In this century, there have been (basically) two
copyright statutes in the United States--[1] the 1909 Copyright
Act (1909 until 1978) , and [2] the 1976 Copyright Act (1978 to
present). Although the 1909 Copyright Act was superseded, that
former statute remains relevant for any work of art published
prior to 1978.Most people are familiar with copyright expiration, a concept that exists under both statutes. [Under the 1909 Act, a copyright lasted for 28 years and could be renewed (once only) for an additional 28 years. Under the 1976 Act, a copyright lasts either [1] the life of the author plus 50 years, or [2] a "flat" 75 years (in those circumstances where the life of an author cannot be determined, such as where the "author" is a corporation). The 1976 Act also added an extra 19 years to the life of any copyright granted under the former 1909 Act so long as such copyright remained valid on Jan. 1, 1978. Thus, the old "rule of thumb" that a copyright lasts a maximum of 56 years (if renewed) no longer applies--even old copyrights will last 75 years (unless the copyright was terminated before 1978).]
Most people are unfamiliar, however, with the concept of copyright forfeiture. Under the old Copyright Act of 1909, copyright protection attached to any work published with a proper copyright notice. Conversely, copyright protection was terminated, instantaneously, for any work published without a legally effective copyright notice. A legally effective copyright notice consisted of three elements: [1] the word "copyright", or the symbol "c", or the abbreviation "copr.", [2] the year of first publication in the United States (the "year-date"), and [3] the name of the copyright proprietor. In certain cases the year-date could be omitted without rendering the notice ineffective. Notice omitted from a single copy was sufficient to place a work into the public domain. Because this result was deemed too harsh, the notice requirement was (in essence) removed from the new Copyright Act of 1976. Consequently, forfeiture is not an active concept in the 1976 Act, however, that concept is still alive and applicable for all copies published before 1978.
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in the early 1930s the Walt Disney Studio published many fictional characters (Mickey Mouse, Minnie Mouse, Pluto, the Three Little Pigs, the Big Bad Wolf, Clarabelle Cow, Horace Horcecollar, Pete) in copies without proper copyright notices (and often without any notice whatsoever).
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We understand that each of these 1930s items omitting copyright notice has been quietly removed from the Walt Disney Archives. Disney would like to pretend such items never existed, however, Disney's success is also its downfall. Disney's tremendous popularity has created a multitude of collectors who save anything and everything associated with Disney--especially the items from the early 1930s. Disney can never make the unnoticed items disappear because those items appear in numerous collections, frequently turn up at auctions, and are even depicted and described in Disneyana books published by Disney itself.
You might ask "how could a company like Disney make such a royal screw-up?" The answer is a simple one. For purposes of securing copyrights, the amount of resources commanded by Disney today is wholly irrelevant. What mattered was the amount of resource controlled by Disney back in the late 1920s and early 1930s. It is well known that Walt and Roy and Disney began their studio on a "shoestring" budget; they did not have the money to hire expensive copyright lawyers. Moreover, even if they had enormous funds to hire the best copyright lawyers, it is likely that copyright errors would have occurred anyway. Lawyers claiming to have expertise in copyright law are notorious knuckleheads. [Harvey Publications, Inc. was the largest comic book publisher in the 1950s. Harvey had purchased a large portion of the Paramount Picture's cartoon library, including all rights to the character of "Casper the Friendly Ghost." In addition, Harvey created the character of "Richie Rich." Harvey's copyright counsel was a "blue blood" intellectual property law firm. Those lawyers advised Harvey to save money by selectively renewing its copyrights. Those lawyers failed to inform Harvey of the importance in renewing the copyright on work that introduced a character. As a result, Harvey failed to renew the copyright on the 1945 animated motion picture "The Friendly Ghost" (the work in which Casper appeared for the first time). Neither did Harvey renew the copyright on "Little Dot Number Six" (the work that contains Richie Rich's first appearance). The rule is that a fictional character is protected against copying only as long as copyright is valid on the work in which that character first appeared. Because Harvey failed to renew the copyrights on the first works to depict Casper and Richie Rich, those characters lapsed into the public domain.]
Disney's copyright violations have international implications. As a general rule, a foreign country will not give a work copyright protection greater than the protection afforded in its home territory. In Italy, any person showing that U.S. copyright was forfeited on Mickey Mouse would thereby establish that Mickey Mouse is unprotectible under Italian law.
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one (uninformed) person argued that trademark law will protect Mickey Mouse against copying once copyright protection has terminated. On its face that argument is meritless because laws do not overlap. Copyright law is the only law that protects a work of art against copying. Trademark law only protects a party from impersonation by another through the use of a work or symbol. There have always been laws to prevent an impersonator from engaging in deception by adopting another's name and signature. Trademark law merely expands the laws against deception to prevent a businessman's attempt to deceive the public by adopting a trade-name or trade-logo identifying another party. Trademark law protects against deception, not copying. Once a fictional character (such as Mickey Mouse) becomes a part of the public domain, such character (and its name) can be freely exploited by anyone as long as there is no intent to deceive the public.