Public Domain Day

I've written a couple of times about the changes to copyright laws and how Disney got the copyright length extended the last time it seemed as though Steamboat Willie was about to enter the public domain. The law in question extended copyrights for stuff going back to 1923. For some reason I thought the copyrights had been extended longer; I thought there were 120-year terms. But that was due to a misunderstanding on my part. Technically there are but according to the Copyright Term Extension Act of 1998, that 120 years is from the date of creation, not the date of publication. Once you publish, the 95-year clock starts.

So what that means is that anything copyrighted in 1923 should be entering the public domain on Tuesday That means that five years from Tuesday, if there are no changes, Steamboat Willie, released in 1928, would enter the public domain. I can't see Disney letting that happen if they have any say, so it will be interesting to see what happens.

Having said that, as much as I dislike rights holders like Disney getting copyright terms extended, I do think that trademark is a perfectly valid protection for characters like Mickey Mouse that are still being used commercially. If I understand intellectual property correctly, that would mean that anyone who owned a print of Steamboat Willie five years from now, assuming the copyright terms aren't extended, ought to be able legally to sell copies of it, or to charge admission to show it, without having to pay Disney for that. However, people wouldn't be able to create new Mickey Mouse cartoons.

Of course, that brings up a different and equally interesting question. Suppose we had current IP laws back when Mary Shelley wrote Frankenstein 200 years ago. The book would be in the public domain, but would her estate have been able to trademark the character, even if the estate were not producing any new books. Think of all the classic horror movies that wouldn't have been feasible under such IP rules. Or have I misunderstood the way trademark works?