Betty Boop and Indefinite Copyright 249
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.'"
Re:Yet again, no information (Score:5, Informative)
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.
Re:Weird decision (Score:5, Informative)
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
Clarifying comment (Score:5, Informative)
I'm re-posting one of the comments from TFA here, as it seems to clear up some of the confusion.
Re:Weird decision (Score:3, Informative)
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
* Chuck Grassley -- Iowa
* Arlen Specter -- Pennsylvania
* Jon Kyl -- Arizona
* Chuck Schumer -- New York
* Lindsey Graham -- South Carolina
* Dick Durbin -- Illinois
* John Cornyn -- Texas
* Benjamin L. Cardin -- Maryland
* Tom Coburn -- Oklahoma
* Sheldon Whitehouse -- Rhode Island
* Amy Klobuchar -- Minnesota
* Al Franken -- Minnesota
* Chris Coons -- Delaware
These are the other evil men and women that fight for corporate rights above the rights of the people of the united states.
Re:Weird decision (Score:3, Informative)
Your information is a bit out of date.
Arlen Specter and Russ Feingold are no longer serving in the Senate.
Re:Yet again, no information (Score:5, Informative)
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:Weird decision (Score:4, Informative)
How about video games? Epic Mickey [wikipedia.org] for the Wii was released in November 2010. The character is definitely still in use.
Another important related case (Score:5, Informative)
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).
Re:sanity ? (Score:5, Informative)
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.
Re:Betty Boop Copyright Details (Score:5, Informative)
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?
Re:Weird decision (Score:5, Informative)
Write him a letter and congratulate him? Judges are people too, and they enjoy being right.
Re:Weird decision (Score:4, Informative)
Evil being senators who are not working in the interest of the people who voted them in. Period.
Re:Weird decision (Score:4, Informative)