orangenius
Copyright

Gone with Infringement: Mickey Mouse Copyright Lives On

Fair Use

Yet again, a movie industry giant takes on the little guy and wins.   A recent lawsuit filed by Warner Bros. raises public domain issues within copyright provisions that could have some pretty interesting consequences for artists. On the other hand, the ruling also suggests that artists can potentially benefit from the court’s decision not to allow merchandise distributors to use copyrighted images in their products. Leo Valencia has made a living off selling merchandise from popular films like Gone With the Wind, The Wizard of Oz and Tom & Jerry, using images of popular characters that are about as integrated into the American vernacular as peanut butter and jelly sandwiches. Valencia’s t-shirts, coffee mugs, and other memorabilia were sold through several different channels. About 10 years ago, however, Warner Bros. decided that Valencia’s use of those images violated their copyright and intellectual property and filed a lawsuit against, citing just that. Warner Bros. stated that copyright infringement occurred when the publicity images were used on the products, including in three-dimensional objects, such as a statuette or action figure, or combined with other images or text to create a composite image. In his defense, Valencia claimed that he was merely lifting images from publicity campaigns launched by the studio to promote the respective films.

According to Valencia, his use of images that had already appeared in posters and lobby cards didn’t constitute a violation of copyright law, as those images were already in the public domain. After a lot of back and forth in court, a judge ultimately sided with Warner Bros. and forced Valencia to fork up more than $2.5 million to rectify his violation of Warner Bros. copyright. So, what does that ruling mean for artists? In order to find out, we’ll need to review copyright law and its duration, while analyzing whether Valencia’s use of the images constituted fair use.

Fair Use Images
Leo Valencia sold t-shirts, coffee mugs, and other memorabilia from Famous Movies like the Wizard of Oz.

Mickey Mouse Copyright Law and the Public Domain

Copyright law protects original works of authorship, fixed in a tangible medium, with at least a limited degree of creativity. For example, if I write a screenplay, I am automatically entitled to copyright protection for that work. These protections mean that no one can reproduce, distribute, make derivatives of, or sell copyrighted work, without express permission from the copyright owner. As a movie studio, Warner Bros. has certain copyright protections in their films, which they share with writers, actors, and directors alike. As such, they do have control over how elements of their films are used – from characters to storylines and scenery, anyone attempting to use or build upon a Warner Bros. film will need to seek permission from the studio first, or risk being exposed to a copyright lawsuit. Copyright protections do have some limitations, however – namely, time. Copyright protection doesn’t last forever, after all, and once it expires, works enter into the public domain. Which is exactly why big money players like Disney have spent a fortune lobbying for its extension time and again (more on that later).

At the outset of the creation of U.S. Copyright Law in 1790, copyright law protected the work for just 14 years from the date of creation, with the option to extend the term by another 14 years if the copyright holder was still alive (it’s worth noting that only a copyright holder can file for an extension of copyright duration). By 1831 it was changed to 28 years with a 14-year renewal and in 1909, copyright duration became 28 years with a 28-year renewal. Copyright duration law went on as so until the Copyright Act was reformed in 1976. In that new iteration, copyright protections were increased to the life of the author plus 50 years. Meaning that, copyright protection would extend over a work for an indefinitely long period of time. For works authored by corporations (i.e. Warner Bros. or Disney), the 1976 legislation also granted a retroactive extension for works published before the new system took effect. The maximum term for already-published works was lengthened from 56 years to 75 years, though anything published in 1922 or before was in the public domain. Anything after that would still be under copyright.

 

Mickey Mouse Copyright
Is copyright duration in the U.S. due to Mickey Mouse Copyright?

We call it Mickey Mouse copyright law because the beloved Disney character was a driving force behind the revision of copyright’s duration. Disney lobbied and led the revision of the law when its beloved Mickey Mouse character was due to enter the public domain. Interestingly enough, Disney was behind another revision in 1998, when the Sonny Bono Copyright Term Extension Act, which lengthens copyrights for works created on or after January 1, 1978 to “life of the author plus 70 years,” and extends copyrights for corporate works to 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first.

Let’s use Gone With The Wind as an example. Gone with the Wind was created in 1939, which means that in 1976, it was not protected by copyright law since the duration at the time was only 28 years. However, the film’s creators could have likely applied for the 28-year extension, which they likely did. And once the 1976 Act was passed, the film would have been grandfathered in if it was still currently protected by copyright law. Since the characters from Gone with the Wind are protected by copyright, it’s quite certain that Valencia’s use of them would be considered copyright infringement. But Valencia did have one card to play – he alleged that his use of the images would be considered fair use.

Fair Use Images: How Does it Work?

The only exception to this rule is the Fair Use doctrine, which allows you to use copyrighted work for certain purposes. The fair use doctrine is outlined by U.S. copyright laws, and the U.S. Copyright Office has even created a Fair Use Index of the overwhelming case law on the subject. Courts measure fair use by these four prongs:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted workcopyright.gov/fair-use/fair-

As we’ve outlined in our e-book, fair use comes into play in various scenarios in which a work may be excused from copyright infringement liability because the use of the copyrighted material can be considered fair use. Andy Warhol’s use of popular iconography, such as the Campell’s Soup can, for example, are considered fair use images because his work was transformative of the original intention with which the product was created. However, courts tend to be particularly strict on whether or not something can be considered a fair use image based on whether or not the work was used for commercial purposes. Generally speaking, the courts won’t allow someone to profit from someone else’s creative work product without ensuring that the original creator is adequately compensated. Valencia claimed that because the images had already been used for publicity material, that they should be considered fair use images and available to the public domain. That is simply not the case, as there is no basis in his argument to suggest that publicity images are considered fair use images under copyright law. As a result, the court agreed with Warner Bros. and awarded damages to the media giant.

What can artists learn from this lesson? On the one hand, the court’s decision to make Valencia pay up is good news for artists, who often find themselves being ripped off by product websites like Café Society and Etsy, who stand behind a fair use images doctrine to engage in these types of practices. But on the other hand, this decision is another victory for a media giant and a loss for the little guy – and since very rarely do artists have the funds required to institute the same type of lawsuit to defend their copyrights, it’s unlikely that this ruling will do much to change the landscape for artists.

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

2 Comments

Click here to post a comment

Your email address will not be published. Required fields are marked *

  • You write that Valencia “alleged that his use of the images would be considered fair use.” Where? I don’t see it in the 2011 Circuit Court decision, and I don’t see it in the new decision on damages. As far as I can tell, this is only a case about the public domain and has nothing to do with fair use.

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]