Public Domain Day 2024

It’s the annual Public Domain Day: the day that a bunch of older works enter the public domain. This year, works published in 1928 enter the public domain. There’s no way around it: this year is completely about Mickey Mouse. Steamboat Willie, the first widely available appearance of Mickey Mouse, has fallen into the public domain.

But steer carefully. Only a very specific depiction of Mickey has fallen into the public domain.

This is a significant moment because not long ago Disney spent a lot of lobbying effort and money to avoid it. The Copyright Term Extension Act in 1998 was heavily supported by Disney specifically to avoid Mickey Mouse’s depiction in Steamboat Willie from falling into the public domain. They weren’t the only ones involved, but they were the most prominent proponent of the extension.

Other works have enter the public domain as well, including classic literary works like Lady Chatterley’s Lover and All Quiet on the Western Front. It also includes some of the finest examples of silent film in The Man Who Laughs and The Passion of Joan of Arc.

But one needs to be careful using Mickey Mouse in their own works, as Disney still has newer versions and uses of the character protected. Only the earliest Mickey Mouse of Steamboat Willie fame is in the public domain. Any newer depictions, including his gloves and newer design elements, remain copyrighted. To complicate things, Disney has a trademark on Mickey Mouse, meaning one cannot slap him on merchandise if that leads a consumer into believing the merchandise was made by Disney.

But what one can do is distribute Steamboat Willie and make new art that depicts the characters in that fashion. Just make sure those Steamboat sequels don’t include modern Mickey, and get legal advice before selling specific merchandise.

Happy New Year and Happy Public Domain Day from the Law Firm of Dillon McCarthy!

Copyright Office Rules AI Art Ineligible for Copyright Protection

In September of 2022 author Kristina Kashtanova filed her comic book titled Zarya of the Dawn with the US Copyright Office. The Copyright Office issued a fairly routine copyright registration. There was just one problem: the images with the book were generated by the AI program Midjourney. Kashtanova did not disclose this in her original filing. On February 21, 2023, the government revoked her registration and issued a new one excluding the AI produced elements.

The issue of how intellectual property laws will apply to AI generated works is only going to get more important as these tools proliferate. But for now the Copyright Office has issued important guidance consistent with how they have approached non-human works in the past. The Copyright Office cited numerous precedents that only human authors may produce “works of authorship” eligible for copyright protection. Cases where copyright was denied range from photographs taken by monkeys to books that people claimed were written by ethereal beings.

Importantly, the Copyright Office determined that providing the prompts to Midjourney did not constitute an act of creativity sufficient to make her the author of the images. Rather, even though she claimed to guide the long process through trial-and-error, the images were ultimately “produced by a machine or mere machine process that operates randomly or automatically without any creative input or intervention from a human author” because of its unpredictable nature. Further, courts have stated that an author must “actually form” the work in their mind, not created out of an algorithm and training set. While this interpretation may be challenged in court in the future, the first line in the sand has been drawn for copyrighting AI art.

Notably, the examiner determined that providing the AI prompts did not constitute an act of authorship. Firstly, the AI uses random noise against trained data sets to create an image, which results that often do not match what the person providing the prompts intended. Secondly, commissioning a human artist with a prompt would also not make the one who provided the prompt the author of the piece. This shuts down one of the primary arguments for being allowed to register AI generated works.

However, there is still something for those using AI generated artwork to hold on to. The Office registered the text of the comic, as it was written by a human. But it also registered the “selection, coordination, and arrangement” of the images and text into a coherent story. While someone could copy the artwork in the comic, they could not copy the arrangement of the images wholesale. This provides less protection of the individual pieces of the work, but does provide some protection against a wholesale copying of the comic. This may be enough in some circumstances.

The Law Firm of Dillon McCarthy is excited to keep exploring the frontier of intellectual property law in this new world. If you need help with your intellectual property need, please contact us.

Top Gun: Maverick Lawsuit Highlights Little-Known Area of Copyright Law: Termination

Top Gun: Maverick just came out, and it’s a hit. People are returning to theaters to see the high-flying action on the big screen. Those tickets mean money, and that money has attracted a lawsuit.

The original Top Gun was inspired by an article written by Ehud Yonay and published in California magazine in 1983. The article was, appropriately enough, titled “Top Guns.” Paramount optioned the article and Yonay received a “based on” credit in the original film.

But many years have passed between then and the new film. And during that time, those assigned rights in the article became eligible for termination. Section 203 of the Copyright Act gives authors and their heirs the rights to terminate assigned rights in their copyrighted works. For works published after 1977, authors may terminate assignments 35 years after they granted them.

That’s what Yonay’s heirs, his widow and child, say happened here. It’s been more than 35 years since the grant, and the lawsuit claims that they followed the proper steps to revert the rights back to them on January 24, 2020. They further claim that, since Top Gun was based on the article, Top Gun: Maverick constitutes an infringing derivative work of the article, which Paramount no longer holds the rights to. These termination would not affect Paramount’s right to keep distributing the original Top Gun, but the new movie could be an issue.

How the case will go depends on many specifics, including proper notice and how similar the article is to the new film. But it illustrates how many tools exist under copyright law. If you are an author or company dealing with assigning or reclaiming copyrights, The Law Firm of Dillon McCarthy is happy to help.