

    BY: If you use the work in any way, you have to credit the original creator.

    NC: You can’t use the work in a commercial endeavor. You can, however, use it in your school, church, or community group.

    ND: “Not Derivative”–you can use the work exactly as it is, but you can’t change it or create something different based on it (e.g., you can’t write a movie based on the book).

    SA: “Share Alike”. This is the fun one. It says “If you make anything based on my work, it must have the same CC license as my original”.

    This isn’t anything new. Radiohead released more than one album for free, and the Greatful Dead not only allowed “bootlegs” of their concerts, they actually provided an official “out” from the soundboard for people who had earned it. On top of that, the Greatful Dead commissioned cassette cover art for the best bootlegs. They let you have the music for free, and made money off the little piece of paper you put in your cassette case.

    ReplyReply
    1
  12. Gustopher says:

    @Mu Yixiao:

    And you could do that with a copyright length of 30 years and a trademark. As long as you (your estate or some other entity) is actively maintaining the trademark on the the various aspects of an IP, it’s protected.

    […]

    I have photos (physical photographs) that my father took while he was a soldier in WWII. Under current copyright law[2] those photos are protected for “life+70”. My father died in 2008. That means nobody can use the photos without permission until 2078.

    Those photographs are, by law, forbidden to historians, archivists, researchers, documentarians, teachers, students, and everyone else for one and a third centuries[3].

    Let’s take a different scenario — the childhood photography of Joe Biden. In this hypothetical scenario, Joe Biden spent his 20s photographing sideshow freaks in erotic poses with then-President FDR, all very tasteful. He has never published them. (No, I’m not doing the math to figure out how old Biden is in this scenario, just roll with it)

    In the 30-year scenario, photographs that Joe Biden never wanted to publish are now public domain. They’re found on his son’s laptop, and quickly become the best selling art book of the last 50 years, with a copy on every coffee table in America. Not only can Biden not control his art (which turns out to be touching and beautiful), but someone else profits massively from it. I think most people would agree that this is not the ideal outcome.

    (The hypothetical photographs seem absurd, but it’s actually pretty close to the story of Vivian Maier — whose photographs were discovered after her death, but let’s assume she lived much longer)

    In general, for published works, I would trigger copyright ending 10 years after it goes out of print, with compulsory licensing after 30 years from publication — allowing someone actively making art available to continue doing so, and art to enter the public creative sphere while still reimbursing the original rights holders.

    In the case of Micheal and his lovely wife, this would leave them in complete control of the Animorphs books, as they have been continuously published, but in a few years they would have no control over adaptations just a cut of the revenue.

    For unpublished works, I have no idea. Obviously, we all want to see those Biden photographs, but the dude should get to control his art and keep it to himself if he wants to.

    ReplyReply
    1
  13. Michael Reynolds says:

    @Mu Yixiao:

    You’re looking at this from the perspective of a writer[1]. Look at it from a different perspective

    I’m looking at this from the perspective that if I don’t get paid, I don’t work. The benefit to ‘the people’ is the book. The benefit to me is the money they pay. There’s your symmetrical contract.

    But there’s more to it than that. Want to know what Tweet I get most frequently? Some variation on, ‘please don’t let Hollywood fuck up something we love.’ I’ve passed up good money to try and do that for readers. We walked away from a movie deal that would have made us complicit in a producer destroying what fans cared about. I regularly stiff-arm offers for adaptation rights out of loyalty to my readers.

    See, the contract that matters to me is the one between me and the people who buy my books. They invested in my little worlds and unlike many creators, I feel an obligation, not to the world at large, not to a Hollywood studio, but to kids who spent their lunch money buying me a house.

    Given the endless re-booting, re-imagining, re-hashing and outright murder of intellectual property that Hollywood does, do you really think they need freer access to my books? I think we’d have a much more creative industry if Hollywood tried harder to be original. You know, to have their own ideas. Take away the IP of Stan Lee, Bob Kane and JK Rowling and Hollywood would be broke.

    The first Spiderman comic came out in 1963. The Sam Raimi Spiderman came out 39 years later. You don’t think Stan Lee should have gotten a check for that?

    ReplyReply
    1
  14. Michael Cain says:

    @Michael Reynolds:

    Solely for the sake of argument, people who create something like clothespins or staplers or mRNA vaccines have to make do with 20 years. How rich would someone like Edison have been if he’d gotten life plus 25 years? Or the person who reduced MOSFETs to practice?

    ReplyReply
    2
  15. Michael Reynolds says:

    @Michael Cain:
    I dislike the term intellectual property though I have no choice but to use it. Part of my objection is that art and technology are not the same thing. There’s no reason I can think of for patents to endure as long in a protected state as books or movies. That does cause issues for society at large, whereas making a movie out of one of my books has no great societal benefit beyond corporate profits and maybe an extra gig for @EddieInCa. Society will do just fine without me giving up all control of my work.

    BTW, I should have been clearer on book sales before. I don’t sell books. I lease rights to a publisher to sell my books. A person who buys my book is buying it from the publisher, so the oft-made argument that the author essentially sells his rights along with the book is wrong.

    ReplyReply
  16. Matt Bernius says:

    @Michael Reynolds:

    The first Spiderman comic came out in 1963. The Sam Raimi Spiderman came out 39 years later. You don’t think Stan Lee should have gotten a check for that?

    To your point, Stan largely got that payment because of his relationship with Marvel. Because all of his IP was more or less work for hire (while he was EiC), he didn’t own the IP he created. And a lot of his collaborators didn’t get anything for thier roles in creating that IP.

    Likewise Ed Brubaker who wrote the comics that essentially created The Winter Soldier and his redemption arc makes more from his residuals for a brief cameo in “The Winter Soldier” than he made for the use of the character itself.

    ReplyReply
  17. Matt Bernius says:

    Also let’s not discuss Bill Kane and IP as the most he contributed to Batman was the name and the idea of doing off the Shadow. The most recognizable aspects of the character were developed for Kane by Bill Finger working as essentially a subcontractor.

    https://www.cbr.com/what-batman-mightve-looked-like-without-bill-finger/

    ReplyReply
  18. Just nutha ignint cracker says:

    @Matt Bernius: Hulu has a documentary about the relationship between Bob Kane and Bill Finger, but I don’t remember the title.

    ReplyReply
  19. Michael Cain says:

    Michael Reynolds:

    Most inventors sell/lease rights also. It’s just that after 20 years, that’s taken away from them.

    Here’s where I run into the philosophical problem. You say, “…whereas making a movie out of one of my books has no great societal benefit beyond corporate profits and maybe an extra gig for @EddieInCa.” So because there’s no great societal benefit, society should give you an individual benefit essentially forever. Certainly the SCOTUS has said that Congress can extend the period in finite intervals as often as they want. But the person whose creation has some sort of bigger societal benefit, their individual benefit gets cut off after 20 years.

    I used to know a guy who spent years developing a really nifty electronic widget and went through all the hassles to get a patent (note that today, it will run $5K or more to go through the patent process). For 20 years he refused to license it for weapons applications and weapons makers had to make do with a second-best solution. At 20 years and a day, a whole list of weapons makers changed their design, stamped “Patent No. xxxxxxx” somewhere on their product, and the guy got nothing.

    If J.K.Rowling (and descendants) is entitled to have control over how the Potter universe is used for the next 100 years, the guy I knew ought to be able to keep his widget out of weapons systems for a comparable length of time.

    ReplyReply
    2
  20. Gustopher says:

    @Michael Reynolds:

    whereas making a movie out of one of my books has no great societal benefit

    Well, I wasn’t going to say it… ok, seriously, doesn’t that depend on the movie?

    Music has traditionally played fast and loose with plagiarism, inspiration and theft, creating new and interesting works that are variations on previous bits of music. Lyrics and melodies bounced around with wild abandon. If you look at the history of a song like “Froggie Went A’Courtin’,” or “Mole In The Ground,” you’ll see verses from different songs, wandering in and out and even between those two songs, with different performers synthesizing a different collection of a vast set of elements.

    These days, it leads to lawsuits as often as not. (I am impressed with Elvis Costello’s reaction to Olivia Rodriguez’s “Brutal” which is basically his “Pump It Up”, where he just pointed out the parts of that song he stole from Bob Dylan)

    And we are likely missing a premium tv series about Galt’s Gulch falling into ruin without the little people to do work, because the estate of Ayn Rand eagerly protecting that copyright.

    Matisse and Picasso borrowed so many elements from each other that much of their work can be seen as a dialog going back and forth. (The show of their work together back in the 90s or early 00s was amazing, by the way).

    But, back to Froggie Went A’Courtin’…

    Now, I’m not saying that shape changing teenagers fighting a secret war against hidden enemies and dealing with the consequences have as much to offer us as a frog marrying a mouse (and possibly killing the rest of the suitors, and maybe having furry tadpoles at the end, or just getting eaten by a snake at the end of the reception), but it’s plausible that if your work was more available for use and adaptation, Froggie might be a shapeshifting teenager attempting to return to a normal life after fighting against the aliens, and marrying a rodent.

    Because we all know that once you bend a story into a frog marrying a mouse, you’ve tapped into something primal in Americana that goes back to before the founding of the country, perhaps to England’s wars with Scotland.

    Ideas change when other people get to play with them. Sometimes for the better (and by better, I mean hot Froggie on Mousie action).

    ReplyReply
  21. wr says:

    @Just nutha ignint cracker: “Batman and Bill.”

    ReplyReply
    1
  22. Mu Yixiao says:

    @Michael Reynolds:

    I’m looking at this from the perspective that if I don’t get paid, I don’t work. The benefit to ‘the people’ is the book. The benefit to me is the money they pay. There’s your symmetrical contract.

    Except that’s not how the contract is written. You surely understand that details in a contract matter. The contract is to protect you for a limited time (so you can make money), and after that limited time, the work reverts to the public domain so others can create works based on it without fear.

    If copyright lawsuits were pushed as heavily in 1974 as they are today, Dungeons & Dragons would never have made it to print, and the RPG industry–including a lot of video games–wouldn’t exist as we know it.

    ReplyReply
    1
  23. Michael Reynolds says:

    @Matt Bernius:
    There was a lot of that fuckery back in the day, back before writers had agents – and lawyers to watch the agents. It’s why our first advice on the business side of writing is don’t trust your publisher, and don’t even trust your agent alone, have an experienced IP lawyer. Agents have multiple clients, and the biggest ‘client’ is always going to be the publisher or studio with which they have to get along. Lawyers just work for you.

    For the last 20 years I’ve dispensed with an agent (15%) and instead had my lawyer (10%) handle everything, and unlike compliant, lazy, and often ignorant agents taking whatever the publisher offered, my guy absolutely delighted in finding new ways to screw publishers for my benefit. Sadly the guy is retiring.

    ReplyReply
    1
  24. Michael Reynolds says:

    @Mu Yixiao:
    I am not at all familiar with the D&D rights situation, but assuming someone owned the copyright, that person would almost certainly have a price. The barrier to developing D&D would then have come down to whether or not someone was willing to pay the creator’s price. Like anything else in life, if you want something you have to pay for it.

    Except that’s not how the contract is written.

    Here’s how it’s written: I write something. A publisher offers me $ and I allow the publisher to turn my manuscript into books – I lease them publishing rights. The publisher sells the books to readers. And then the publisher pays me a piece of their sales. As long as the publisher keeps that book in print, it’s effectively theirs. If they fail to keep it in print, after a specified time, the publishing rights revert to me.

    On top of the publishing rights there are all the sub-rights, which are sold separately by me for TV, movies, plays, theme parks, merch, etc…

    If I make a chair, it’s mine, right? If I loan it to you, it’s still mine. If you come over to my house and sit in that chair, it’s still my chair. If I allow you to rent my chair out, it’s still my chair. Under normal rules of property ownership, I’d own that chair forever, and could pass it along to my heirs who would also own that chair forever. Right?

    But for some reason if I create a story and let you read it, it’s yours? Why? There’s an anti-creative bias built into this thinking. You discount the idea that a story is an object of value, just like a chair. Somehow society has decided that if I make a chair it’s mine forever, but if I create a story my ownership of same is some sort of burden on society and my ownership has to be curtailed. Why? For some theoretical societal benefit? By that same logic, if my chair is gathering dust in the attic, why shouldn’t you be able to take it and put it to greater use?

    The notion of intellectual property, and protection of same, is a necessary adaptation of law as society makes fewer chairs and more ideas.

    ReplyReply
  25. Michael Reynolds says:

    @Gustopher:
    If nothing of mine ever becomes a movie, how many children go hungry as a result? I’m guessing zero.

    And we are likely missing a premium tv series about Galt’s Gulch falling into ruin without the little people to do work, because the estate of Ayn Rand eagerly protecting that copyright.

    We’re also missing a premium TV series about how our characters use their powers to become a version of The Boys. Which is not what the story is about. Continuing the chair metaphor above, you think if I make a chair, someone else should be able to break the legs off and use them to beat people over the head. Now, if I sell them the chair, cool. But in your scenario someone can knock on my door, say, ‘hey, we don’t think you’re getting the most use out of that chair, so we’re taking it and using it as kindling to burn a witch.’

    Because something something society something Napster something.

    ReplyReply
  26. grumpy realist says:

    U.S. copyright has been known among those of us of the IP law persuasion as “the Mickey Mouse Protection Act.”

    My own opinion is that we should go back to the two 28-year cycles, and if you don’t care enough to make sure you renew your copyright with all the associated licenses, too bad.

    One of the major problems with these ridiculously long copyright periods is that after the author has died and the immediate family has died, it’s quite often impossible to determine who in fact is the rights holder. So if anyone wants to put together an anthology of obscure gems dating from the 1930s, we wouldn’t even be able to start the task without a lot of expensive legal work.

    I’d be willing to keep these incredibly long copyright periods on either of two conditions: 1) renewals every 10 years, like with trademarks, and the fees go up exponentially; or 2) the publication has to Stay In Print. If there isn’t enough demand to keep the thing going, then poof, you lose your copyright.

    ReplyReply
    1

Speak Your Mind

*