Friday, April 8, 2011

Hmmm, Perhaps Copyright Isn't Infinite After All - Feel Free to Draw Betty Boop!

We may have some sign of hope, in contrast to my last post about copyrights in the U.S., which was rather pessimistic and also rather popular, apparently - it's currently the seventh most-read post of all time on my blog.

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. Fleischer Studios has been co-licensing (with King Features) the property (along with Pudgy, Grampy, Binmbo and Ko-Ko the Clown) for several decades now.

The Fleischer Studio tried to sue Avela Inc. over its licensing of public domain Betty Boop poster images (for handbags and T-shirts). The 9th Circuit U.S. 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.”
Now, it's not entirely clear to me whether the Fleischer estate lost because the images in question are now in the public domain or because the estate failed to prove that they were the rightful copyright holders of the intellectual property in question.

Animation historian David Gerstein offers his analysis:

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.
So, a small glimmer of hope - Congress's copyright laws may be utterly idiotic, but at least the courts may refuse to offer copyright holders more protections than are specifically mandated by the law.

Well, I'll take what I can get for now, though I hope that there is a popular movement sometime that makes Congress come to its senses about copyright laws.

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