Thursday, April 1, 2010

Special Announcement - Disney Opens Vaults to Public Domain!

Sorry about the lack of a review today, kiddies, but when I heard this news I simply had to go with it as today's lead - but don't worry, the regular column will be back tomorrow.

In a move that is sure to reverberate throughout the music, movie, and television industries, the Walt Disney Corporation announced today that it would be opening its vaults to the public domain. Formerly considerd one of the greatests proponents of copyright extensions and an enemy to those who support the expansion of the public domain, Disney today reversed its previous stance.

"In making this move we are recognizing the importance of the public domain not only to culture in general, but to the history of Disney in particular," said a Disney spokesperson. "Since many of our greatest and most popular films and shorts are themselves adaptations of works already free from copyright restrictions, we felt that it was time to do our part and pay the system back."

The history of Disney's relationship with the public domain is a long and troubled one. As the Los Angeles Times reported in 2008,
One of Walt Disney's earliest creations was Oswald the Lucky Rabbit. After the cartoon proved popular, a New York distributor used an advantage in its contract to take control of Oswald, then hired away many of Disney's artists. Mickey was the product of a desperate comeback attempt by Walt and his brother. After that painful experience, the Disneys "held on to everything they did with a ferociously strong grip," former company Vice Chairman Roy E. Disney said recently.

Mickey Mouse himself actually owes a lot to the public domain. The character made his first appearance in a cartoon called Steamboat Willie, itself a parody of the Harold Lloyd short Steamboat Bill Jr., which was released earlier the same year. (Actually, since the the Lloyd film had not yet entered the public domain, one would have to assume that Disney would have defended his creation as a fair use, another concept the Disney Corporation has fought against viciously in the past.) Also, of Disneys first eight feature films, seven were taken from stories in the public domain, including Snow White, Pinnocchio, Cinderella, and others.

Nonetheless, Disney has vigorously fought against its own creations entering into that self-same well that it has constantly drawn from. Nowhere was this more apparent, or more hurtful to the concept of the public domain than in the passage of the 1998 Copyright Term Extension Act. Realizing that Mickey was scheduled to enter the public domain in 2003 with numerous of its other cartoon icons (Goofy, Pluto, Donald Duck, etc,) to follow soon thereafter, Disney, along with other members of the entertainment industry pressured congress to pass the act, which extended term for items already under copyright another 20 years. The net result of this extension is that now (unless congress chooses to change the law again) NOTHING new will enter into the public domain in the U.S. until 2018.

Todays actions, however, may serve to change everything. In recognizing the value of the public domain and the importance of the creative commons in not only preserving our cultural heritage but expanding creativity, Disney's actions (which include contributing not only Mickey and related characters to the commons but all of its pre-1953 works - the year was apparently chosen to be in line not with the pre-1998 term for corporate works, but the 28+28 rule for general works) have opened the door for even more creative entities to follow suit.

"We simply took a look around and realized that we no longer wanted to be 'that company'," Disney's chairman said. "As a company we didn't want to be the people that just took and took and took and never gave back, so this is our way of making things right."

The above, of course, unfortunately, is merely an April Fool's Day offering. Let me make it clear that none of the above is true, except, of course, for the history of the Walt Disney Company's  fight against the public domain. For more information on Disney's efforts in terms of the 1998 CTEA, I recommend reading  The Public Domain Trapped by the Mouse: Walt Disney and Ramifications of the Copyright Term Extension Act which can be found here. More info on the act itself can be found here. For information on what could have entered the public doamin this year had the copyright terms not been extended, click here. And for an intersting article that considers the possibility that Disney's copyright stranglehold on Steaboat Willie and Mickey may not be as secure as everyone thinks, check here.

Oh, and of course, the image at the top of the article belongs to its copyright holder and is only used under the concept of fair use. Or as Wikipedia puts it, it is "a screenshot from a copyrighted film, and the copyright for it is most likely owned by the studio which produced the film, and possibly also by any actors appearing in the screenshot. It is believed that the use of a limited number of web-resolution screenshots for critical commentary and discussion of the film and its contents qualifies as fair use under United States copyright law."

Finally, I leave you with the words of noted copyfighter Lawrence Lessig from his keynote speech at OSCON 2002: hero, Walt Disney, created this extraordinary work, the birth of Mickey Mouse in the form of Steamboat Willie. But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, "stole" Willie from Buster Keaton's "Steamboat Bill."

It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no [waiting] 14 years--just take it, rip, mix, and burn, as he did to produce the Disney empire. This was his character. Walt always parroted feature-length mainstream films to produce the Disney empire, and we see the product of this. This is the Disney Corporation: taking works in the public domain, and not even in the public domain, and turning them into vastly greater, new creativity. They took the works of this guy, these guys, the Brothers Grimm, who you think are probably great authors on their own. They produce these horrible stories, these fairy tales, which anybody should keep their children far from because they're utterly bloody and moralistic stories, and are not the sort of thing that children should see, but they were retold for us by the Disney Corporation. Now the Disney Corporation could do this because that culture lived in a commons, an intellectual commons, a cultural commons, where people could freely take and build. It was a lawyer-free zone.

It was culture, which you didn't need the permission of someone else to take and build upon. That was the character of creativity at the birth of the last century. It was built upon a constitutional requirement that protection be for limited times, and it was originally limited. Fourteen years, if the author lived, then 28, then in 1831 it went to 42, then in 1909 it went to 56, and then magically, starting in 1962, look--no hands, the term expands.

Eleven times in the last 40 years it has been extended for existing works--not just for new works that are going to be created, but existing works. The most recent is the Sonny Bono copyright term extension act. Those of us who love it know it as the Mickey Mouse protection act, which of course [means] every time Mickey is about to pass through the public domain, copyright terms are extended. The meaning of this pattern is absolutely clear to those who pay to produce it. The meaning is: No one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm. That though we had a culture where people could take and build upon what went before, that's over. There is no such thing as the public domain in the minds of those who have produced these 11 extensions these last 40 years because now culture is owned.


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