Here it is — Betty Boop's first appearance, which became public domain on Thursday. It's a 60-second song halfway through a longer cartoon about a restaurant titled Dizzy Dishes. (The first scene makes it clear this is a restaurant of anthropomorphized animals — which explains why the as-yet-unnamed character has floppy dog ears...)
So Fleischer Studios has now warned that claiming Betty Boop is public domain "is actually not true."
Very often, different versions of a character that have been developed later can independently enjoy copyright protection. Also, names and depictions of a character very frequently will remain separately protected by trademark and other laws, regardless of whether the copyright has expired.
But is that really true? Fleischer Studios went out of business in 1946, notes Los Angeles Times columnist Michael Hiltzik:
By then it had sold the rights to its cartoons and the Betty Boop character. A new Fleischer Studios was formed in the 1970s by Fleischer descendants, including Max's grandson Mark Fleischer, and set about repurchasing the rights that had been sold. Whether it reacquired the rights to Betty Boop is up for discussion... According to a federal appeals court ruling in 2011, the answer is no. Having navigated its way through the three or four copyright transfers that followed the original rights sale, the appeals court concluded that the original Fleischer studios sold the rights to Betty Boop and the related cartoons to Paramount in 1941 but couldn't verify that the rights to the character had been sold in an unbroken chain placing them with the new studio. The "chain of title" was broken, the appellate judges found — but they didn't say who ended up with Betty Boop.
And last month Cory Doctorow pointed out that "while the Fleischer studio (where Betty Boop was created) renewed the copyright on Dizzy Dishes, there were many other shorts that entered the public domain years ago."
That means that all the aspects of Betty Boop that were developed for Dizzy Dishes are about to enter the public domain. But also, all the aspects of Betty Boop from those non-renewed shorts are already in the public domain. But some of the remaining aspects of Betty Boop's character design — those developed in subsequent shorts that were also renewed — are also in the public domain, because they aren't copyrightable in the first place, because they're "generic," or "trivial," constitute "minuscule variations," or be so standard or indispensable as to be a "scène à faire...." But we're not done yet! Just because some later aspects of the Betty Boop character design are still in copyright, it doesn't follow that you aren't allowed to use them! U.S. Copyright law has a broad set "limitations and exceptions," including fair use. ...
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