Good Morning and Happy New Year/Public Domain Day 2024! This is Shadow_8472 and today in the US public domain we welcome original Mickey Mouse along with many other works from 1928. Let’s get started!
The Need for Copyright
Art takes effort to create, but less to copy. We live in a world where the collected works of around 35-40 authors spanning around 1,500 years have been preserved by tens of thousands to millions of scribes, monks, reformers, translators, archaeologists, shepherds, curators, app developers, system admins, and more. The cost of a copy is negligible to the point of free; one could probably squeeze more than a couple million copies onto a 2 Tb external drive sold on Amazon for $10.50. (This figure assumes individually compressed 4.3 Mb files. I did not actually compress a full text Bible as a proof of concept.)
By the same principle, it is similarly trivial to copy and distribute any non-material good. Uncontrolled, it will disincentivize the creation of new works. This is why we have copyright protection so we can enjoy new works.
The Need for Public Domain
Art takes inspiration to create. Somewhere between whatever day you are reading this blog post going back to antiquity is a point where a work’s original creator is long gone and further copyright protection only serves to let the work either fade into irrelevancy or turn into a perpetual income source for the cost of maintaining an archive.
Meanwhile artists wishing to use copyrighted material must either sign a contract with the copyright holder or work in a legal gray zone. To a non-legal expert such as myself, all is fair in this gray zone except directly selling works containing copyrighted content unless the owner bothers stopping it with a cease and desist notice. And if/when it ends up in court, legal experts may explore the possibility it might have been fair use all along.
Some Intellectual Property (IP) holders are chill and consider fan works as unsponsored advertising, while others ruthlessly defend their copyrights to the fullest extent of the law. While the Sir Arthur Conan Doyle estate was bad with Sherlock Holmes’ stories, Disney has been the most ruthless of them all – going so far as to lobby themselves up a total of 40 years of extended protections atop the original 53 entitled to Mickey Mouse. All this was done while ladling stories from the very same public domain they were sabotaging.
Be it from financial troubles, forfeit legal privileges, pressure from social media, or something else, they did not seek another copyright extension, and the public domain finally contains long sought after characters such as Mickey, Minnie, as well as the second of two original storybooks about Whinny the Pooh – releasing Tigger along with it.
Speculation: If Copyright Was Never Extended
The first national copyright law in the US was the Copyright Act of 1790, which came the year after the constitution. It provided up to two 14 year terms of protection assuming the copyright holder was alive to renew within 6 months of an upcoming expiration. Assuming subsequent copyright expanded to cover new technologies beyond maps, charts, or books, aggregated expirations to January 1 in the same way, but never extended the total of this term, what would the next few years look like? Probably too wildly different to explore right now. But suppose they were to snap back instead…
The first thing that comes to my mind is the WINE project. WINE Is Not an Emulator; it’s a compatibility layer that translates Windows programs’ system calls into Linux equivalents on the fly – often for gaming. To skirt copyright, its developers are split into two teams: one team decompiles Windows files and takes notes. The other team uses these notes to re-implement open source files based on these notes without ever having seen the original code.
If copyright lasted 28 years tops, we would be getting Windows 95 into the public domain today. From prior research I might not have posted about, I know DosBox runs early Windows programs just fine until Windows 95 because up until then, it was all a glorified command prompt and backwards compatibility was in its nature. In this scenario, Windows 95 files would be fair game for WINE team 2 to directly use and improve so long as they remove all trademarks. Microsoft would have competition as upset users switch to one of a growing list of forks – both community driven and commercially maintained by 3rd parties. There would be security patches and I’d be surprised if nobody developed a 64 bit version.
In the entertainment industry, people would have a chance to independently retell the original stories they grew up with before old age. Original copyright holders would have to tell a better story if they want the nostalgia money. Meanwhile, fans would have a chance to hire original talent to extend canceled classics. Game devs who originally made works for hire could patch/modernize old code for another generation to enjoy. Comic book fans who have lost loved C-list characters to a disgruntled artist walking off with most of the copyrights could have hope of seeing them restored to the story.
In some ways, this feels a bit like Year of Jubilee stuff God told Israel to observe every 50 years.
Takeaway
Be advised that only the earliest Mickey animations are public domain; his colorization, friends, and details added later are still protected. Furthermore: Mickey Mouse in particular still has a lot of trademark hooks which could render him unusable anyway. My take is that Mickey Mouse has belonged in the public domain for a long time and that trademark ought not smother his use outside brand recognition. I expect legal fireworks in the coming years whose fallout will set precedent for generations to come.
Final Question
Imagine if I were to build a business empire strongly associated with the 500 year old Mona Lisa by Da Vinchi and I became so successful and diversified you’d need to live as a hermit on Mars to get away from me – and even then you would see Mona Lisa branded equipment when shopping for homesteading supplies. Should I be able to claim copyright infringement on someone selling posters of the original painting?
I look forward to debating answers –especially from an opposing viewpoint– in the comments below or on my Socials!