Exposed: Disney's repurchase of Oswald the Rabbit a sham

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88fingers

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I'm a big Disney fan, but I also believe in the rule of law and this has bothered me ever since the media giddily reported that Disney had regained the rights to Oswald the Rabbit in a "swamp" for ABC's Al Michaels contract.

The copyright to Oswald the Lucky Rabbit was not traded for sportscaster Al Michaels in 2006 BECAUSE there was no copyright. The whole thing was a strange and disturbing scam perpetrated on a media and public that does not (and should not be expected to) understand the complicated nuances of the history of intellectual property law, all to cover up one inconvenient fact: Oswald has not been protected by copyright since January 1, 1956.

I'm glad Disney wants to release Oswald toons again, though the latest news of Oswald as a villain in the Epic video game leaves me nonplussed. That aside. I do not think powerful media corporations, Disney or any others, should be able to “will” a copyright into existence simply because the issue is confusing in order to diminish the already anemic public domain, which is why I wanted to explain the issue a bit here. With so much done to destroy the public domain, this is the last thing we need as a precedent. I am happy to have honest arguments about whether copyright protection should continually be extended or not, but I am very distressed to see conscious trickery about what is under copyright or not.

The history will no doubt be familiar to some of you, but the legal details will not. The first Oswald film produced by Disney and Ub Iwerks was made in spring of 1927 and titled “Poor Papa.” Charles Mintz, their distributor in New York, screened it and found the rabbit fat and sloppy and decided to shelve it. The film was not released at that point and not yet copyrighted. So Disney and Iwerks redesigned Oswald and put him into another film called “Trolley Troubles.” We know the film shipped out of the Disney-Iwerks studio on May 1, 1927 to Mintz who liked it better. “Trolley Troubles” officially debuted on July 4 at the Criterion Theatre in Los Angeles, then appeared in New York City at the Roxy Theatre on July 15, then released widely on September 5, 1927.

“Trolley Troubles” was appropriately copyrighted at the point of this initial release (copyright #L24088). At the time (before changes in the 1960s and 1970s to the copyright law) copyright lasted 28 years and then had to be renewed or would expire. Since “Trolley Troubles” first debuted in 1927, Universal had a brief window of opportunity circa 1955 in which to renew the copyright. Specifically, they had one year leading up to June 9, 1955 to do it, or the film would fall into the public domain on January 1 of the following year. "Poor Papa" was not copyrighted until May 22, 1928 and not released until June 11, 1928, almost a year after "Trolley Troubles" (in the interval many other Oswald films were made and released). Important to remember that all of this is under the 1909 copyright law, which has nothing to do with the date of production or creation (which do matter under our modern copyright law), but instead have to do with time of release/publication to the public.

The copyright of characters is not an explicit part of the copyright law, but through case law it is well established that copyright obtains upon the character’s first copyrighted appearance—in this case, Oswald’s first film to be released and copyrighted, both of which are “Trolley Troubles.” If the first appearance of a character is not under copyright, no later copyrighted appearance can put the genie back in the bottle. This is undisputed in copyright law. The alternative would be nonsensical, one could perpetually point to a character's later appearance that is under copyright, whether a month after a first appearance or a century later, to claim copyright on a public domain character (otherwise I could make, say, a Yellow Kid or Gertie the Dinosaur cartoon or a new Sherlock Holmes novel today, copyright it, and then claim the character as being removed from the public domain and under copyright again). One of the things copyright law has been consistent about through many other changes is that once a property is in the public domain, it cannot be recovered as a protected property.

The records show that all of the 1928 Oswald films had been appropriately renewed for copyright in the mid-1950s. But, according to the original and consolidated government copyright records, none of the 1927 films were submitted by Universal for copyright renewal. Here is the most important part: there is seemingly no record of “Trolley Troubles” ever having been renewed. That means Oswald officially and permanently entered the public domain on January 1, 1956. That means this showboating about getting the rights to Oswald back fifty years later was silly and, worse, disingenuous. Or, at best, it was ignorant and misinformed.

The only possible counterargument from a Disney perspective, a seemingly weak one at that, would be to point to the valid copyright on “Poor Papa,” which some will recall was the first attempt at an Oswald cartoon by the Disney folks that was nixed by their distributor before being released. The copyright to “Poor Papa” was properly renewed in 1956. But the film was not originally released until long after “Trolley Troubles.” We don't have to dig into that. We need only look at their original copyright dates – “Trolley Troubles” was registered June 9, 1927, and “Poor Papa” on May 22, 1928. It simply does not matter under the relevant copyright regime that “Poor Papa” was produced earlier (whereas this would matter very much under our modern copyright laws, where copyright protection accrues upon creation of a work). Even if Disney could argue that “Poor Papa” was “released” first because it was screened for one person—Mintz—this wouldn't matter since it was not yet copyrighted at the time. And there is no argument that “Poor Papa” was released to the public first. (Look even at the “official” Disney histories WALT DISNEY - AN AMERICAN ORIGINAL by Bob Thomas, 1994, and DISNEY A TO Z - THE OFFICIAL ENCYCLOPEDIA, by Dave Smith, 1996. Dave Smith is the current head of Disney archives. Both confirm that "Trolley Troubles" was the "first of the [Oswald] cartoons to be released" (Thomas) and "the first released" (Smith), widely distributed September 5, 1927).

Universal in the 1950s likely had little concept of the value of character ownership in an era before television and other secondary markets. Indeed, it was not only “Trolley Troubles” and “Oh, Teacher” (originally copyrighted July 20, 1927) that were ignored for renewal, but these other Oswald cartoons were never renewed (original copyright dates listed in parentheses): “Great Guns” ( September 15, 1927) “The Mechanical Cow” ( September 10, 1927), “The Ocean Hop” ( Sept 8, 1927), “The Banker’s Daughter” ( September 15, 1927), “Rickey Gin” ( October 19, 1927), and “Empty Socks” ( November 23, 1927). Note that five of these films were part of the “deal” so excitedly reported in the press to transfer Oswald's rights from Universal to Disney in 2006, except (minor point!) that since they were never renewed and they are firmly in the public domain since the fifties those five film cannot be the subject of anyrights deal except for physical possession of the footage. The bottom line is this: today by law anyone is allowed to use Oswald the Rabbit's image, to market toys and games, to make new films, cartoons, parodies (even outside of fair use). I wish Disney would admit this, and for a change throw a bone out to the public domain. They would still own the rare, physical and fragile films they got back from Universal (and presumably invested in restoring, which is good for everyone). On a related note, I find Disney's rush to plant their flag back into Oswald and to merchandise Oswald interesting because they may be hoping to strengthen his trademark, knowing full well there is zero claim to a copyright.

(By the way, all copyright dates and renewal dates above were checked in the Catalog of Copyright Entries from those years. The only argument I could conceive of by Disney that would make this information wrong is that Universal renewed it and the renewal was left out of the CCE. I've never heard of an example of that.)

What would Disney's official response to this information be? I don't know. I know I'm not the only one, by any means, to have noticed this problem in the Oswald narrative. I know of people in the animation and law communities who are aware of this and, as far as I know, have remained silent.

None of the above regarding Universal's failure to renew are surprising, by the way. As some of you may know, anything first released before Jan 1, 1923 is automatically public domain, no further questions asked. (Interestingly, the fact has not led to much public use of a character even as well known as Felix the Cat, in part because people get so easily confused about what's in the public domain... certainly the "official" Felix site doesn't mention we're all free to use him as a character). Now, a film released between 1923 and 1963 was given a copyright term of 28 years. This meant one had to renew the copyright in the 28th year after its release—you could not do it sooner and you could not do it later than the 28th year after its release. If “Trolley Troubles” had been properly renewed, then it would absolutely still be under copyright today. But the estimate is that only about 15% of material was properly renewed in that time period roughly in the early to mid fifties. Some major films were not renewed and for the simple reason that film companies were not on top of this, not having consciousness of burgeoning recycled markets or foresight that those markets would develop. Films now in the public domain for the simple reason of non-renewal include some as prominent as the 1960 Roger Corman version of Little Shop of Horrors, which was supposed to be renewed in 1988 and was not (if it had been, it would be protected until 2055!), and Chaplin's Gold Rush. Many broad categories of films tended to be blindly overlooked for renewal, including early westerns and B-movies. Also cartoon shorts. Especially if, by the years in which a film required renewal, a character was completely defunct, as was the case with Oswald, who by 1955 was more or less a nonentity.

By contrast, Walt Disney made sure to renew “Steamboat Willie” and “Plane Crazy” around the same time. He knew that if he neglected this Mickey would join the public domain. So why has no one in the media that cheerily covered the Oswald story (“Oswald comes home!”) noticed any of this?

I contacted two different animation historians, one involved with the Oswald re-released DVD. Their response? They blatantly said they don't care about the legitimacy of the copyright, and that Disney could take care of Oswald better than the public. One pointed out the misuse of cartoon characters whenever the public gets a chance, like the Calvin and Hobbes obscene black market merchandise. Maybe that's true. But that's not the point. Corporations and animation historians do not get to decide that the public should not have the ability to use the public domain. Not in my opinion, not by law.

I tried contacting the media when they had their silly articles about the Al Michaels-Oswald "swap" but each said they weren't lawyers and weren't able to evaluate it. Good journalism.

I will anticipate one response: is it that important? No, it's not the end of the world. But the public domain has been crucial to artistic development over the years... including for the many public domain properties used by Disney like, say, Snow White and the Seven Dwarves.
 

Shift

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Woah, that's something I never really thought of. So someone could, let's say, make a new Oswald cartoon, and when Disney tries to sue them, that someone could theoretically win?
 

88fingers

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Theoretically. The problem is fighting a corporation like Disney. They could bankrupt a litigant just by drawing out the logistical process of a suit, before it ever reached any of the substance. In the court system, you could be right but not have the resources to ever get far enough to prove it.

Most animation historians and journalists are also in Disney's pocket one way or the other--for instance, many are used by Disney for commentary on their DVDs. They'd also depend on Disney for access to archives. I know someone else contacted Disney archives about the Oswald issue and they shut down the conversation immediately.

One of the animation historians I contacted about this made the argument that Oswald wasn't much of a character anyway, so what did it matter. Again, my answer would be it's not for any corporation to decide what belongs in the public domain and what doesn't.
 

AdamYJ

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A congresswoman recently said, "Let's face it, copyright extension these days is 'limited' to the life of Mickey Mouse." I think Disney gets away with pretty much whatever they want, and who's going to take them on over Oswald?
The funny thing about the whole Mickey Mouse copyright extension thing is that Disney's big-time lawyers seemed to confuse copyright with trademark. You copyright a story. You trademark a character. Copyrights run out after a certain number of years. Trademark exists as long as you actively use a character. I doubt anyone really wanted to steal the "story" of "Steamboat Willie". :p
 

88fingers

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Who is it for to decide 88Fingers?

Should The Simpsons be public domain?
It's actually in the Constitution, VileOne, that copyright protection runs for a "limited" time. Eventually, yes, The Simpsons (though not for a long time) and anything else will be in public domain. The public domain is a strange but important legal category. It's not a positive but a negative category: in other words, something is not stamped "public domain," rather copyright at some point is over and then something is in the public domain by default.

Why is public domain important? Many works of art in animation and out of it rely upon access to the public domain. I mentioned Disney's first ever feature animated film, Snow White and the Seven Dwarves, was possible because the subject material was public domain. But don't stop there, here are some others Disney made important use of to build their incredible film empire and change the world of animation: Pinocchio, Cinderella, Jungle Book, Alice in Wonderland, Little Mermaid, Aladdin, Beauty and the Beast, the Hunchback of Notre Dame, and the upcoming Princess and the Frog--to name a few. In literature, groundbreaking novels like James Joyce's Ulysses and plays like West Side Story (which retells Romeo and Juliet) exist in part because of their use of the artists' access to the public domain.

Disney and other corporations have again and again lobbied for copyright protection to be extended. Mickey Mouse would have fallen into the public domain a few years ago, except the copyright extenstion act--called the Mickey Mouse Act by some--was rammed through the Congress. At the moment, any work of art, literature and music created before 1923 is in the public domain. But post 1923 works are now protected for a very long time going forward. The idea of copyright protection was an important one--to give a creator control and income over creative works. But once you're talking about something created in teh 1920s protected in 2010, you're obviously just enriching some corporation or family estate--and arguably depriving today's artistic minds from redeploying those creations in the way Disney did to build themselves into the giant they are today.

But I'm not arguing about Disney's right to get laws changed. I might not agree with it because I think the vitality of the public domain is important to all artistic creation. Many legal scholars believe it is unconstitutional and makes a mockery of the "limited times" clause related to intellectual property. However, it is what it is.

What I am pointing out is that what they've done with Oswald the Rabbit is a whole different ballgame. Mickey Mouse was prevented from falling into the public domain. Oswald *is* in in the public domain. Disney deliberately decide to dupe the public about this and essentially cover it up. That I think is below them, or should be. As we discussed, they know they could stomp on anyone who tried to fight them (to see how well they treat copyright claims, see their lawsuits with the estate of A. A. Milne/Winnie the Pooh). The fact is, it should be exposed in the media. Not because Oswald is the most important artistic creation ever, but because this kind of assault-by-trickery on the public domain is new and a horrible precendent.

The irony? With Oswald in the public domain, Disney could have used him as much as they wanted to and would have given the world a good example of public domain creation. Instead, they give an example of corporate greed.
 

88fingers

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The funny thing about the whole Mickey Mouse copyright extension thing is that Disney's big-time lawyers seemed to confuse copyright with trademark. You copyright a story. You trademark a character. Copyrights run out after a certain number of years. Trademark exists as long as you actively use a character. I doubt anyone really wanted to steal the "story" of "Steamboat Willie". :p
This is a different issue (=a whole other can of worms), but you're right Adam, Disney and other corporations owning cartoon characters have double protection for certain characters because while copyright applies to a literary or artistic creation, trademark applies to a visual corporate logo--like Mickey Mouse or Bugs Bunny. Trademark protection never lapses as long as its in use, but it also doesn't prevent public domain usage of a character. When Disney thought Mickey Mouse was going into the public domain in the mid-late 1990s, do you remember what they did? They started adding Mickey Mouse images from all different eras--the 1928 Mickey, the 1932 Mickey, the 1950s Mickey, etc.--to their toy lines, their logos, their stationery, etc. This was to ensure trademark protection so they could then assert that over any (potential) public domain usage of the character. It never got that far because the copyright extension was passed, but it's another example of Disney's schemes to get around the public domain.

At least that's within the law, though. What bothers me so much about the ongoing Oswald claims is it's pure cynical trickery and quasi-fraud on the public commons, through and through.
 

88fingers

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I think the burning question this controversy raises in most peoples mind is... "Who the heck is Oswald?"
Since Oswald was one of the first important Disney characters, I think many people on this board know exactly who he is. Without Oswald, there may have been no Mickey and without Mickey... well, we're all on the Disney board, so he does matter.

A strange footnote to history: when Lee Harvey Oswald was in the army, his nickname was Oswald the Rabbit, after the cartoon character. Supposedly, this really bothered him. Could this have led him to go off the deep end? Unlikely, but a strange part of the rabbit's history, at least.
 

Ed Liu

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It's actually in the Constitution, VileOne, that copyright protection runs for a "limited" time.
No it isn't. There is no mention of the word "copyright" anywhere in the plain text of the United States Constitution, and nothing in there that I can see which would seem to apply to intellectual property rights much beyond the eminent domain clauses in the Fifth Amendment of the Bill of Rights, but that would only apply if the government felt a strong public need to take Oswald the Lucky Rabbit.

I haven't got the time to actually investigate the rest of your claims about copyright law and how it applies to Oswald, but you may want to double-check some of your facts. You're also relying on rulings from the 1909 copyright law, which I'm fairly sure have been amended since then.
 

88fingers

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Ed, it is called the Copyright Clause of the Constitution, and this applies to copyright and patent.

http://en.wikipedia.org/wiki/Copyright_Clause

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The specific meaning of "limited times" is determined by acts passed in Congress. What we can be sure it doesn't mean is "unlimited times."

I'm an intellectual property lawyer, so I don't claim to know everything about everything, but I do know about this.

And, yes, the older copyright regime did apply when Oswald the Rabbit entered the public domain. That is what matters. The 1909 laws were replaced in 1976, but by then Oswald and many other film properties were in the public domain. Once something enters the public domain it cannot be re-copyrighted (otherwise, Disney could have a copyright on the characters of Beauty and the Beast, for example, or other fairy tale characters). That's simply how the laws work for intellectual property, whether we like it or not.
 
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88fingers

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government felt a strong public need to take Oswald the Lucky Rabbit.
Also, Ed, please note that the public domain does not mean that the government "takes" or controls a work. This is very important to correct from your post. The public domain belongs to the public. The government, in fact, cannot own a copyright. Please consider taking a moment to read a bit about the public domain, even just on wikipedia, it's a very important category to understand for Disney and animation history.
 

AdamYJ

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This is a different issue (=a whole other can of worms), but you're right Adam, Disney and other corporations owning cartoon characters have double protection for certain characters because while copyright applies to a literary or artistic creation, trademark applies to a visual corporate logo--like Mickey Mouse or Bugs Bunny. Trademark protection never lapses as long as its in use, but it also doesn't prevent public domain usage of a character. When Disney thought Mickey Mouse was going into the public domain in the mid-late 1990s, do you remember what they did? They started adding Mickey Mouse images from all different eras--the 1928 Mickey, the 1932 Mickey, the 1950s Mickey, etc.--to their toy lines, their logos, their stationery, etc. This was to ensure trademark protection so they could then assert that over any (potential) public domain usage of the character. It never got that far because the copyright extension was passed, but it's another example of Disney's schemes to get around the public domain.

At least that's within the law, though. What bothers me so much about the ongoing Oswald claims is it's pure cynical trickery and quasi-fraud on the public commons, through and through.
Um . . . yeah.

Well, I was just looking for the humor in all of this. I understand you're being serious and angry over how Disney has bent the law. However, I'm not really looking for a reason to be angry at Disney. It's easy enough with little effort.
 

88fingers

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I did get the joke, Adam, and it's true what Alegea jokes about too, poor Oswald doesn't get much attention these days--oddly, this "deal" for his rights to go to Disney is what got him the attention he now has, for better or worse.
 

EinBebop

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I did get the joke, Adam, and it's true what Alegea jokes about too, poor Oswald doesn't get much attention these days--oddly, this "deal" for his rights to go to Disney is what got him the attention he now has, for better or worse.
Well, he's also going to be the featured antagonist in the upcoming Epic Mickey game, which they seem to be hoping will reinvent the whole Mickey franchise... can only be good for Oswald if it succeeds.
 

88fingers

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can only be good for Oswald if it succeeds.
I am happy to see Oswald around again (I'm not sure I like him as a villain, I'd rather see Pete the villain, but I understand the shaking-things-up nature of the choice). But Disney could have used him all they'd want without claiming he's not in the public domain. A good example is Sherlock Holmes--the character is in the public domain, but that doesn't mean the estate doesn't do "authorized" deals. The fact that a certain novel, for example, is authorized by the Arthur Conan Doyle estate has a monetary value and a marketplace value. At the same time, the creative commons is able to explore new itinerations of Sherlock Holmes without being controlled by their preferences. The public domain does not inherently take away profits from a corporate entity that formerly controlled an aristic work.
 

TheVileOne

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It's actually in the Constitution, VileOne, that copyright protection runs for a "limited" time. Eventually, yes, The Simpsons (though not for a long time) and anything else will be in public domain. The public domain is a strange but important legal category. It's not a positive but a negative category: in other words, something is not stamped "public domain," rather copyright at some point is over and then something is in the public domain by default.
What I mean is, should the Simpsons be in the public domain right now?
 

88fingers

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What I mean is, should the Simpsons be in the public domain right now?
No. The current copyright law is that intellectual property (including animated characters and the cartoons they appear in) last for the life of the creator plus 70 years afterward, while works registered under corporate ownership are 120 years after creation. So the Simpsons are fully and correctly under copyright.

There are many who think copyright terms are now too long--I'm one of them--but almost everyone agrees copyright should last for the lifetime of a creator and some time after that. At a certain point, though, the constitutional mandate for the protection to be for "limited times" becomes pretty meaningless if it keeps being extended.

You no longer have to renew a copyright and in many cases do not even have to register a copyright, although it helps in the legal process (should there ever be an infringement suit) to do so.

Back when Oswald and many other film properties fell into the public domain, as I explained above, the law did require renewal and many companies failed to renew the copyright.
 

TheVileOne

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No. The current copyright law is that intellectual property (including animated characters and the cartoons they appear in) last for the life of the creator plus 70 years afterward, while works registered under corporate ownership are 120 years after creation. So the Simpsons are fully and correctly under copyright.

There are many who think copyright terms are now too long--I'm one of them--but almost everyone agrees copyright should last for the lifetime of a creator and some time after that. At a certain point, though, the constitutional mandate for the protection to be for "limited times" becomes pretty meaningless if it keeps being extended.

You no longer have to renew a copyright and in many cases do not even have to register a copyright, although it helps in the legal process (should there ever be an infringement suit) to do so.

Back when Oswald and many other film properties fell into the public domain, as I explained above, the law did require renewal and many companies failed to renew the copyright.
If this is about art and public domain art inspiring more artists, why should people even have to wait until the creators' passing for an intellectual property to become publically owned?
 

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