Disney v the Public Domain

In an earlier post[1], we discussed how Disney has gone to great lengths to protect its intellectual property. As a result, their efforts have had a chilling effect on the public domain.

While Mickey Mouse is likely an original Walt Disney creation, or maybe a combination of public domain materials, a huge chunk of Disney’s subsequent works were unoriginal. Cinderella, The Little Mermaid, Sleeping Beauty, Snow White, and Beauty and the Beast are all based on fairy tales taken from the public domain by Disney. Interestingly, many of the well-known Disney fairy tales were adapted from the Brothers Grimm stories, which were adapted from the public domain.

The first copyright law established not only copyright but also the public domain. The public domain is a component of humanity’s shared cultural and intellectual history, and it serves as a primary source of inspiration, creativity, and discovery for innovators. Works in the public domain are not subject to any limitations and may be freely utilized for commercial and non-commercial purposes without authorization. It is critical for access to knowledge and must be available to creators, innovators, universities, and research institutions. [2] Creative materials in the public domain are not protected by intellectual property, and authors are free to copy, publish, distribute, and create new works based on the original.

As a result, the shift toward longer copyright terms coincided with a shift away from individual creators and toward a shrinking public domain. While individuals continue to create creative works today, the most profitable forms of works are reserved for corporations; and The Walt Disney Company is the corporation with the most profitable form of creative works.[3]

Why is the Public Domain important?

The Public Domain serves as the raw material from which we develop new information and creative products. A healthy and vibrant public domain is critical to our societies’ social and economic well-being. Much of the world’s knowledge is in the Public Domain, including Leonardo’s paintings, and Newton’s Laws of Motion. Society continually re-uses, reinterprets, and reproduces content in the Public Domain, developing new ideas and producing new work in the process. New theories, inventions, cultural works, and the likes are all, owed to earlier ages’ knowledge and ingenuity.[4]

Examples of work in the Public Domain

  1. F. Scott Fitzgerald, The Great Gatsby
  2. Etsu Inagaki Sugimoto, A Daughter of the Samurai
  3. Harold Lloyd’s The Freshman
Books that are in the public domain

Increased public access to creative works has always resulted in a reaction by copyright holders aiming to strengthen their monopoly. Every increase in copyright authority leads to an equivalent loss of public domain access. With each successive extension, the rights earned when a work enters the public domain grow. When copyright was still severely limited in duration and scope, the value of the public domain was similarly constrained. However, as copyright has increased, so have the rights earned by the public when a work enters the public domain. Nowadays, copyright holder not only has the right to consent to have their work copied; they also have the unique right to govern the material that is publicly exhibited.[5]

Consider the song “Happy Birthday,” which is sung at countless birthday parties each day. When that song was still copyrighted, the copyright holder received millions of dollars in license fees every time it was sung publicly, including at birthday parties shown in documentaries. When the song became public domain, everyone had the freedom to sing “Happy Birthday.” [6]

Nowadays, copyright includes the right to make derivative works, which are legally defined as any production “based on” the original copyrighted work. This is commonly thought to protect media changes. For example, the copyright holder of a book has the sole right to turn that work into a film or play. “The derivative works right grant Disney the exclusive right to license stuffed animals, home films, t-shirts, pencils, miniatures, toys, teapots, and anything else bearing pictures of characters from Disney’s copyrighted works.” This implies that such rights are likewise acquired by the public when the work enters the public domain.[7]

However, with the various copyright length extensions lobbied by Disney, works that should have been in the public domain a long time ago, have failed to fall into the public domain; For the first time (in the US) in 25 years published works of expression including books, music, and films started moving out of copyright protection and into the public domain on the first of January 2019.

Conclusion

As stated above, the public domain is a major source of inspiration, imagination, and discovery for creators. It is critical to have access to knowledge for the benefit of creators, inventors, universities, and research institutions and thus it is important that it is protected as much as the rights ofcreatives.

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[1] https://mphogama.medium.com/the-house-of-mouse-will-mickey-fall-into-the-public-domain-in-2024-54c9ef6e653?source=your_stories_page-------------------------------------

[2] https://www.ifla.org/publications/the-public-domain-why-wipo-should-care-2007/#:~:text=Works%20in%20the%20public%20domain,inventors%2C%20universities%20and%20research%20centres.

[3] https://blog.ipleaders.in/disney-v-public-domain-mickey-mouse-keeps-changing-copyrights/

[4] https://www.europeana.eu/en/rights/public-domain-charter

[5] https://harvardjsel.com/wp-content/uploads/sites/9/2021/02/Lantagne.pdf

[6] https://harvardjsel.com/wp-content/uploads/sites/9/2021/02/Lantagne.pdf

[7] https://harvardjsel.com/wp-content/uploads/sites/9/2021/02/Lantagne.pdf

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