18
Aug/02

About Three Conundrums After Eldred


Here is the text of Lawrence Lessig’s recent speech on copyright and patent terms.  I hadn’t known that Mickey Mouse’s first animated film “Steamboat Willie” was a parody of a Buster Keaton film of the time, ‘Steamboat Bill.’

Regardless of how Eldred turns out, at some point the valuable properties of the 20th Centruy will fall into the public domain (as has already happened to Sherlock Holmes and Tarzan).  However the property owners will have maintained trademark rights in aspects of these properties and trademarks can be renewed indefinitely as long as you use them.  As more  properties created during the birth of mass media in the early 20th century fall into the public domain, we will see an accelaration in the development of the jurisprudence of the interplay between use of public domain material and trademark (the owners of properties such as Peter Rabbit and Tarzan have been litigating these issues already).

One possible argument could go like this: “Yes your honor, while this illustration of  Winnie the Pooh is in the public domain as a copyright, we have been using it as a trademark for 20 years on our ‘Classic Pooh’ line of towels, and this survey shows that 75% of all respondents who see a product bearing this illustration of Pooh on a towel, believe that it originates with us.”

That’s an interesting case.

 

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