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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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October 15, 2004

Disney Caught Pirating from Public Domain -- and Children!

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Posted by Jason Schultz

When will Disney stop stealing from the public domain? I mean really, it's just like taking a CD from a record store without paying for it... except that the record store owner is dead... and well, the store is really the compendium of human knowledge.. and the CD is part of our collective cultural history. Whatever. Theft is Theft, right?

LONDON, England (CNN) -- An unlikely feud is seeing the film empire that built its name on cartoons for children -- the giant Disney corporation -- at odds with Britain's most famous hospital for sick children.

And it is all over another legendary children's favorite -- Peter Pan, the boy who never grew up.

In what the New York Post billed this week as "Sick kids vs. Disney in Peter Pan dust up," Great Ormond Street hospital for children in London is consulting lawyers over a book published by a Disney subsidiary in the United States.

"Peter and the Starcatchers" by Dave Barry and Ridley Pearson and published by Disney's Hyperion Books is billed as a prequel to the children's classic, "Peter Pan."

Great Ormond Street was left the royalties to Peter Pan in 1929 by the author, J.M. Barrie -- and million of pounds earned from copyright fees have gone towards treating sick children in Britain ever since.

This weekend sees the UK premiere of a film about Barrie's life, "Finding Neverland" -- starring Johnny Depp, Kate Winslet and Dustin Hoffman. The hospital will receive royalties from book excerpts portrayed in the film.

But the hospital charity says is getting nothing from "Peter and the Starcatchers" -- which has been on the New York Times best seller lists, has had an extensive author tour and has its own Web site. They say the book has been published without its permission.

A spokesman for the hospital told CNN that Great Ormond Street held the copyright to Peter Pan in the United States until 2023 -- although it runs out in EU countries in 2007 -- and said: "We are considering our options."

Disney, meanwhile, has insisted that Peter Pan is out of copyright in the United States.

"The copyright to the J.M. Barrie stories expired in the U.S. prior to 1998, the effective date of the U.S. Copyright Extension Act, and thus were ineligible for any extension of their term," Disney said in a statement to the Daily Telegraph.

Comments (8) + TrackBacks (0) | Category: IP Abuse


COMMENTS

1. Carlos on October 16, 2004 10:32 AM writes...

Although it falls out of copyright in the UK in 2007, Great Ormond Street Hospital retains some rights to Peter Pan in perpetuity:
http://www.hmso.gov.uk/acts/acts1988/Ukpga_19880048_en_21.htm#mdiv301

Disney must dream of such a law.

Permalink to Comment

2. Chris on October 16, 2004 11:50 AM writes...

And when does Mickey Mouse fall out of copyright in the UK? Just askin'.

Chris

Permalink to Comment

3. Mike on October 16, 2004 2:54 PM writes...

Isn't this about trademarks?

Peter Pan is out of copyright in the US and has been for years.

But the hospital probably has some rights about the creation of sequels or prequels.

Many of the Sherlock Holmes stories are in PD, but the characters are tightly controlled. Try doing a story in the Holmes universe and you'll get a letter from the Holmes estate's lawyers, wanting money and creative control.

Permalink to Comment

4. Branko Collin on October 17, 2004 6:52 PM writes...

There are several aspects to this story, but one of the more interesting ones is the perpetual copyright the children's hospital has on Peter Pan. This teaches us that the government of a proud and autonomous people can still make a stand in this global pool of 'harmonisation'.

Every government should produce a law that shows the people that they, and they alone!, decide what will happen to their country. And wouldn't it be poetic justice if the USA would draft a law, I call it the F***ing Michael Eisner in the B**t Act, that would make it illegal for Disney to profit from Peter Pan on penalty of sending the top ten executives to prison for every year they added to US copyright with the 1998 extension they bought?

After all, there's the law that Disney has to obey, and there's the law that Disney would like to obey. Surely they violated the latter?

(Oh boy, I wish I could buy laws too.)

Permalink to Comment

5. Joe A on October 18, 2004 11:05 AM writes...

It's the same old thing. Companies like Disney are trying to tie up the royalties on these copyrights forever. They also trying to get electronics manufacturers to build devices into all players that will prohibit copying. Worse than that, they are lobbying the government to punish manufacturers who won't comply.

This is big business at it's worst.

Permalink to Comment

6. Matt on October 20, 2004 1:06 PM writes...

I saw your article online re: Disney and Intellectual Property, and thought you might be interested in another side to this story.

I wrote this Press Release, which is being released today - please see below.

I think this issue is ripe for another investigative story on the other side of Disney.

Best Regards,
Matt Clairday
Michigan

Disney's Mouse Took My Cheese
How did Disney/ABC take the idea for a series called "Foreign Exchange", created by a writer in Michigan, and produce two programs based on the idea - "Switched" and "Switched Up" - without compensating the writer in any way?

NOVI, MI (PRWEB) October 20, 2004 -- Two years ago, Robynn Clairday, a published writer for a number of Children's books including several Sweet Valley series books, and her children's humor book, Tell Me This Isn't Happening, decided to try her hand at pitching ideas for several reality shows, a genre that was growing more popular by the day. One of her pitches was for a new reality concept she called Foreign Exchange. When she was told this was being pitched to an ABC executive in May 2002, she was ecstatic.

Disney/ABC behind the project would surely produce a success for all involved, including the creator. But, they turned it down, and Ms. Clairday went on to other projects. Imagine her surprise when friends from around the country started calling her in May 2003, to tell her that they saw promos for her show.

Upon intensive review, comparing sections of ABC's identical show, which they called Switched, large sections of both treatments were found to be nearly identical with Ms. Clairday's original Foreign Exchange treatment.

A lawsuit was initiated on behalf of Ms. Clairday in July 2003 against Disney/ABC seeking damages.

Complaint info: SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CASE NUMBER: BC310978 FILING DATE: 2/20/2004 (ROBYNN CLAIRDAY, Plaintiff v. ABC FAMILY WORLDWIDE, INC., a California Corporation; ABC ENTERPRISES, INC., a California Corporation; ABC, INC., a California Corporation; LIBBY JAMES, an individual; and DOES 1 through 100, Inclusive, Defendants)

To date, in spite of the fact that ABC has aired many episodes of both Switched, and it's spinoff, Switched Up, Ms. Clairday has collected zero from them for her original idea.

During a time when the US, and Disney in particular, have been concerned about the pirating of their Intellectual Properties by Chinese and other manufacturers, it is ironic that here in the US, they are doing the same thing to individual writer/creators.

Timeline for Foreign Exchange:
March 14, 2002: Ms. Clairday registered a four-page, detailed treatment for the TV reality show, Foreign Exchange, with The National Creative Registry. The premise for the show was young people exchanging lives with other young people whose worlds were totally opposite from each other.

April 2002: Ms. Clairday then pitched the show to Olmos Productions (owned by Freddie Olmos of Miami Vice). They were interested and wanted to present the show to ABC.

May 2002: Olmos Productions presented the show to an ABC executive over a lunch meeting. They were also sent a fax copy of the treatment. The executive was interested, but then reviewed the idea further, and "turned it down".

February 2003: Ms. Clairday pitched Foreign Exchange to Bryan Hale, an executive at Evolution Productions. He revealed that they were already producing a quote "identical show" for ABC Family. The show is now called Switched, which aired on ABC Family beginning May 2003. It's premise is young people exchanging lives with other young people whose worlds were totally opposite from each other. ABC Family promotes show on website with material almost identical to my treatment.

May 2003 - ABC Family began airing Switched, with material on their website almost identical to the original treatment for Foreign Exchange that Ms. Clairday created in 2002.

July 2003, Adams, Noblin & Vrataric LLP decided to represent Ms. Clairday, and filed a lawsuit against ABC.

Spring 2004: ABC then produced a spin-off, Switched Up, which began airing in the Spring 2004. This has the same premise of young people exchanging lives with others whose worlds are totally opposite from theirs, except now the players are people in their twenties.

The issue is whether large corporations will be allowed to appropriate writers ideas without payment. ABC has a pattern of this kind of behavior. Writers have little power against corporate leviathans, and like Disney/ABC, depend on protecting their own creations and intellectual property in order to make their living.

According to news reports in April 2004, Uri Geller also sues ABC for stealing his reality show idea about couples competing to adopt a child. http://www.contactmusic.com/new/xmlfeed.nsf/mndwebpages/GELLER%20PLANS%20LEGAL%20WAR%20WITH%20ABC%20OVER%20ADOPTION%20SHOW

ABC also being sued for Extreme Makeover reality show--claims of it being stolen from the creator.

www.accesshollywood.com/television/3421222/detail.html

Interview Contact:
Robynn Clairday, creator of Foreign Exchange
Telephone: 248-926-4388
e-mail protected from spam bots

Attorney Contact:
Adams, Noblin & Vrataric LLP
305 S. Kalodrama, Suite C Ventura CA 93001
805-653-7700 phone
805-653-7709-fax
counsel contact: Jason Adams
co-counsel--David Olan

# # #

Permalink to Comment

7. Joseph Pietro Riolo on October 20, 2004 6:39 PM writes...


To Matt Clairday,

You have a big misunderstanding about the copyright.
The ideas themselves are uncopyrightable and therefore,
are in the public domain. Very often, authors are
very selfish that they want to claim copyright in their
ideas but that is false. It is irresponsible of you
to continue the wrong information about copyright in
the ideas.


Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions
in this comment in the public domain.

Permalink to Comment

8. Michael on October 28, 2004 1:08 PM writes...

Regarding several things in the comments:

The rights in perpetuity link. This was a special act of the British government. They took a literary work, the copyright of which expired in 1987, and granted it permanent copyright status.

This has absolutely nothing to do with its copyright status anywhere else in the world. There is nothing in US copyright law which allows for works in the public domain to be "re-granted" copyright protection.

Now, interestingly enough, Barrie wrote the PLAY Peter Pan several decades after he published the STORY Peter Pan. The STORY -- and therefore the characters, since they were not protected by trademark -- has been public domain in the US for years. It all has to do with when the first published appearance of a work occurs. (In Australia, Gone with the Wind has been public domain for years, but in the US, it's not yet expired.)

Basically, GOSH is using this opportunity to scream "Corporate America is stealing from sick children" and accusing the kid-oriented Disney of hypocrisy. It's disingenuous, and news agencies too lazy to do even the most remedial research into copyright law are eating it up.


The next comment has to do with the comment about the Conan Doyle estate. In point of fact, there is no trademark protection for Sherlock Holmes. That's why the Doyle estate was so incensed at the use of Holmes on Star Trek: TNG, and the Holmes spoof Without a Clue. They didn't like it, but there wasn't anything they could do to stop it. Nor did they get any monetary compensation.

The opposite is true for Edgar Rice Burroughs Tarzan stories. While most, if not all of them are in public domain, Burroughs had the foresight and business acumen to TRADEMARK the character name. Copyright and trademark and not even remotely similar, in terms of what they cover and how they do it. One of the most important superficial differences is that copyright expires, and trademarks live forever.

Thus, every time you see Tarzan anything -- TV show, Disney movie, lunchbox, etc. -- that was a carefully negotiated deal with the Burroughs estate.

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