Public Domain Day 2022

A new year, a new public domain day. Each year for the past few years new works have been entering the public domain. This year brings a number of notable works into the public domain, meaning anyone is free to reproduce or iterate on them.

This year one of the most notable works is A. A. Milne’s Winnie-the-Pooh! There are already a handful of new works featuring the beloved bear that have been published online in the wake of the original book entering the public domain. However, those looking to jump into the Winne the Pooh frenzy should be aware of the complexities of copyright law. While most of the well-known characters, including Winnie the Pooh, Piglet, Eeyore, and Rabbit, were introduced in this first book, Tigger was not. Tigger’s first appearance will not enter the public domain until 2024. Further, the iconic re-designs of the characters featured in Disney films will not enter the public domain at this time. So, make sure any new Pooh books use the original illustration designs or new illustrations easily distinguished from the Disney designs, and save Tigger troubles for a future release.

On the film front Don Juan, a 1926 film that was the first to use the Vitaphone sound system, though only for soundtrack and sound effect — not dialogue, enters the public domain. That shows just how much the public domain lags behind; we’ll get to talkies soon.

For those copyright nerds out there, The Cohens and the Kellys, the film at the center of the Nichols v. Universal stock character copyright case, finally enters the public domain, making the matter moot 92 years later.

Scarlett Johansson's Lawsuit Against Disney Highlights the Importance of Precise Contract Drafting

2020 was a strange time for many industries, the film industry included. The big studios began experimenting to try and salvage their revenue in a year of movie theater closures. One of the big changes tried by giants like Warner Bros. and Disney was releasing films simultaneously to theater and on demand streaming. "Black Widow” was one of the victims of this strategy. Disney released it to theaters and on their streaming service Disney+ on July 9, 2021.

Traditionally, big stars receive a portion of the box office when they agree to star in a blockbuster, and Scarlett Johansson’s in “Black Widow” was no exception. But the box office receipts only apply to theatrical showings, not to viewings at home. This has resulted in an explosive lawsuit on her part against Disney, accusing them of violating her contract with them by not releasing the film exclusively theatrically for a period of time.

These claims will play out either in court or, most likely, in a settlement agreement. But they reveal how non-specific language in entertainment contracts can lead to disputes. The complaint alleges that the contract stated the film would receive a theatrical release. It did, and I’m sure Disney would rather you see it that way. But Johansson’s legal team argued that as a “term of art”, a generally understood phrase that everyone in the film industry would read the same, “theatrical release” should be understood as an “exclusive theatrical release.” She further cites to e-mails between her and Disney lawyers clarifying this position.

How might prevail here is a complex issue. But that’s the point. A lawsuit like this will need to address concepts like terms of art, good faith and dealing, and a host of other difficult legal subjects. These are the pitfalls of writing a contract assuming the sides are in agreement, rather than ensuring the contract is very clear and all important points. This would have never gotten this far were the contract to state either position clearly: either the theatrical run isn’t exclusive or it is, stated explicitly on the page.

This is why it’s important to carefully consider every provision of an entertainment contract, making sure that it unambiguously states what those signing think it does. As streaming changes the landscape, stating how it should be handled will become more important than ever. This is why it’s important to have a considerate lawyer on your side during contract negotiation. The Law Firm of Dillon McCarthy aims to ensure that everyone can be represented when negotiating entertainment contracts.

Copyright Small Claims Arrives

Covid-19 has changed a lot about the world, and that includes the future of intellectual property litigation. Tucked away in the December 2020 coronavirus relief bill was the CASE Act, a law that establishes a voluntary small claims court for low-cost copyright disputes.

The Copyright Claims Board will be under the jurisdiction of the Copyright Office. It will be empowered to hear claims for damages due to copyright infringement up to $15,000 per claim, with an overall limit of $30,000 per case. A three-judge panel will rule on the cases.

Copyright litigation is notoriously expensive. With this act, Congress hopes to create an alternative forum where smaller claims can be litigated at lower cost. However, with the process being voluntary it remains to be seen how often parties will opt to use the system over the federal courts. In any case, the CCB won’t be open until at earliest late 2021.

Copyright is a complex area of law that Congress is looking at for a reason. If you are dealing with copyright in your work, contact The Law Firm of Dillon McCarthy for help.