Popeye, the spinach loving sailor from Sweet Haven, should no longer find safe haven in copyright protection anymore—at least in Europe. With the death of Elzie Segar, Popeye’s creator, in 1938, Popeye’s days as a protected piece of art were numbered. Most European copyright laws extend legal protection for a work until 70 years after the creator’s death and with the end of 2008 came the end of Popeye’s supposed copyright status. Not so fast, claims King Features, Popeye’s current owner. While King Features concedes that Popeye’s copyright protection may have expired, it doesn’t mean that people should be expecting Popeye’s squinty mug everywhere. The company insists that it continues to “own” Popeye through trademark protection. And why not? European trademark law would provide King Features more time to collect royalties from merchandise featuring the iconic character and in a large market like Europe, much money is at stake.
While King Features’ tenuous claim remains in dispute, the greater controversy lies with the treatment of variable copyright expirations in the international community. Take U.S. copyright rules, for instance. Unlike the relatively straight forward approach to copyright in Europe, copyright law in the U.S. makes a distinction to the condition under which a work was created. Segar constructed the Popeye character while as a “work for hire” with the Hearst Syndicate. As a “work for hire,” the actual copyright transferred from Segar to his employer, which later sold the copyright to King Features. Because of this distinction, Popeye remains protected under copyright for another 25 years in the U.S. On the other hand, some places like Canada have placed Popeye in the public domain for more than two decades already!
The differing laws have created palpable tensions between innovators and copyright holders, which have worsened with the web. In terms of financial profits, it’s obvious why many copyright holders object: they are not entitled to royalties every time their work is used any longer. Manufacturers have one less cost to worry about for the same product and can even use the freed up funds to produce derivative works that could potentially bring in more money.
Yet, the value of the copyright provides something more besides monetary rewards. The right to all derivative works supplies an effective monopoly to the development and improvement of the product. In essence, it allows copyright owners to “tax” (there are very few notable exceptions where copyright owners ask only token amounts, if any, to use their work) those who want to build upon their handiwork. It deters creativity and experimentation because someone had to be certain that the resulting product would be more than worth the effort and cost of obtaining permission to use the piece. While there is fair use, it is not a right, but merely a legal defense that does not preclude the offending party from being sued.
The rationale behind copyright seems well-summarized in the U.S. Constitution, (Article I § 8) which is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” In line with such sentiments, the U.S. Congress enacted the first copyright law to protect works for 14 years with the chance of renewal for just 14 more years. After 14 or 28 years, everything would become a part of the public domain. Of course, back in 1790, the main copyrightable works were books, maps, and charts, but the emphasis was on limiting how long a copyright could exist. Since then, the practice has been veered towards increasing the number of years a work is copyrightable. In some ways, this doesn’t make much sense. With limited communication means to aid marketing and selling, not to mention fairly high cost investments towards producing a work in the past, it would have been reasonable to demand a longer copyright period in order to recuperate costs as well as reap in additional profits. Quite the opposite seems to occurring today where current technological developments occur so rapidly that designs become obsolete within months yet maintain copyright protection more than 10 times longer before the public can be free to use it without hassle. How long is too long? We’re now at the point where the demise of a copyright holder does not preclude him or her from retaining the monopoly over his or her work. Perhaps it’s a good time to relook at the intent of copyright protection: to safeguard intellectual property for a limited time in exchange for unlimited, free public use afterward.
For more details on the chart above, click here. Chart attributed to Tom W. Bell.
Edit note: My apologies to Professor L, I thought I had linked it earlier.
Nice chart? Did you create it? If not, where is it from?
Remember that the chart is CC BY-SA. I’d put the name of the author on your post.
I hit “send” too soon and didn’t get a chance to add my compliments on a very well-written post. You highlighted several of the most challenging problems in copyright law, which are raised by the Popeye case, including the conflict between copyright and trademark and the lack of harmonization among various countries’ copyright systems. Nice work.
Best,
JL
I would be very curious to see what would happen if we went back to 10, 20 or 30 year copyrights instead of >100 years. How do you think we can break the cycle of corruption and corporate fear that seems to drive copyrights longer and longer? As far as I can tell it is completely a lobbying problem, fueled by large media companies that push their own agenda through Congress.
In a class I took last semester on Capitalism and Its Critics, Gus Speth argued that campaign finance reform could lead to the advancement of the environment because politicians would be less beholden to corporate interests. Similarly, a major overhaul of campaign finance reform could result in a reduction of copyright duration. The Copyright Act of 1988 is often called the Mickey Mouse Protection Act because of the high number of Disney lobbyists paid to pressure senators and congressmen for enacting the bill. Considering the amount of money Disney spends on political campaign contributions– available at http://www.opensecrets.org/orgs/toprecips.php?id=D000000128–and the much higher amount given in total by all of the various entities that stand to benefit from longer a copyright duration, it is not surprising that legislators support copyright extension. Barack Obama has emphasized time in time again his commitment to making government more transparent, ethical and concerned with the interests of ordinary American people rather than big business; perhaps we can look forward to new campaign finance laws that will have positive implications for copyright law.
In the words Upton Sinclair, “It is difficult to get a man to understand something when his salary depends upon him not understanding.”
I wonder what it would be like if we could provide a one-time compensation for copyright holders after the expiration of a 10 or 20 year copyright and if someone demonstrated significant interest in using the work. Then, the work could be become a part of the public domain. The cynic in me realizes this would never work for lobbying and logistical reasons, but it’s worth a thought. Unfortunately, the lobbyist problem goes beyond copyright and the more people try to fight it, the more it flourishes (in particular, preemptive lobbying).
Or would a 5 year renewable warranty-like system, like Boyle mentions, work? Or 20 years (with a 100 year cap) like Landes and Posner? I kind of like that…
I kind of like that, so long as it’s not a 100 year cap! That’s almost as bad as it is now. I’m more bothered by the overall length rather than the process.
Maybe trademarks are the answer here. Most copyrighted works probably shouldn’t be protected for as long as they currently are, but there are some works that are so iconic that releasing them into the public domain might not be a great idea, either. The current copyright term is almost explicitly geared towards the protection of a few iconic works (like Mickey Mouse) at the expense of overprotecting more ordinary works.
Precisely because those few iconic works have come to be identified with their creators (think Mickey Mouse and Disney), however, it seems plausible that they (or aspects of them) would qualify for trademark protection. Though potentially perpetual, that protection is in many respects more limited than copyright protection. Most conceivable non-commercial uses of the marks would probably be permitted (essentially expanding the scope of fair-use), but the mark owner would retain commercial rights. Moreover, the vast majority of copyrighted works would not qualify for trademark protection in the first place. If we combined substantially shortened copyright terms with (perhaps expanded) trademark protection for very well-known copyrighted works, we might be able to accommodate those few outlying works that deserve longer protection without excluding the vast majority of works from the public domain for longer than necessary.
@Adi & Carolyn: Lessig in Free Culture actually writes about the most conservative possible renewal system; he proposed in 2003 that a $1 fee be required to renew a copyright at 50 years, and every 10 years thereafter (the discussion starts at page 256, if you’re interested). He got a representative to draft the bill; it made no changes to the existing system, except to allow 50-year-old works to pass into the public domain if they were not renewed. The idea was endorsed by all kinds of people (notably Steve Forbes, who wrote a major editorial about it).
Jack Valenti and the MPAA mobilized, and lobbied strongly against the bill. Their arguments were extremely weak, which led Lessig to the conclusion he presents in the book: that the industry’s concern isn’t about protecting their content. They were interested in stifling potential competition from the public domain; culture derived from public domain works would compete with culture derived from their copyrighted works. The industry exists because it’s a monopoly, and they’re afraid of anything that would diminish it.
I don’t necessarily agree with his conclusion (it’s a little extreme, though the evidence is interesting), but it’s an illustration of just how far the lobbyists are willing to go to defend their monopolies.