Re: Some Thoughts on Copyright Term

On 11/24/98, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Fri, 20 Nov 1998, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > [T]he principal objective of putting Snow White in the public domain
> > is so that unauthorized sequels and remakes (and derivative works such
> > as books and games) CAN be made for the benefit of the public without
> > Disney's permission. Disney created the adjectival names and
> > corresponding traits of the Seven Dwarves. Anyone wishing to use Doc,
> > Happy, Grumpy, Sleepy, Bashful, Sneezy and Dopey today has to get
> > Disney's permission, period. I guarantee you that a diary told from
> > Sneezy's point of view would be considered to be infringing under U.S.
> > law.
>
> If one has a good idea, why not approach Disney for permission.
> They might even supply capital and help you market your idea
> better than anyone else.

First of all, ideas aren't protected by copyright. Disney isn't going to help you market an idea; if it's only an idea, and they like it, they'll simply take it. You can't even protect yourself by contract, because no studio will promise to pay for an idea in return for disclosure. But, assuming you simply used the word "idea" in a colloquial manner...

If you have created a new creative work ("expression") using prior material created by Disney: they might be willing to buy it from you, but they might not. If it is an infringing derivative work, you may not have any negotiating leverage. As Mark Lemley has pointed out, copyright has not yet adopted the equivalent of the doctrine of "blocking patents." Even if the court recognized that you could keep Disney from simply taking your derivative work, they might not want to buy it. This is particularly true if your work is incompatible with the "image" of these characters that Disney wants to present. Your creativity in making new works based in part upon older works by Disney is being stifled. Society is willing to accept that restriction for a limited time in order to encourage the creation of new works (hence copyright law), but why should we have to accept it indefinitely?

> If they say no, one's creativity will find some other means of
> expression just as one walks round the no trespassing postings.

This is the argument that "there are always alternatives" to using copyrighted expression. But why should an artist who wants to use Disney's expression have to resort to other alternatives? The justification that U.S. law is premised on is that it is necessary to allow Disney to recoup its investment. But once the term of copyright that Disney relied upon expires, why should we tolerate this restriction on artistic freedom?

At bottom, your argument is premised on a "natural rights" argument: Disney made it, so they should own it. But Disney borrowed from the public domain in making its own works. Your argument can be extended even further back in time: Why should Disney be able to plunder someone else's work (The Brothers Grimm) without asking permission or paying royalties?

I am reluctant to continue this debate for much longer, because it is obvious to me that we're not going to change each other's minds on this issue. But I am curious whether your believe there should be a public domain at all; and if so, where would you draw the line? Would you simply freeze the public domain as it is now, and never add to it at all?

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Nov 25 1998 - 19:42:25 GMT