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Betty Boop and Indefinite Copyright 249

Posted by Roblimo
from the boop-boop-a-doop-forever dept.
An anonymous reader writes "Apparently the Fleischer estate has lost a court battle for the rights to Betty Boop, a character created by Grim Natwick at Max Fleischer's studio in 1930. The 9th Circuit US Court of Appeals (based in San Francisco) ruled against the Fleischers, saying in their decision, 'If we ruled that AVELA's depictions of Betty Boop infringed Fleischer's trademarks, the Betty Boop character would essentially never enter the public domain.'"
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Betty Boop and Indefinite Copyright

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  • Weird decision (Score:5, Insightful)

    by Joce640k (829181) on Tuesday March 01, 2011 @06:30AM (#35346096) Homepage

    Maybe they have less money/lobbyists than Disney or something...

    • by rufty_tufty (888596) on Tuesday March 01, 2011 @06:44AM (#35346136) Homepage

      Do you think it's possible to mod a Judge insightful?

    • Re:Weird decision (Score:5, Informative)

      by Anonymous Coward on Tuesday March 01, 2011 @06:56AM (#35346178)

      Some old Betty Boop posters ran out of copyright.
      Those images were reproduced.

      The two questions being decided were:
      Q1. Who has the copyright
      Q2. Who owns the trademark

      A1a. Copyright no longer applies to the images being sued over.
      A1b. The Plaintiff didn't prove they owned the copyright to Betty Boop.
      A2. The Plaintiff didn't prove they owned the trademark to the Betty Boop character.

      A lack of evidence is what got them kicked out of court

    • Re:Weird decision (Score:5, Interesting)

      by Farmer Tim (530755) <roundfile@mindle ... com minus author> on Tuesday March 01, 2011 @07:45AM (#35346314) Journal

      Fleisher Studios was a direct competitor with Disney, and even created a Superman villain that looked suspiciously like Walt [archive.org].

      Revenge is a dish best served cold.

    • Re: (Score:3, Informative)

      by Lumpy (12016)

      Yup, they dont own senators like Disney does.

      Senator Hach was one of disneys personal property. They owned him and controlled him completely.

      * Patrick J. Leahy -- Vermont
      * Herb Kohl -- Wisconsin
      * Jeff Sessions -- Alabama
      * Dianne Feinstein -- California
      * Orrin G. Hatch -- Utah
      * Russ Feingold -- Wisconsin
      * C

      • Re: (Score:3, Informative)

        by kmdrtako (1971832)

        Your information is a bit out of date.

        Arlen Specter and Russ Feingold are no longer serving in the Senate.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        Nice to see the Senate acting nonpartisan about something. A shame its stealing rights from citizens.

      • by Arccot (1115809)

        These are the other evil men and women that fight for corporate rights above the rights of the people of the united states.

        Evil being people who disagree with you? Also see: "not a real American"

        Taking the most well known of the bunch, you seriously believe Al Franken is bought and paid for by corporations? Have you looked at any other issues he's voted or spoken out on?

        Different people can have legitimate disagreements about public policy without being evil, corrupt, or ignorant. To call them such just shows your intolerance.

        • Re:Weird decision (Score:4, Informative)

          by Opportunist (166417) on Tuesday March 01, 2011 @11:25AM (#35347474)

          Evil being senators who are not working in the interest of the people who voted them in. Period.

        • by DinDaddy (1168147)

          Taking the most well known of the bunch, you seriously believe Al Franken is bought and paid for by corporations? Have you looked at any other issues he's voted or spoken out on?

          He's doing some positive things, but here is a quote from him today on Ars about COICA:

          The other side of this, of course, is that this is about, essentially, stealing copyrighted material and selling counterfeit goods. This goes to tens of billions of dollars in theft. Some of the supporters of this were after the American Federation of TV and Radio Artists, the Screen Actors Guild, the Directors Guild I happen to belong to all three of those unions. This doesn't just affect the jobs of writers and directors and producers; when they're free to steal all this intellectual material, it changes the business model of a movie. So it really costs the jobs of the technicians and the crew and the craft services people. It changes the entire business model for the industry. It's not just movies and TV, it's everything.

          So yeah, there's some vested interest going on there.

          • Re:Weird decision (Score:5, Insightful)

            by anyGould (1295481) on Tuesday March 01, 2011 @12:40PM (#35348256)

            The other side of this, of course, is that this is about, essentially, stealing copyrighted material and selling counterfeit goods. This goes to tens of billions of dollars in theft. Some of the supporters of this were after the American Federation of TV and Radio Artists, the Screen Actors Guild, the Directors Guild I happen to belong to all three of those unions.

            So yeah, there's some vested interest going on there.

            On the plus side, not only is he very honest about his vested interest (I snipped the quote to just the relevant part - he's a member of the three unions), but at least they're *his* interests, and not interests paid for by outsiders.

            I still think they should have gone with the NASCAR idea, where instead of the byline being (Joe Politician, D-Arizona) it was (Joe Politician, Exxon, IBM, Mattel). These days knowing who their major donors are is more informative than what party they belong to...

      • Amy Klobuchar and Al Franken from Minnesota? Yeah, I think your info is a bit off... They are hardly in big corporation's pockets.
        • Re: (Score:3, Insightful)

          al franken has a fiduciary interest in long or infinite copyright given his numerous publications and other copyright protected merchandise.

      • by cforciea (1926392)
        Did you just pull those names out of a hat, or did you just get them from some conservative talk show host's website? I mean, Russ Feingold? The guy voted against Clinton's health care reform because he thought it was too pro-insurance. Hell, per his wikipedia article, his 2003 tax return shows home mortgages and a 1998 Buick, so if he was in bed with big business, he sure got the short end of that stick.
    • I don't know... Thinking about it, it almost makes sense. Disney is still actively using Micky Mouse. Betty Boop on the other hand, only exists for merchandise. I'm fine with that. It's like a troll shouldn't be able to sit on a patent without using it, but if Microsoft is using Kinect technology they should have a right to it.
      • by PopeRatzo (965947) *

        but if Microsoft is using Kinect technology they should have a right to it.

        Forever? As long as they are "using" it?

        • Producing New works... I'm fine with that I suppose.
          I think it sucks when IP laws hurt creativity by letting stagnate IP owners sit on something and then sue when someone actually tries to create something. If they are actively creating, as a consumer, I'm totally fine with that.
        • Re: (Score:2, Interesting)

          by Anonymous Coward

          Guess the estate of whoever invented the pencil should start suing for a metric ton of money then. People still use that... guess it shouldn't be public domain yet.

    • Honestly, I'm a little surprised Disney didn't send in their lawyers to help. This decision has to scare the hell out of them.

    • I used to teach a class that dealt, in part, with U.S. copyright issues. Before 1998, I gave them the standard "life of the author plus 50 years, or 75 years if it's owned by a business." But after Sonny Bono's Copyright Extension Act [wikipedia.org] in 1998, I just told them "If it's not in the public domain already, it probably never will be." It's a sad statement on what copyright has become (and how corporate interests thoroughly own our legislatures). I fully expect that a similar extension will pass long before 2019,

      • You spelled Sonny Boner's name wrong. Even as a little kid, I thought he looked like a dickhead. (Well, maybe not real little - I guess he and Cher were active during my late elementary years, and Junior High School.) Sonny Boner, the giant dickhead.
    • Re:Weird decision (Score:4, Informative)

      by Deep Esophagus (686515) on Tuesday March 01, 2011 @11:30AM (#35347522)
      What's really galling about Fleischer Studios' attempt is the fact that the Betty Boop character was a direct rip of the look and voice of actual human Helen Kane [wikipedia.org], right down to the last boop-a-doop [youtube.com]. She fought the studio unsuccessfully in court to retain rights her unique style. So suck it up, corporate lawyers for Fleischer, what goes around comes around.
  • sanity ? (Score:5, Insightful)

    by Tom (822) on Tuesday March 01, 2011 @06:44AM (#35346134) Homepage Journal

    Sanity in copyright law? Gosh, you look different. Haven't seen you for years. How's life? Must be horrible, you look like an abuse victim. You sure you're not taking drugs?

    • Re:sanity ? (Score:5, Funny)

      by MrKaos (858439) on Tuesday March 01, 2011 @07:45AM (#35346316) Journal

      Sanity in copyright law? Gosh, you look different. Haven't seen you for years. How's life? Must be horrible, you look like an abuse victim. You sure you're not taking drugs?

      They call me Toot now. Sometimes I cut myself to relieve the pain...

    • Re:sanity ? (Score:5, Informative)

      by Sonny Yatsen (603655) * on Tuesday March 01, 2011 @09:49AM (#35346790) Journal

      Gah, it's not a matter of copyright law here. Fleischer sold the rights to the Betty Boop to another studio, who in turn sold it to Paramount, who in turn sold it to Harvey. The whole thing comes down to whether the Fleischer estate can sue someone for the rights they gave up half a century ago. The Reuters article linked to by the blog actually states this, while the blog turns it into some sort of copyright spin, which doesn't matter so much as Fleischer's estate had no ownership interest in the property itself.

    • Sanity is that moment when a child begins to open a door but is still blissfully unaware of what lies beyond it.
  • by PCM2 (4486) on Tuesday March 01, 2011 @06:50AM (#35346156) Homepage

    Once again, a story about a lawsuit posted to /. with a particular spin but very light on facts. According to one of the linked articles:

    [Judge] Wallace also said the defendant AVELA Inc, which licensed Betty Boop dolls, T-shirts and handbags under a copyright based on vintage posters, did not infringe any trademark, having not held out its products as "official" or misled customers.

    So according to one article Avela licensed the images, according to another they were public domain. According to one, the images are OK because they're not claimed to be "official," according to the other the images are OK because Betty Boop is public domain. What's the real story? Is it about public domain? Is it about the relationship between copyright and trademark? I have no idea. Neither the reporters or the submitter bothered to explain, or apparently, even to find out.

    • by Sockatume (732728) on Tuesday March 01, 2011 @06:54AM (#35346172)

      Yeah, there's some ambiguity there as to whether they were the licencor or the licencee of the Boop designs in question. In any case it seems that the decision was made on the plaintiffs' inability to demonstrate that they held any copyright over the character at all, with the trademark aspect being a secondary issue.

    • by richie2000 (159732) <rickard.olsson@gmail.com> on Tuesday March 01, 2011 @07:00AM (#35346194) Homepage Journal

      The real story seems to be that PD trumped trademarks. Which is good, since trademarks can run for ever, while copyrights expire. If you could leverage eternal trademarks to prolong copyrights, that would defeat the spirit of copyright law.

      • by Dunbal (464142) * on Tuesday March 01, 2011 @07:19AM (#35346240)
        Now someone needs to challenge Parker Brothers' trademark on Monopoly, since I believe the copyright has expired a while ago.
        • by cdrudge (68377) on Tuesday March 01, 2011 @09:21AM (#35346656) Homepage

          The trademark was nullified, but later reinstated after Congress modified trademark law. The copyright is still valid. However the original concept of the game was in the public domain, so variants don't have to be officially licensed by Hasboro/Parker Brothers. However if you want to use the -opoly name and/or design elements that significantly resemble the official Monopoly version, it may be cheaper in the long run to actually license it vs risk going to court.

          • Re: (Score:2, Funny)

            by mwvdlee (775178)

            Shouldn't be hard to make up variants.
            I'm thinking the players would be pimps, the houses whores and when you get four whores, you can buy a brothel.
            I'm sure most large cities have a few suitable streets, although perhaps half of the board should be covered by Las Vegas.
            Chance cards could be stuff like "After an arduous beating, one of your bitches fesses up and hands you the $10,000 she's been hiding".
            Utilities could be the abortion clinic and STD center.
            Just don't know what to do with the railroads, thoug

            • by silanea (1241518)

              Just don't know what to do with the railroads, though.

              Drug trafficking cartels. The more you control, the higher you can push the prices.

            • by drinkypoo (153816)

              Just don't know what to do with the railroads, though.

              Obviously you need to have a square which represents Detroit, and the player who wins detroit, then buys and shuts down all railroads wins. You shut it down by placing it face down and never collecting any further revenue; the property becomes unavailable in perpetuity.

        • by Drakin (415182)

          You haven't been in a game shop recently. There's knock off versions of *opoly by the boatload.

    • So according to one article Avela licensed the images, according to another they were public domain. According to one, the images are OK because they're not claimed to be "official," according to the other the images are OK because Betty Boop is public domain. What's the real story? Is it about public domain? Is it about the relationship between copyright and trademark? I have no idea. Neither the reporters or the submitter bothered to explain, or apparently, even to find out.

      Here's the deal. The Betty Boo

      • by Artifakt (700173) on Tuesday March 01, 2011 @10:23AM (#35346992)

        The dates, i.e. 1924, 1930, and similar, are an important part of this problem. The other date that makes them important is 1929. When the great depression hit, a lot of judges divided up assets of failing companies among creditors and included trademarks and copyrights in those assets. You have a huge spike in bankruptcy cases, where they were overwhelming the courts, and where the IP was generally thought to be trivial, near worthless, and the courts were mostly focused on the physivcal property such as buildings, presses and even paper stock, treating the IP as an afterthought. Tremendous copyright extensions mean all those cases are part of sorting through who owns what today.
              Take the Lovecraft estate. H P Lovecraft was generally out of the habit of selling all rights to a story to a magazine by 1926. He wrote in the amateur author's magazines about the advantages of selling just first rights in case there was an actual chance at further publication, and seems to have been very serious about it. His single, most famous work, The Call of Cthulhu, was published in 1926, presumably as a first rights sale if he kept to what he announced he would do. But, if you look at the Lovecraft copyright trail, there are a huge number of his most major works where, in the early 30's, as HPL lay dying of bright's disease, some small press or other claimed his works, gave them away as part of a bankruptcy case, and often awarded them to some other company that seems to have existed only for a few days as one court settlement after another cascaded through the overburdened system.
                The system didn't promoter progress in the sciences and useful arts, it ripped off a great artist as he lay dieing in agony. The current versions of the laws preserve the right of litigants to dredge up some of the most spurious and fraudulent precedents ever entered into American law..All the court cases subsequent to that are tainted (fruit of the poisonous tree doctrine). I doubt either Brown University or the Estate of August Derleth could be said to have less than the highest respect for Lovecraft himself, but their court cases were based on a legal tangle that made them very hard to settle fairly and serve as a model of nobody being really satisfied once finally over. How many other authors are less known today, not for any flaw on their part but because the depression court battles wiped out any chance of their being published again?

  • Hurray! (Score:5, Funny)

    by Xachariah (995669) on Tuesday March 01, 2011 @06:51AM (#35346162)
    Since Betty Boop was made in 1930 and Mickey Mouse was made in 1928 then this means that Mickey Mouse is now in the public domain! ...right?
    Hey what's with all the laughing?
    • Re:Hurray! (Score:4, Interesting)

      by Anonymous Coward on Tuesday March 01, 2011 @08:30AM (#35346454)

      Yes!

      In the 1990s, former Disney researcher Gregory S. Brown determined that the film was likely in the public domain in the United States already due to errors in the original copyright formulation.[3] In particular, the original film's copyright notice had two additional names between Disney and the copyright statement. Thus, under the rules of the Copyright Act of 1909, all copyright claims would be null.

      But you'll need a lot of money to prove it.

      http://en.wikipedia.org/?title=Steamboat_Willie [wikipedia.org]

      It is also public domain in Australia.

      • by w_dragon (1802458)
        There are sites that show a lot of the old Disney stuff - steamboat willie, silly symphonies, victory through air power. Youtube has full versions of most pre-2000 Disney movies - snow white, cinderella, mulan, aladdin. For all that Disney makes sure their movies never leave copyright, they are good at turning a blind eye to copyright violations that don't cost them anything.
      • by tepples (727027) <.moc.liamg. .ta. .selppet.> on Tuesday March 01, 2011 @11:36AM (#35347560) Homepage Journal

        Gregory S. Brown determined that the film was likely in the public domain in the United States already due to errors in the original copyright formulation.

        But who is willing to risk millions of USD testing Brown's argument in a court of law? As long as the answer is nobody, the copyright is still de facto valid.

  • Clarifying comment (Score:5, Informative)

    by richie2000 (159732) <rickard.olsson@gmail.com> on Tuesday March 01, 2011 @06:59AM (#35346182) Homepage Journal

    I'm re-posting one of the comments from TFA here, as it seems to clear up some of the confusion.

    David Gerstein says:
    02/27/11 9:01pm

    Rough analysis (could be wrong):

    The Betty Boop character is a Fleischer trademark.

    But—Betty Boop 1930s movie posters were not copyrighted (or not renewed?) as standalone items, so are public domain.
    Fleischer tried to use its active trademark on the character to stop a third party’s use of the ancient PD art. Judge said this was a no-go.

    What I take from the judge’s ruling is that the trademark only applies to new, modern uses of the character. It can’t be used to stop people from redistributing old PD Betty images/items. Fleischer tried to say trademark trumped copyright; the judge is saying that it doesn’t.

    This is actually pretty major. In recent years, Warner has used the active trademarks on Looney Tunes characters to quash third parties’ reissues of PD 1930s/40s Looney Tunes content (of which there is a lot). If the Betty decision is not reversed on appeal, then Warner is stripped of its strongest weapon against the public domain.
    It can use the trademark against those who would create new Bugs Bunny items, but not against those who would exploit old PD material that Warner failed to protect.

    The issue of whether Paramount legitimately sold the active Betty trademark to Harvey appears to be entirely separate, though very interesting.

  • author would always be a person, never a corporation corporations can own copyrights, of course, but they don't enjoy benefits of authorship

    otherwise, you wind up with these obscene situations where forgotten media is featured in a new movie/ whatever, and the original author stands to make some ancillary revenues, rather than nothing, from the new exposure, but no one can license the dead content because its too laborious/ tedious/ expensive

    sanity please!

    • Why give people a lifetime copyright? Why not go back to the original copyright term, 14 years, and build a strong public domain?
      • by Lumpy (12016) on Tuesday March 01, 2011 @08:50AM (#35346530) Homepage

        Because that does not make lazy idiots that want to milk their inheritance for money rich.

        We have to think of the lazy grand children and great grand children!

        • The lazy Children and Grand children of Disney are getting peanuts .... it's the Disney Corporation that make the money

          This is the same for most people the estate makes the money, it's run as a company, and some of the, often minor, shareholders are the kids/grandkids ....

      • by cbope (130292)

        Sounds good, but good luck getting the rights holders to agree to that without a gun to their heads.

        • Someone SHOULD put a gun to their heads. And be willing to pull the trigger.

        • by jbeaupre (752124) on Tuesday March 01, 2011 @09:19AM (#35346644)

          Easy. Two words: Property Tax.

          First 14 years: 0 tax
          Next 14 years: 5% of assessed value, minimum $25,000 per year per copyright
          Next 14 years: 5%, $50,000 min
          Next 14 years: 5%, $100,000 min

          and so on. Make people and companies VERY careful about which works they wish to maintain copyright on.

          • by jgtg32a (1173373)
            Minimum of $25K? I'm glad to see you put a lot of thought into this.
          • by natehoy (1608657)

            Sounds mostly good to me, but I'd use straight percentages of the annual return and get rid of minimums. That way, people who have a minor inheritance (say, a semi-popular children's book that brings in $5,000 a year in royalties) wouldn't have its entire value stripped in 14 years while Disney only loses a fixed percent.

            I'd also give the work a 20-year run to start but make the renewal after that a little different.

            First, screw the "assessed value", that's guaranteed work for accountants and makes "Hollywo

      • by jgtg32a (1173373)

        The excuse for a limited copyright in the United States is that an author who has produced a book and has had the benefit of it for that term has had the profit of it long enough, and therefore the Government takes the property, which does not belong to it, and generously gives it to the eighty-eight millions. That is the idea. If it did that, that would be one thing. But it does not do anything of the kind. It merely takes the author’s property, merely takes from his children the bread and profit of that book, and gives the publisher double profit. The publisher and some of his confederates who are in the conspiracy rear families in affluence, and they continue the enjoyment of these ill-gotten gains generation after generation. They live forever, the publishers do
        -Mark Twain.

        Personally I'm in favor of Life + 19 years so if a wildly successful author dies in the process of impregnating his wife, they'll be covered. As for corporate I think that would require a bit of research find out how old "freelance" authors are when they create their works and how long most people live after they do so and use that date as the time corporate copyrights are good for. Those time frames are also assuming that they filed for the extension, how long that is would requires a bit of research (ne

  • by Dachannien (617929) on Tuesday March 01, 2011 @09:26AM (#35346682)

    There's another important case currently at the Eighth Circuit Court of Appeals, Warner Bros. Entertainment, et al. v. X One X Productions, et al., [justia.com] to which AVELA is also a defendant.

    The case involves the use of images of Dorothy and friends from the Wizard of Oz. The characters were published, shortly before the movie was released, on promotional movie posters for which copyright was not sought (in those days, you had to register copyrights, unlike today, where the Berne Convention specifies automatic copyright upon publication). However, the district court ruled that the defendants, in selling various products featuring images of the Wizard of Oz characters (though not taken specifically from the movie, which is still under copyright) infringed upon the plaintiff's copyright in the movie because it used the images of the characters.

    Of course, what the Ninth Circuit says in the case in TFA is apposite to the case in the Eighth Circuit. If one can infringe the copyright of a work by merely using images of characters depicted therein, then the copyright on a character can be maintained indefinitely by simply using the character in a new work from time to time. Even if the earliest works were in the public domain, the characters in those works would still be protected by the copyrights of the newer works, and this could be extended into perpetuity at the whim of the copyright holder. That clearly violates the "limited times" part of the Copyright Clause of the Constitution (although the Ninth Circuit addressed this in terms of the 1909 Copyright Act, which was the controlling law when the Wizard of Oz movie's copyright came into force, and which indicates that copyrights can't be extended in this fashion).

  • by tekrat (242117) on Tuesday March 01, 2011 @10:13AM (#35346910) Homepage Journal

    Grim Natwick, the animation artist who created the character of Betty Boop told a story to Howard Beckerman, an animation historian, and my instructor when I attended School of Visual Arts in NYC.

    Apparently, Grim was up for a scholarship to the Art Institute of Vienna, and he was competing against another young artist of the time, a young man named Adolf Hitler. Grim got the scholarship, beating out Adolf.

    For decades, Grim blamed himself for World War II. If he'd let Adolf win the scholarship, that guy might have just gone on to become some nameless painter doing still-lifes, instead of becoming the most infamous name in all of history.

    I'm not sure how true this all is, but it sounds plausible. Either way, it's a good story related to Betty Boop.

    • Interesting story and well worth sharing. I'm not sure it would have made any difference though. Even if accepted into art school he would have still been in Vienna and he formed his anti-Semitic views there while not in art school. Serving in WWI had a huge negative influence on him and got him into politics eventually. He might have served in the army anyway even if he had become a successful artist. I think the general consensus is that Hitler was a pretty mediocre artist so worrying about what woul
  • by westlake (615356) on Tuesday March 01, 2011 @10:59AM (#35347254)
    The real question was the chain of title.

    The heart of the issue was the chain of ownership put forward by Fleischer Studios, which claims Paramount transferred the rights it bought from Max Fleischer to UM&M TV in 1955. That entity in turn transferred the rights in 1958 to National Telefilm Associates, which became Republic Pictures in 1986. About 10 years later, Republic Pictures transferred the exclusive copyright to Fleischer Studios. Fleischer Studios' scenario failed to convince U.S. District Judge Florence-Marie Cooper, however. She found for the plaintiffs, ruling that the company had failed to show proof for any of the purported transfers that occurred after Paramount purchased the rights. The three-judge appeals panel agreed, 2-1.

    Court Says Right to Betty Boop Is Anyone's Guess [courthousenews.com]

    A footnote here:

    The expiration of the rights to "Steamboat Willie" gives you the right to produce derivatives of "Steamboat Willie ---" and only "Steamboat Willie."

    Eight minutes of silent-era sight gags with a synchronized sound track and a thin narrative thread.

    You do not get the rights to other stories, you do you not get the rights to use Disney's distinctive - trademarked - character designs in any of their many incarnations.

  • Mickey Mouse was created in 1928, two years prior to Betty. So how is he still protected if Betty isn't? I smell corporate lobbying perverting the purpose of the copyright laws.

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