Re: ELDRED

>>> dave[_at_]tech-esq.com 01/23/03 09:08AM >>>
With respect to merchandise and film characters, Disney may already enjoy a perpetual intellectual property right in the form of trademarks and related trade dress. While at some point in time, the public may be able to freely copy and use the underlying films, books etc, I am not so sure manufacturers will have an easy time reproducing, marketing, and distributing merchandise (even the underlying films and books) without running into trademark concerns.

>>Trademarks are perpetual, assuming the use continues. Many of
Disney's trademarks date well back to the twenties and thirties. Disney and other studios with well-known animation/film characters never rely solely on copyright to protect their portfolio. <<<<<

All quite correct; which is one of the reasons that some commentators believe that trademark law may be unconstitutional in some of its broader applications. Trademark law clearly is not unconstitutional as a general matter (its traditional purpose is to protect against consumer confusion, not to provide a financial incentive to creativity), but application of trademark law to prevent the distribution of previously copyrighted material that has entered the public domain might very well violate both the patent and copyright clause and the First Amendment.

The Supreme Court has granted cert. to review a case that raises the issue of whether the Lanham Act should be construed to require that credit be given when a derivative work is made from a work in the public domain. Dastar v. Twentieth Century Fox will be argued later this term and should be decided by June.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu Received on Fri Jan 24 2003 - 23:33:59 GMT