Betty Boop decision: Copyright trumps trademark

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A little catch-up here on a potentially groundbreaking legal story that we don’t have time to completely break out, but basically, early Betty Boop cartoons are now in the public domain, despite Fleischer Studios still owning the trademark and licensing out contemporary versions of Betty Boop (which you see all over the place on purses, Ts and so on.)

Johanna has more on the story, but the potentially groundbreaking interpretation is something David Gerstein posts in the Cartoon Brew comments:

What I take from the judge’s ruling is that the trademark only applies to new, modern uses of the character. It can’t be used to stop people from redistributing old PD Betty images/items. Fleischer tried to say trademark trumped copyright; the judge is saying that it doesn’t.

This is actually pretty major. In recent years, Warner has used the active trademarks on Looney Tunes characters to quash third parties’ reissues of PD 1930s/40s Looney Tunes content (of which there is a lot). If the Betty decision is not reversed on appeal, then Warner is stripped of its strongest weapon against the public domain.


It can use the trademark against those who would create new Bugs Bunny items, but not against those who would exploit old PD material that Warner failed to protect.


Obviously, this is only an interpretation, but with tons of depictions of old characters (see previous post) coming into the public domain, this could have serious consequences, despite Disney’s ability to maintain copyright on Mickey Mouse seemingly forever.

Comments

  1. Steve Chaput says:

    You do see Betty all over the place. I’ve always wondered how Disney can hold onto even the oldest Steamboat Willie style Mickey and earlier Donald. Be an interest case to watch in coming months.

  2. I’m not a lawyer, but wasn’t this covered by Dastar vs. Twentieth Century Fox? If copyright has expired, you can’t use trademark to prevent legal copying.

  3. Stephen C. says:

    If my understanding of it is correct, the 1998 revision to copyright law extended the copyright on corporate creation to 95 years, so Mickey Mouse should remain under copyright until at least 2023, unless the law is changed again.

    An earlier version of the law used to require that the owner renew the copyright after a certain number of years, which is how a lot of later stuff, including the Warner Bros cartoons referenced above and a lot of Fleischer material entered the public domain.

  4. Glenn Simpson says:

    I suppose I’m a little unclear as to what denotes “using the PD material” and what would be “creating new material.” So if I made a Betty Boop t-shirt, I would have to prove that I was using PD Betty Boop? Do I have to be able to point to a particular scene from an old BB cartoon as the source of the image?

    Given the limited art style of BB, that could be interesting.

  5. I would imagine one has to err on the side of caution.

  6. mario Boon says:

    Popeye is in the Public Domain too.
    I think IDW can shed some light on how to exploit such PD IP’s

  7. Mmaarrkk says:

    If you reproduce and commercialize any character, even if it’s your own… And someone either believes or has made an effort to claim ownership on it.. They have every right to petition a case of infringement, as does anyone. Anyone has the right to try to sue anyone.. If they have an official active license number in the national registry or in the same state the alleged lives in, then that person has a better chance of all the Court and possible attorney fees being a waste of time and money.

  8. Mmaarrkk says:

    Of not being a waste of time and money. Sorry.

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