Last week we were talking about the issue of copyright morphing into trademark. Well, how about public domain morphing into copyright, and then trademark?
Well, garsh, kids, call me Goofy but — who is the “true Snow White“? This website wants the world to know she’s not something who was invented by that rat Walt Disney but rather by that charming Teutonic duo, the Brothers Grimm:
Here’s the story, according to Harald Walter Azmann, the man behind The True Snow White — a book, available as translated from the German (it’s not exactly clear from the website, actually, that there’s a book in here) and upcoming film (I think?).
Azmann describes this as the authentic, old-school, alternative and very un-Disney Snow White, and is unsurprisingly getting static from Disney on the IP front. Here’s the core of his plea to us Prince Charmings (or is it dwarves?):
In today’s global society, the world keeps moving closer together while unbridled mega corporations still seem to think they own it all. And in a way we have gotten used to them. But who would have expected a legendary benefactor of universal human values like Disney to engage in the sort of patently unfair business practices we have seen over the years?
Consider, for example, Disney’s relentless activities concerning works in the public domain, that marvelous treasure trove of the collective human experience. Previously, fifty years after the death of its author, an original work would become a resource available for anyone who wished to adapt, draw on or build upon it. It’s a brilliant system that opens up the great works of humanity to the next generation of artists and audiences.
Yet despite having been one of its greatest beneficiaries and generating tremendous profits since the early 1920s, Disney seeks to keep its own creations from entering the public domain for as long as possible, successfully lobbying U.S. Congress in the 1990s to extend the term of copyright to the life of the author plus 70 years, a campaign that resulted in the 1998 Copyright Term Extension Act (CTEA), or “Mickey Mouse Protection Act”.
And as if The Walt Disney Company’s astonishing ability to influence U.S. and even international legislation were not enough, its ongoing attempts to turn public domain characters into Disney property result in nothing less than Disney’s exclusive right to use them.
Okay, well, there’s his plea. It’s not as if the Wicked Stepmother is poisoning all that many apples out there — lookie here, just a little Googling and I found this — a new movie focusing on the grimmer aspect of our ivory-toned heroine:
The Brothers Grimm: Snow White is more like a dark twist on the fairy tale. The new version will take an “edgy” and comedic look at the original Brothers Grimm story. Brett Ratner promises a departure from the Disney version of the film. This is not your grandfather’s Snow White. His dwarves were miners, and here they are robbers. There is also a dragon that was in the original folk tale… its edgy and there is more comedy. The original, made for its time, was soft compared to what this is going to be.
But Mr. Azmann’s point is well taken, and a topic we like to take in around here. Perhaps, some day, his prince will come.
(Today on Twitter) — Danny Silverman: Trademark is soooo the new copyright. @RonColeman: Who says you can extend copyright in a literary character through trademark? @truesnowwhite: Let alone morph a popular Public Domain character like Snow White through copyright into trademark. Unlike other forms of intellectual property like patents and copyrights, a registered trademark can theoretically last forever. That’s why Disney wants a Snow White trademark. They know the law considers a trademark to be a form of property. A Snow White trademark would confer a bundle of exclusive rights upon Disney, including exclusive use of that mark. Once Disney is granted a Snow White trademark, they could start legal proceedings to prevent ANY unauthorized use. And here we are talking about a Public Domain character Disney never owned in the first place! WAKE UP WORLD! “Can you stand on your head?” (Cheshire Cat) “What do you want me to do, dress in drag and do the hula?” (Timon) @HaraldWAzmann: Just so you know: I watch Disney and Pixar movies with my children all the time; well, the real good ones. And there are quite a few. PS: But Monsters, Inc. I’ll even watch alone if I have to. =) @truesnowwhite: Disney has every reason to be confident rather than fearing creative competition. What an evil Queen approach! And once Disney “owns” Snow White, what about the other major Hollywood productions currently underway? Will Julia Roberts, Armie Hammer, Charlize Theron, Kristen Stewart et al do a job no one will ever see? What’s your view @RonColeman?
1. There is a danger for Disney here. If the Grimm brothers tale came first and they adapted it to the screen (I think that is the facts), then Snow White the movie is a derivative work. Which is fine, except you have to say that on the copyright application. You can invalidate a copyright on that basis.
2. Disney might have a copyright and even a trademark in their drawings of Snow White, but I am dubious whether the character (without the Disney-fied drawings) functions as a mark.
3, As I said in another post, trademark infringement requires confusion. If you have a strong enough disclaimer, you can get away with using a mark. If they entitle the movie “The Brothers Grimm Snow White” with a tag line “It’s not your father’s Disney version,” then TM infringement is that much harder.
4. Look at the recent Betty Boop decision out of the Ninth Circuit. It revives an old idea that where you have a copyright or patent, you cannot then convert it to a trademark upon expiration. That is dictum in a famous patent opinion by Justice Brandeis (which, IIRC, deals with a breakfast cereal). Good to see this notion making a comeback.
Tal, yes, thinking into a bit further — including by virtue of a chat with Harald — I agree with all four of your points. I might flesh out in (2) that the character-alone issue aside (and Harald notes that you’ll usually see Snow White with the Seven Dwarfs), there doesn’t seem to be any bona fide claim by Disney in the word mark SNOW WHITE.
The phrase “Snow White†is not used solely to name the fictional character created by the Brothers Grimm. Snow is white and so the phrase can reasonably refer to white snow – and all creative, real world variations on that theme. Which is why the phrase is used as a mark by many folks to brand many different products. Some are federally registered [for gypsum, rice, flour, cheese, sugar].
But when the phrase is used to name the fictional character then, I think, the phrase MERGES [as “merge†is understood under copyright law] with that character – and because that character is within copyright’s public domain so is the name.
So when Disney claims trademark rights in SNOW WHITE to brand “Production, presentation, distribution, and rental of motion picture films†the scope of those rights is limited to brand those ACTIVITIES only. Those trademark rights cannot prevent, for example, Smith Productions, Inc. from producing, presenting, distributing, or renting a movie called “Snow White†or a movie containing a non-Disney created version of the Snow White character. Those movies would be PRODUCTS that copyright law freely permits to be made that result from Smith Production’s film making activities. I think Disney’s trademark rights as described above would merely preclude others from naming a film production company “Snow White†or “Snow White Productions†or something confusingly similar.
Is this splitting hairs? Yup. Will Disney likely assert the SNOW WHITE trademark rights described above to try to stop others from producing Snow White movies? Probably.
For those of you who are interested, here is a link to our observations filed with the European Trademark Office on April 05, 2011 regarding Disney’s notice of opposition to the word mark “The True Snow White”. This has now become an official document for everyone to examine and evaluate. Quote and distribute freely http://bit.ly/e5nWqD
Just a few points: “Neither the character nor the original Snow White story is their creation. A fair Snow White trademark, in whatever form, should sufficiently protect Disney’s creative work and interpretation, but it must not keep any future Snow White versions from competing with Disney’s extremely successful but outdated 1937 animated feature titled ‘Snow White and the Seven Dwarfs’. (…)
In short: Blatantly taking advantage of what Danny Silverman has aptly described as ‘Trademark is soooo the new copyright’, over the years, The Walt Disney Company has been stealthily trying to morph a popular character like Snow White from public domain through copyright into trademark.”
Also, I wish to thank everyone here and in particular Ron Coleman for your time and attention to this matter. Needless to say, we would appreciate your continued support. WHAT COULD YOU DO to help us expose a wider audience to Disney’s relentless and ridiculous claims on Snow White? Please take a look and add your comments here: http://thetruesnowwhite.wordpress.com/sign
From @truesnowwhite to @RonColeman. For your info at http://wendellhowe.blogspot.com/2011/04/two-most-radical-members-of-gottingen.html
»The Walt Disney Company currently has a trademark application pending with the US Patent and Trademark Office, for the name “Snow White.†Open letter to Disney http://thetruesnowwhite.wordpress.com/open-letter-to-disney
Snow White is an old German tale recorded by the Grimm Brothers in 1812. If they were alive today, would Disney Studios sue them for publishing the fairytale that Walt borrowed? And would these two members of the Gottingen Seven take it lying down?«
@Writersstandup What is it you want to expose? The book with the ‘real’ version? Or copyright issues?
@truesnowwhite Oh Ally, is that the best you could do? The answer is clear enough. Read again http://bit.ly/eV71kR Forget about the book.
TARSEM SINGH, director of Relativity Media’s film production starring Julia Roberts as the evil Queen, Lily Collins as Snow White, and Armie Hammer as the Prince: Snow White isn’t owned by anybody. http://t.co/KcrOM83
For the latest on The True Snow White’s return from the netherworld, please see http://t.co/1kWznbZ and add your comments, if you will.
I think it is the ethos in the US that anything can be copywritten or trade marked has wider implications world wide, it does cause a restriction creep on our greatest works of culture., it has a knock on effect that people need to be warned about. Schools would have to get permission and pay a large fee to put on plays which cover certain characters how many of our great actors caught the acting bug by being in a school play? How much money that would have been raised for good causes will be hindered because more and more stories and characters will be copywritten? The lawyers are going to make a fortune due to this. The Lawyers at Disney could have thought of it as a way of helping all lawyers increasing their work to fight the downturn.
Then it may not only be books, characters and stories, it could spread to be works of art that now people can reproduce for example the Dying Gaul from c.240 BCE sculpture for sale, how long before someone in the US decides to copy write that, the effect would not only be artistic because it could not be used as a teaching project for those studying art but it would effect employment as workshops would not be able to reproduce it for sale. What could be called ‘just a copywrite’ could have knock on effects that people don’t talk about.
The US courts have to be careful because they are trademarking and copywriting our European culture which belongs to we Europeans not America. America is not that popular amongst many in Europe if the mainstream European press pick up on this and run with it Disneys actions could have negative effects on the image of the US in Europe and especially the Mid East. The Butterfly Effect.
Even the Grimms didn’t invent Snow White. She’s a much older character who dates back at least a couple hundred years before they published their anthology. She comes from stories collected from oral tradition. The story the Grimms collected and published in their anthology is the most famous version, but it’s not the only one. I think it’s offensive that Disney wants to ‘own’ Snow White in any way (they’re also trying this on other fairy tales they’ve adapted)…fairy tales come from oral tradition passed on over hundreds of years (sometimes even thousands, as may be the case with Cinderella), and can’t be trademarked or copyright by anyone. Any court that would actually approve this one deserves to have their legal qualifications called into question!