Re: [dvd-discuss] Copyright v. Trademark

["Steve Hosgood" <steve(at)caederus.com>]

Joshua Stratton writes:
> One of the underlying theories that I think we, and Disney, have been 
> operating under is that a work hitting the copyright public domain makes 
> it basically generic in a trademark sense. E.g. Disney might lose a 
> trademark in Mickey Mouse generally....
>

Which is of course why they fight so hard. I was thinking about this just
the other day. Disney can't be making serious money on "Steamboat Willie"
these days, but they're terrified of the side-effects of it going P.D.

Which of course it did in 1979 according to any sensible reading of contract
law. Copyright was publication-year plus 50 in 1929 wasn't it?

(Yes I know the story that Sb.W wasn't copyrighted in the first place...)

> ... a trademark holder of a public domain 
> character can't prevent the creation of derivative works based on the p.d. 
> work in which the character originated, nor the competition, however 
> confusing, in commerce that might spawn from such derivatives being 
> created.
>

No, but they can stop anyone using that P.D image as a *trademark* for as long
as they care to.

> What I really want to know is if anyone has seen any cases squarely on 
> point here?
> 

How about Micro$oft's trademark on "where do you want to go today"? As a plain
English phrase, it can never have been copyrighted, but MS use it as a trade-
mark with no problems.

Have you noticed that the Star Trek empire have very carefully made trademarks
of all the names of all the characters in ST and its derivatives. You always
see toys and things referring to "Commander Riker(tm)", "Data(tm)" and so
forth. Hey - there's another one: "Data" is a common word with no copyright
issues, but they've made a trademark of it.

Presumably, Universal's lawyers spotted that one day they'd lose copyright on
the recorded episodes, but wanted to make sure they kept control over the use
of the characters. This is *very* sneaky yet treads an interesting line
between what copyright was supposed to allow happen in time vs. a corporate
interest in keeping hold of its creations.

We (champions of P.D) should disapprove of this and strongly. Had A.C.Doyle's
heirs trademarked "Sherlock Holmes" and "Dr. Watson" then despite the original
stories falling into P.D, no-one would be able to make movies from them or
write new SH stories (as they do all the time) without bumping into the
trademark issue.



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Steve Hosgood                               |
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