Friday, August 22, 2008

"Everything has to fall into the public domain sometime"

An article by Los Angeles Times staff writer Joseph Menn

Disney's rights to young Mickey Mouse may be wrong

contains little fresh information, but it draws useful connecting lines along the history of the development of the theory that the copyright in the early versions of Mickey Mouse is possibly defective. It begins with Gregory S. Brown, a former Disney researcher who first discovered that the copyright notice on the 1928 cartoon Steamboat Willie might have been defective. It then moves to Dennis Karjala, who, Menn says, was an acquaintance of Brown's, and whose student, Lauren Vanpelt, wrote a paper titled "Mickey Mouse--A Truly Public Character," which developed the idea of flaws in early representations of the mouse. The theory was further developed by Georgetown Law student Douglas A. Hedenkamp, who in 2003 published a paper in the Virginia Sports and Entertainment Law Journal titled "Free Mickey Mouse: Copyright Notice, Derivative Works, and the Copyright Act of 1909." But when Hedenkamp wrote to Disney's lawyers asking for more information, the response from Disney General Counsel Louis Meisinger was "please be advised that slander of title remains actionable under California law for both compensatory and punitive damages."  Hedenkamp wasn't intimidated, and published the article.  

Another article, also by Menn,

Mickey's Many Roles

mentions, but does not name, the case of Eldred v. Ashcroft, which challenged the 1998 Copyright Term Extension Act (CTEA) on constitutional grounds. In the summer of 1998, when the CTEA seemed to be stalled in the Senate, Disney Chairman Michael Eisner was seen at Mississippi Senator Trent Lott's office.  Lott signed on as a co-sponsor of the CTEA a week later.  The Senate passed the bill in October of that year, and President Bill Clinton signed it, without any comment or announcement, on the last day before it would have died in a pocket veto.

Menn quotes Louis Meisinger, the former Disney lawyer, who is now a California judge, as stating that "everything has to fall into the public domain sometime."  The question is, however, would he have been able to say so if he still worked for Disney?   Would he have been capable even of thinking such a thought?  

Don't count on it.

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