Blog Archive

Copyright 'evergreening'

Jurisdictions with a 70 year post mortem period are welcoming into the public domain this year works from people who died in 1937 - people such as children's author Jean de Brunhoff (Barbar the elephant); Author Sir James Matthew Barrie (eg. Peter Pan); Musician and composer George Gershwin (eg. Rahpsody in Blue). (Thanks to WIPO for this list).

But is that the end of the story? Do you think that anyone will be able to use any likeness of Mickey Mouse once the post mortem periods for Walt Disney and Ub Iwerks end?

Each time something (almost anything) is reduced to material form - copyright is created in it. There is no concept of 'novelty' or 'newness' (or in many situations even creativity) necessary for copyright protection.

So to 'evergreen' a copyrighted work - just keep reproducing it in slight variations, each of which will have its own, new copyright term. Sure, competitors will be able to copy the original work once the post mortem period has ended, but the public (and your market) will have a stronger relationship with the newer versions, not the old ones.

Post a Comment | Permalink | + del.icio.us

2 Comments

Peter Cebon said

If Disney can perpetually renew the copyright on Mickey Mouse by creating minor variations, what is stopping me from copying it and simply making a minor variation to avoid breaching copyright? Is the law asymettrical?

posted on Sunday, March 2, 2008 4:13pm

Duncan said

Peter - you would infringe copyright with your first copy. The closer that each minor variation is to the original, the more likely it infringes the original copyright (which is fine if you're the original copyright owner).
The copyright owner gets to use this to their advantage because the minor variations, when they are created, each have their own, new copyright term. So, minor variations of each of these may also infringe copyright in each of them. And so on.
Is the law asymetrical? Well - you can't avoid copyright infringement merely by making a minor change. However, minor changes reinforce the notion that the newly created work has its own, separate copyright rather than being covered by the original work.

posted on Monday, March 3, 2008 6:16am

0 Trackbacks

trackback url: http://duncanbucknell.com/trackback.php?id=283