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lenny-1of2dads · 2 days
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It was the first time back home in a year. Jerry and Tony had got the idea we go check out the springs. Matt said he was cool with it. So Saturday morning we start the sixty mile ride. The four of us have been best friends since middle school. We fooled around in ninth grade then switched to girls. All still single at twenty, we were making excuses, like not enough girls, fear of rejection, and then Matt says I'm just gay.
I was driving and lost focus when I looked at him sitting next to me. Jerry and Tony lean forward from the back seat asking. What the hell, Seriously you do gay stuff in the Navy.
He explains: You could be on a ship for months at a time with fifty to hundred other guys that need it just as bad. Gay stuff happens. Over the next thirty minutes our best friend admits he is as gay as it gets. That is never going to change.
We arrive and head to our normal spot. We strip down to our underwear and all of us freeze in place as Matt is first to check the water out. He went from high school hot to hot male model. The three of us were looking at each other, look at Matt, drooling and freaking. While we all grew up some this was a transformation.
I was sitting on the side just watching when I yelled out Raise your hand if you want to do gay stuff. I then immediately raise my hand yelling...
I do, pick me. I stand jumping into the springs rushing over to Matt. Who is blushing at my announcement. I ask what are the chances we make out again like we did in ninth grade.
He smiled and replied I would love that.
The two of us go at for the first time over five years. This was the moment I know I am gay and always have been. We separate due to the hoots and hollers of our friends. Who were hugging each other inappropriately for two straight guys. They were closeted boyfriends all this time and no one had any idea.
That switch to females never happen. We all just went back in the closet. Jerry and Tony said they never looked at it like boyfriends, or gay. Best friends with benefits that was better when kept a secret. Before we left we all came out on the internet. We posted pictures of two gay couples, having fun. Then my little brother of all people blows up my phone.
Dad said Gay is when guys are into guys... He said you and Matt are in love. Dad said can see it the picture, the way you look at each other.
I thought for sure he would kick your butt out.
Hey, Can you ask Matt to help me score a date with his little sister for the school dance?
OMG mom is crying on the phone to grandma now. Grandma told mom she knew you were a fag along.
Should I stop saying that word because my brother is one?
Matt's sister said You were a seven maybe eight on facebook.
How can you be gay for five years and not do anything about it?
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1of2dads AI generated Art. Waterfall 3/27/24
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opencharacters · 3 months
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It looks like Mickey has something to say
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“If buying isn’t owning, piracy isn’t stealing”
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20 years ago, I got in a (friendly) public spat with Chris Anderson, who was then the editor in chief of Wired. I'd publicly noted my disappointment with glowing Wired reviews of DRM-encumbered digital devices, prompting Anderson to call me unrealistic for expecting the magazine to condemn gadgets for their DRM:
https://longtail.typepad.com/the_long_tail/2004/12/is_drm_evil.html
I replied in public, telling him that he'd misunderstood. This wasn't an issue of ideological purity – it was about good reviewing practice. Wired was telling readers to buy a product because it had features x, y and z, but at any time in the future, without warning, without recourse, the vendor could switch off any of those features:
https://memex.craphound.com/2004/12/29/cory-responds-to-wired-editor-on-drm/
I proposed that all Wired endorsements for DRM-encumbered products should come with this disclaimer:
WARNING: THIS DEVICE’S FEATURES ARE SUBJECT TO REVOCATION WITHOUT NOTICE, ACCORDING TO TERMS SET OUT IN SECRET NEGOTIATIONS. YOUR INVESTMENT IS CONTINGENT ON THE GOODWILL OF THE WORLD’S MOST PARANOID, TECHNOPHOBIC ENTERTAINMENT EXECS. THIS DEVICE AND DEVICES LIKE IT ARE TYPICALLY USED TO CHARGE YOU FOR THINGS YOU USED TO GET FOR FREE — BE SURE TO FACTOR IN THE PRICE OF BUYING ALL YOUR MEDIA OVER AND OVER AGAIN. AT NO TIME IN HISTORY HAS ANY ENTERTAINMENT COMPANY GOTTEN A SWEET DEAL LIKE THIS FROM THE ELECTRONICS PEOPLE, BUT THIS TIME THEY’RE GETTING A TOTAL WALK. HERE, PUT THIS IN YOUR MOUTH, IT’LL MUFFLE YOUR WHIMPERS.
Wired didn't take me up on this suggestion.
But I was right. The ability to change features, prices, and availability of things you've already paid for is a powerful temptation to corporations. Inkjet printers were always a sleazy business, but once these printers got directly connected to the internet, companies like HP started pushing out "security updates" that modified your printer to make it reject the third-party ink you'd paid for:
https://www.eff.org/deeplinks/2020/11/ink-stained-wretches-battle-soul-digital-freedom-taking-place-inside-your-printer
Now, this scam wouldn't work if you could just put things back the way they were before the "update," which is where the DRM comes in. A thicket of IP laws make reverse-engineering DRM-encumbered products into a felony. Combine always-on network access with indiscriminate criminalization of user modification, and the enshittification will follow, as surely as night follows day.
This is the root of all the right to repair shenanigans. Sure, companies withhold access to diagnostic codes and parts, but codes can be extracted and parts can be cloned. The real teeth in blocking repair comes from the law, not the tech. The company that makes McDonald's wildly unreliable McFlurry machines makes a fortune charging franchisees to fix these eternally broken appliances. When a third party threatened this racket by reverse-engineering the DRM that blocked independent repair, they got buried in legal threats:
https://pluralistic.net/2021/04/20/euthanize-rentier-enablers/#cold-war
Everybody loves this racket. In Poland, a team of security researchers at the OhMyHack conference just presented their teardown of the anti-repair features in NEWAG Impuls locomotives. NEWAG boobytrapped their trains to try and detect if they've been independently serviced, and to respond to any unauthorized repairs by bricking themselves:
https://mamot.fr/@[email protected]/111528162905209453
Poland is part of the EU, meaning that they are required to uphold the provisions of the 2001 EU Copyright Directive, including Article 6, which bans this kind of reverse-engineering. The researchers are planning to present their work again at the Chaos Communications Congress in Hamburg this month – Germany is also a party to the EUCD. The threat to researchers from presenting this work is real – but so is the threat to conferences that host them:
https://www.cnet.com/tech/services-and-software/researchers-face-legal-threats-over-sdmi-hack/
20 years ago, Chris Anderson told me that it was unrealistic to expect tech companies to refuse demands for DRM from the entertainment companies whose media they hoped to play. My argument – then and now – was that any tech company that sells you a gadget that can have its features revoked is defrauding you. You're paying for x, y and z – and if they are contractually required to remove x and y on demand, they are selling you something that you can't rely on, without making that clear to you.
But it's worse than that. When a tech company designs a device for remote, irreversible, nonconsensual downgrades, they invite both external and internal parties to demand those downgrades. Like Pavel Chekov says, a phaser on the bridge in Act I is going to go off by Act III. Selling a product that can be remotely, irreversibly, nonconsensually downgraded inevitably results in the worst person at the product-planning meeting proposing to do so. The fact that there are no penalties for doing so makes it impossible for the better people in that meeting to win the ensuing argument, leading to the moral injury of seeing a product you care about reduced to a pile of shit:
https://pluralistic.net/2023/11/25/moral-injury/#enshittification
But even if everyone at that table is a swell egg who wouldn't dream of enshittifying the product, the existence of a remote, irreversible, nonconsensual downgrade feature makes the product vulnerable to external actors who will demand that it be used. Back in 2022, Adobe informed its customers that it had lost its deal to include Pantone colors in Photoshop, Illustrator and other "software as a service" packages. As a result, users would now have to start paying a monthly fee to see their own, completed images. Fail to pay the fee and all the Pantone-coded pixels in your artwork would just show up as black:
https://pluralistic.net/2022/10/28/fade-to-black/#trust-the-process
Adobe blamed this on Pantone, and there was lots of speculation about what had happened. Had Pantone jacked up its price to Adobe, so Adobe passed the price on to its users in the hopes of embarrassing Pantone? Who knows? Who can know? That's the point: you invested in Photoshop, you spent money and time creating images with it, but you have no way to know whether or how you'll be able to access those images in the future. Those terms can change at any time, and if you don't like it, you can go fuck yourself.
These companies are all run by CEOs who got their MBAs at Darth Vader University, where the first lesson is "I have altered the deal, pray I don't alter it further." Adobe chose to design its software so it would be vulnerable to this kind of demand, and then its customers paid for that choice. Sure, Pantone are dicks, but this is Adobe's fault. They stuck a KICK ME sign to your back, and Pantone obliged.
This keeps happening and it's gonna keep happening. Last week, Playstation owners who'd bought (or "bought") Warner TV shows got messages telling them that Warner had walked away from its deal to sell videos through the Playstation store, and so all the videos they'd paid for were going to be deleted forever. They wouldn't even get refunds (to be clear, refunds would also be bullshit – when I was a bookseller, I didn't get to break into your house and steal the books I'd sold you, not even if I left some cash on your kitchen table).
Sure, Warner is an unbelievably shitty company run by the single most guillotineable executive in all of Southern California, the loathsome David Zaslav, who oversaw the merger of Warner with Discovery. Zaslav is the creep who figured out that he could make more money cancelling completed movies and TV shows and taking a tax writeoff than he stood to make by releasing them:
https://aftermath.site/there-is-no-piracy-without-ownership
Imagine putting years of your life into making a program – showing up on set at 5AM and leaving your kids to get their own breakfast, performing stunts that could maim or kill you, working 16-hour days during the acute phase of the covid pandemic and driving home in the night, only to have this absolute turd of a man delete the program before anyone could see it, forever, to get a minor tax advantage. Talk about moral injury!
But without Sony's complicity in designing a remote, irreversible, nonconsensual downgrade feature into the Playstation, Zaslav's war on art and creative workers would be limited to material that hadn't been released yet. Thanks to Sony's awful choices, David Zaslav can break into your house, steal your movies – and he doesn't even have to leave a twenty on your kitchen table.
The point here – the point I made 20 years ago to Chris Anderson – is that this is the foreseeable, inevitable result of designing devices for remote, irreversible, nonconsensual downgrades. Anyone who was paying attention should have figured that out in the GW Bush administration. Anyone who does this today? Absolute flaming garbage.
Sure, Zaslav deserves to be staked out over an anthill and slathered in high-fructose corn syrup. But save the next anthill for the Sony exec who shipped a product that would let Zaslav come into your home and rob you. That piece of shit knew what they were doing and they did it anyway. Fuck them. Sideways. With a brick.
Meanwhile, the studios keep making the case for stealing movies rather than paying for them. As Tyler James Hill wrote: "If buying isn't owning, piracy isn't stealing":
https://bsky.app/profile/tylerjameshill.bsky.social/post/3kflw2lvam42n
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If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
https://pluralistic.net/2023/12/08/playstationed/#tyler-james-hill
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Image: Alan Levine (modified) https://pxhere.com/en/photo/218986
CC BY 2.0 https://creativecommons.org/licenses/by/2.0/
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prokopetz · 3 months
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Mickey Mouse's entry into the public domain comes with significant caveats. While the Mickey Mouse who appears in Steamboat Willie (and other media published in 1928 or earlier) is free to use, there's established precedent that specific elements of a character which appear exclusively in later works which still fall under copyright may be protected, if sufficiently distinctive.
(This is the basis of, e.g., the infamous "Sherlock Holmes can't respect women" lawsuit: the Doyle estate, which at the time owned only a tiny handful of the latest-written stories, the others having already fallen into the public domain, argued that specific personality traits which Holmes exhibits only in those later stories are sufficiently distinctive as to be the valid subject of an infringement claim.)
With respect to various elements of Mickey's visual design, such as his red shorts and signature gloves, the matter is clear: just don't use those for another few years. However, there's another thing Mickey's public domain iterations don't exhibit: speech.
The present consensus among copyright scholars seems to be that "a character speaking" is not sufficiently distinctive as to qualify for protection, but the vocal characterisation with which Mickey Mouse is famously associated may so qualify. So, if you want to be scrupulously safe, you can have him talk, but not in that exact specific voice.
Which raises a fun question: what voice would you give him? Wrong answers only.
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mattpresents · 3 months
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galvanizedfriend · 7 months
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The US Copyright Office is opening a public comment period around AI
American friends! The US Copyright Office (which we know exerts huuuge influence in how these things are treated elsewhere) wants to hear opinions on copyright and AI.
"The US Copyright Office is opening a public comment period around AI and copyright issues beginning August 30th as the agency figures out how to approach the subject."
We can assume that the opposing side will definitely be using all of their lobbying power towards widespread AI use, so this is a very good chance to let them know your thoughts on AI and how art and creative content of all kinds should be protected.
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the-warlock-syndicate · 7 months
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Alright US mutuals, if you are interested in, morbidly fascinated by, or anxiously doomscrolling through AI news, including Stable Diffusion, Llama, ChatGPT or Dalle, you need to be aware of this.
The US Copyright Office has submitted a request for comment from the general public. Guidelines can be found on their site, but the gist of it is that they are taking citizen statements on what your views on AI are, and how the Copyright Office should address the admittedly thorny issues in rulings.
Be polite, be succinct, and be honest. They have a list of questions or suggestions, but in truth are looking to get as much data from the general public as possible. If you have links to papers or studies examining the economic impacts of AI, they want them. If you have anecdotal stories of losing commissions, they want them. If you have legal opinions, experience using these tools, or even a layman's perspective of how much human input is required for a piece of work to gain copyright, they want it.
The deadline is Oct 18th and can be submitted via the link in the article. While the regulatory apparatus of the US is largely under sway by corporate interests, this is still the actual, official time for you to directly tell the government what you think and what they should do. Comments can be submitted by individuals or on behalf of organizations. So if you are a small business, say a print shop, you can comment on behalf of the print shop as well.
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deebrisbyfish · 3 months
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I hadn't been PLANNING on doing anything in regards to the early Mickey Mouse cartoon "STEAMBOAT WILLIE" entering the public domain this past Monday until I went on Facebook. lol
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batboyblog · 3 months
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Copy Right and Public Domain in 2024
Happy 2024 all! its also Public Domain Day! a magical holiday here in America where things enter the public domain. Works published in the year 1928 (or 95 years ago!) have entered the public domain, which means they belong to us, all of us, the public!
Mickey's Back!
Yes! I'm sure you've heard, but Mickey Mouse (and Minnie Mouse too) is entering the Public Domain today. This has been news for a few years and indeed Disney's lobbying in the late 1990s is why our copy right term is SO long. So what exactly is now public domain?
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Most people know about Mickey's first appearance Steamboat Willie, but a second short film, Plane Crazy was also released in 1928 so will also be public domain. So what's public? well these two films first of all, you're allowed to play them, upload them to YouTube or whatever without paying Disney. In theory you'll be allowed to cut and sample them, have them playing in the background of your movie etc. Likewise in theory the image of Mickey and Minnie as they appear (thats important) in these films will be free to use as well as Mickey's character as he appears in these works will be free to use. Now Mickey's later and more famous appearance
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will still be protected. Famously the Conan Doyle Estate claimed that Sherlock Holmes couldn't be nice, smile, or not hate women in works because they still held the copyright on the short stories where he first did those things even though 90% of Sherlock Holmes stories were public domain. It's very likely Disney will assert similar claims over Mickey, claiming much of his personality first appeared in works still copyrighted.
Finally there's copyright vs trademark. Copyright is total ownership of a piece of media and all the ideas that appear in it, copyright has a limited set term and expires. Trademark is more limited and only applies to things used to market and sell a product. You can have a Coke branded vending machine in your movie if you want, but it couldn't appear anywhere in the trailer for your movie as thats you marketing your movie.
Where trademark ends and copyright begins and how trademarked something in the public domain is allowed to be are all unsettled areas of law and clearly Disney in the last few years as been aggressively pushing its trademark not just to Mickey in general but Steamboat Willie Mickey in particular
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Ultimately the legal rights and wrongs of this might not matter so much since few people have the money and legal resources of the Walt Disney corporation so they might manage to maintain a de facto copyright on Mickey through legal intimidation, but maybe not?
And Tigger Too!
All the talk about Mickey Mouse and Steamboat Willie has sadly overshadowed other MAJOR things entering the public domain today. Most people are aware Winnie the Pooh entered the public domain in 2022, but they might not realize his beloved friend Tigger didn't. Thats because Tigger didn't appear till A. A. Milne's second (and last) book of Pooh short stories, The House at Pooh Corner in 1928.
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Much like Mickey Mouse only what appears in The House at Pooh Corner is public domain so the orange bouncy boy from the 1960s Disney cartoon is still on lock down. But the A. A. Milne original as illustrated by E. H. Shepard is free for you to use in fiction or art. His friend Winnie the Pooh has made a number of appearances since being freed, most notably in a horror movie, but also a Mint Mobile commercial so maybe Tigger too will have a lot of luck in the public domain.
Other works:
Peter Pan; or the Boy Who Wouldn't Grow Up
Peter Pan is a strange case, even though the play was first mounted in 1904, and the novelization (Peter and Wendy) was published in 1911, The script for the play was not published till 1928 (confusing!) meaning while the novel as been public domain for years the play (which came first) hasn't been, but now it is and people are welcome to mount productions of it.
Millions of Cats
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The oldest picture book still in print, did you own a copy growing up? (I did)
Lady Chatterley's Lover
The iconic porn novel that was at the center of a number of groundbreaking obscenity cases in the 1960s and helped establish your right to free speech.
All Quiet on the Western Front and The Threepenny Opera in their original German (but you can translate them if you want), The Mystery of the Blue Train by Agatha Christie, and Orlando by Virginia Woolf will also be joining us in the public domain along with any and all plays, novels, and books published in 1928
for Films we have The Man Who Laughs who's iconic image inspired the Joker
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Charlie Chaplin's The Circus, Buster Keaton's The Cameraman, Should Married Men Go Home? the first Laurel and Hardy movie, Lights of New York the first "all talking" movie, The Passion of Joan of Arc, The Wind, as well as The Last Command and Street Angel the first films to win Oscars for Best Actor and Best Actress respectively will all be entering public domain
For Musical Compositions (more on that in a moment) we've got
Mack the Knife by Bertolt Brecht, Let’s Do It (Let’s Fall in Love) by Cole Porter, Sonny Boy by George Gard DeSylva, Lew Brown & Ray Henderson, Empty Bed Blues by J. C. Johnson, and Makin’ Whoopee! by Gus Khan are some of the notables but any piece of music published in 1928 is covered
Any art work published in 1928, which might include works by Frida Kahlo, Georgia O'Keeffe, Alexej von Jawlensky, Edward Hopper, and André Kertész will enter the public domain, we are sure those that M. C. Escher's Tower of Babel will be in the public domain
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Swan Song, Public Domain and recorded music
While most things are covered by the Copyright Act of 1976 as amended by the Digital Millennium Copyright Act, none of the copyright acts covered recordings you see when American copyright law was first written recordings did not exist and so through its many amendings no one fixed this problem, movies were treated like plays and artwork, but recorded sound wasn't covered by any federal law. So all sound recordings from before 1972 were governed by a confusing mess of state level laws making it basically impossible to say what was public and what was under copyright. In 2017 Congress managed to do something right and passed the Music Modernization Act. Under the act all recordings from 1922 and before would enter the public domain in 2022. After taking a break for 2023, all sound recordings made in 1923 have entered the public domain today on January 1st 2024, these include.
Charleston by James P. Johnson
Yes! We Have No Bananas (recorded by a lot artists that year)
Who’s Sorry Now by Lewis James
Down Hearted Blues by Bessie Smith
Lawdy, Lawdy Blues by Ida Cox
Southern Blues and Moonshine Blues by Ma Rainey
That American Boy of Mine and Parade of the Wooden Soldiers by Paul Whiteman and his Orchestra
Dipper Mouth Blues and Froggie More by King Oliver’s Creole Jazz Band, featuring Louis Armstrong
Bambalina by Ray Miller Orchestra
Swingin’ Down the Lane by Isham Jones Orchestra
Enjoy your public domain works!
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aquitainequeen · 11 months
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Thoughts from David Slack on 'AI' and copyright
(the voice theft in particular is really depressing)
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hashtagloveloses · 7 months
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the US Copyright Office is asking for public comment on AI and copyright!!! now is the time to be LOUD about it so there can be government regulations.
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GO COMMENT RIGHT NOW:
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the-irreverend · 3 months
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My own stupid-ass way of celebrating our long-awaited ownership of Mickey Mouse.
Yes, I'm a Nimona fan, shut up y'all.
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opencharacters · 3 months
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Public Domain Day 2024
Once again its the day we all wait for, public domain day. the day some thing get ripped out of the clasps of the claws of corporations. This year is notable for many things becoming public domain but specifically a certain mouse in the united states. Here's an example of some of the things but note that this is only a sampling of what's become public domain
In Europe and other life of author + 70 years areas:
The Wind Has Risen by Tatsuo Hori
The polish Koziołek Matołek comics by Kornel Makuszyński
Mr. Weston's Good Wine by T.F Powys
In New Zealand and other life of author + 50 years areas:
J.R.R Tolkien's work, but only the ones published during his lifetime. Things published by his son Christopher are not public domain
Margaret Wilson's The Able McLaughlins
The works of crime writer Lucy Beatrice Malleson (Anthony Gilbert)
In the US:
All things published in 1928
The big one of course, Steamboat Willie and the earliest incarnation of Mickey Mouse. Disney still owns trademarks so be careful and theres some things like his gloves that didnt appear until later and im sure the Mouse's lawyers are watching like hawks
The House at Pooh Corner, first appearance of Tigger
Orlando: A Biography by Virginia Woolf
Theres much more. Take a peek over at Project Gutenberg or The Internet Archive
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It all started with a mouse
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For the public domain, time stopped in 1998, when the Sonny Bono Copyright Act froze copyright expirations for 20 years. In 2019, time started again, with a massive crop of works from 1923 returning to the public domain, free for all to use and adapt:
https://web.law.duke.edu/cspd/publicdomainday/2019/
No one is better at conveying the power of the public domain than Jennifer Jenkins and James Boyle, who run the Duke Center for the Study of the Public Domain. For years leading up to 2019, the pair published an annual roundup of what we would have gotten from the public domain in a universe where the 1998 Act never passed. Since 2019, they've switched to celebrating what we're actually getting each year. Last year's was a banger:
https://pluralistic.net/2022/12/20/free-for-2023/#oy-canada
But while there's been moderate excitement at the publicdomainification of "Yes, We Have No Bananas," AA Milne's "Now We Are Six," and Sherlock Holmes, the main event that everyone's anticipated arrives on January 1, 2024, when Mickey Mouse enters the public domain.
The first appearance of Mickey Mouse was in 1928's Steamboat Willie. Disney was critical to the lobbying efforts that extended copyright in 1976 and again in 1998, so much so that the 1998 Act is sometimes called the Mickey Mouse Protection Act. Disney and its allies were so effective at securing these regulatory gifts that many people doubted that this day would ever come. Surely Disney would secure another retrospective copyright term extension before Jan 1, 2024. I had long arguments with comrades about this – people like Project Gutenberg founder Michael S Hart (RIP) were fatalistically certain the public domain would never come back.
But they were wrong. The public outrage over copyright term extensions came too late to stave off the slow-motion arson of the 1976 and 1998 Acts, but it was sufficient to keep a third extension away from the USA. Canada wasn't so lucky: Justin Trudeau let Trump bully him into taking 20 years' worth of works out of Canada's public domain in the revised NAFTA agreement, making swathes of works by living Canadian authors illegal at the stroke of a pen, in a gift to the distant descendants of long-dead foreign authors.
Now, with Mickey's liberation bare days away, there's a mounting sense of excitement and unease. Will Mickey actually be free? The answer is a resounding YES! (albeit with a few caveats). In a prelude to this year's public domain roundup, Jennifer Jenkins has published a full and delightful guide to The Mouse and IP from Jan 1 on:
https://web.law.duke.edu/cspd/mickey/
Disney loves the public domain. Its best-loved works, from The Sorcerer's Apprentice to Sleeping Beauty, Pinnocchio to The Little Mermaid, are gorgeous, thoughtful, and lively reworkings of material from the public domain. Disney loves the public domain – we just wish it would share.
Disney loves copyright's other flexibilities, too, like fair use. Walt told the papers that he took his inspiration for Steamboat Willie from Charlie Chaplin and Douglas Fairbanks, making fair use of their performances to imbue Mickey with his mischief and derring do. Disney loves fair use – we just wish it would share.
Disney loves copyright's limitations. Steamboat Willie was inspired by Buster Keaton's silent film Steamboat Bill (titles aren't copyrightable). Disney loves copyright's limitations – we just wish it would share.
As Jenkins writes, Disney's relationship to copyright is wildly contradictory. It's the poster child for the public domain's power as a source of inspiration for worthy (and profitable) new works. It's also the chief villain in the impoverishment and near-extinction of the public domain. Truly, every pirate wants to be an admiral.
Disney's reliance on – and sabotage of – the public domain is ironic. Jenkins compares it to "an oil company relying on solar power to run its rigs." Come January 1, Disney will have to share.
Now, if you've heard anything about this, you've probably been told that Mickey isn't really entering the public domain. Between trademark claims and later copyrightable elements of Mickey's design, Mickey's status will be too complex to understand. That's totally wrong.
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Jenkins illustrates the relationship between these three elements in (what else) a Mickey-shaped Venn diagram. Topline: you can use all the elements of Mickey that are present in Steamboat Willie, along with some elements that were added later, provided that you make it clear that your work isn't affiliated with Disney.
Let's unpack that. The copyrightable status of a character used to be vague and complex, but several high-profile cases have brought clarity to the question. The big one is Les Klinger's case against the Arthur Conan Doyle estate over Sherlock Holmes. That case established that when a character appears in both public domain and copyrighted works, the character is in the public domain, and you are "free to copy story elements from the public domain works":
https://freesherlock.files.wordpress.com/2013/12/klinger-order-on-motion-for-summary-judgment-c.pdf
This case was appealed all the way to the Supreme Court, who declined to hear it. It's settled law.
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So, which parts of Mickey aren't going into the public domain? Elements that came later: white gloves, color. But that doesn't mean you can't add different gloves, or different colorways. The idea of a eyes with pupils is not copyrightable – only the specific eyes that Disney added.
Other later elements that don't qualify for copyright: a squeaky mouse voice, being adorable, doing jaunty dances, etc. These are all generic characteristics of cartoon mice, and they're free for you to use. Jenkins is more cautious on whether you can give your Mickey red shorts. She judges that "a single, bright, primary color for an article of clothing does not meet the copyrightability threshold" but without settled law, you might wanna change the colors.
But what about trademark? For years, Disney has included a clip from Steamboat Willie at the start of each of its films. Many observers characterized this as a bid to create a de facto perpetual copyright, by making Steamboat Willie inescapably associated with products from Disney, weaving an impassable web of trademark tripwires around it.
But trademark doesn't prevent you from using Steamboat Willie. It only prevents you from misleading consumers "into thinking your work is produced or sponsored by Disney." Trademarks don't expire so long as they're in use, but uses that don't create confusion are fair game under trademark.
Copyrights and trademarks can overlap. Mickey Mouse is a copyrighted character, but he's also an indicator that a product or service is associated with Disney. While Mickey's copyright expires in a couple weeks, his trademark doesn't. What happens to an out-of-copyright work that is still a trademark?
Luckily for us, this is also a thoroughly settled case. As in, this question was resolved in a unanimous 2000 Supreme Court ruling, Dastar v. Twentieth Century Fox. A live trademark does not extend an expired copyright. As the Supremes said:
[This would] create a species of mutant copyright law that limits the public’s federal right to copy and to use expired copyrights.
This elaborates on the Ninth Circuit's 1996 Maljack Prods v Goodtimes Home Video Corp:
[Trademark][ cannot be used to circumvent copyright law. If material covered by copyright law has passed into the public domain, it cannot then be protected by the Lanham Act without rendering the Copyright Act a nullity.
Despite what you might have heard, there is no ambiguity here. Copyrights can't be extended through trademark. Period. Unanimous Supreme Court Decision. Boom. End of story. Done.
But even so, there are trademark considerations in how you use Steamboat Willie after Jan 1, but these considerations are about protecting the public, not Disney shareholders. Your uses can't be misleading. People who buy or view your Steamboat Willie media or products have to be totally clear that your work comes from you, not Disney.
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Avoiding confusion will be very hard for some uses, like plush toys, or short idents at the beginning of feature films. For most uses, though, a prominent disclaimer will suffice. The copyright page for my 2003 debut novel Down and Out in the Magic Kingdom contains this disclaimer:
This novel is a work of fiction, set in an imagined future. All the characters and events portrayed in this book, including the imagined future of the Magic Kingdom, are either fictitious or are used fictitiously. The Walt Disney Company has not authorized or endorsed this novel.
https://us.macmillan.com/books/9781250196385/downandoutinthemagickingdom
Here's the Ninth Circuit again:
When a public domain work is copied, along with its title, there is little likelihood of confusion when even the most minimal steps are taken to distinguish the publisher of the original from that of the copy. The public is receiving just what it believes it is receiving—the work with which the title has become associated. The public is not only unharmed, it is unconfused.
Trademark has many exceptions. The First Amendment protects your right to use trademarks in expressive ways, for example, to recreate famous paintings with Barbie dolls:
https://www.copyright.gov/fair-use/summaries/mattel-walkingmountain-9thcir2003.pdf
And then there's "nominative use": it's not a trademark violation to use a trademark to accurately describe a trademarked thing. "We fix iPhones" is not a trademark violation. Neither is 'Works with HP printers.' This goes double for "expressive" uses of trademarks in new works of art:
https://en.wikipedia.org/wiki/Rogers_v._Grimaldi
What about "dilution"? Trademark protects a small number of superbrands from uses that "impair the distinctiveness or harm the reputation of the famous mark, even when there is no consumer confusion." Jenkins says that the Mickey silhouette and the current Mickey character designs might be entitled to protection from dilution, but Steamboat Willie doesn't make the cut.
Jenkins closes with a celebration of the public domain's ability to inspire new works, like Disney's Three Musketeers, Disney's Christmas Carol, Disney's Beauty and the Beast, Disney's Around the World in 80 Days, Disney's Alice in Wonderland, Disney's Snow White, Disney's Hunchback of Notre Dame, Disney's Sleeping Beauty, Disney's Cinderella, Disney's Little Mermaid, Disney's Pinocchio, Disney's Huck Finn, Disney's Robin Hood, and Disney's Aladdin. These are some of the best-loved films of the past century, and made Disney a leading example of what talented, creative people can do with the public domain.
As of January 1, Disney will start to be an example of what talented, creative people give back to the public domain, joining Dickens, Dumas, Carroll, Verne, de Villeneuve, the Brothers Grimm, Twain, Hugo, Perrault and Collodi.
Public domain day is 17 days away. Creators of all kinds: start your engines!
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If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
https://pluralistic.net/2023/12/15/mouse-liberation-front/#free-mickey
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Image: Doo Lee (modified) https://web.law.duke.edu/sites/default/files/images/centers/cspd/pdd2024/mickey/Steamboat-WIllie-Enters-Public-Domain.jpeg
CC BY 4.0 https://creativecommons.org/licenses/by/4.0/deed.en
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prokopetz · 4 months
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I need to live another twenty years purely to see what kind of bullshit the Tolkien estate gets up to with respect to The Silmarillion in 2044.
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thoughtportal · 1 year
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