Using Public Domain Material at DVinfo.net

Steve Siegel · December 30th, 2007, 09:43 AM

I am preparing a short DVD on woodpeckers. Since it's audience will be children, the cartoon character Woody Woodpecker, is a natural to use in it.
Believe it or not, the 1941 Woody Woodpecker cartoon "Pantry Panic" is in the public domain. How it got there, I don't know, but it is. The character of Woody Woodpecker is surely not, however. How can one reconcile using clips from the public domain cartoon without violating copyright on the actual character?

Jim Andrada · December 31st, 2007, 07:51 PM

This is a really interesting question and I'm surprised someone who knows something hasn't responded.

I think it would be more likely that the character is trademarked and the films copyrighted, but this is just my guess.

As far as I can find out by poking around the internet, this particular film is indeed in the public domain and as such can be freely copied.

Again, I'm no IP specialist, but I think public domain is exactly that, public domain, meaning that anyone can use it or any part of it for anything they want.

In which case using a clip from the cartoon as a lead in to your woodpecker video should be just fine.

Where I think you'd potentially get into trouble would be if you copied the character out of one of the frames of the movie and used it as advertising for your business after removing it from its context. Particularly if you used the name "Woody Woodpecker" as part of your business name. I think this would be a major no-no.

Again, these are just my thoughts and I'd hope someone with real knowledge of the IP biz would comment. I know nothing, just speculating.

Steve Siegel · January 10th, 2008, 08:11 PM

Thanks Jim,
I figured the same way, but just wanted to hear it from someone else. The only other way one could get into trouble would be if the cartoon were a derivative work on the original piece (the character). If the original piece were copyright, the derivative could be in the public domain til the cows came home, and you still couldn't use it (unless you blocked out Woody).
One more possibility is that since this was a very early, if not the first, Woody Woodpecker cartoon, perhaps the copyright hadn't come through yet when they released it, and the character, in 1941, was still not copyrighted. I'll take the chance.

Paul Tauger · January 10th, 2008, 08:52 PM

I missed this thread earlier. Sorry.

Okay, I can't give you legal advice, so there's not a lot I can say here.

Copyright protects against unauthorized copying. By reproducing something that is not protected by copyright, then you haven't engaged in unauthorized copying and should not incur copyright infringement liability.

That said, I can imagine ways of using public domain material in a way that could infringe copyright.

Trademark infringement occurs when there is a likelihood of consumer confusion as to the source, affiliation or endorsement of goods or source due to commercial use of a mark. If there is no likelihood of consumer confusion in this context, there is no trademark infringement.

Dilution takes two forms. Dilution by blurring occurs when the source-identifying character of a famous mark (and Woody Woodpecker would almost certainly be a famous mark) is diminished by a non-confusing commercial use. Tarnishment occurs when a famous mark is brought into disrepute.

If a specific use of a trademark is neither tarnishing nor blurring, then there is no liability for dilution.

Yours is a fact-specific question and without seeing your project and knowing what you were going to do with it, there's no way to tell whether what you plan to do implicates copyright or trademark concerns. You really should consult an attorney.

December 30th, 2007, 09:43 AM	#1
Steve Siegel Major Player Join Date: Nov 2001 Location: Albuquerque, New Mexico, USA Posts: 839	Using Public Domain Material I am preparing a short DVD on woodpeckers. Since it's audience will be children, the cartoon character Woody Woodpecker, is a natural to use in it. Believe it or not, the 1941 Woody Woodpecker cartoon "Pantry Panic" is in the public domain. How it got there, I don't know, but it is. The character of Woody Woodpecker is surely not, however. How can one reconcile using clips from the public domain cartoon without violating copyright on the actual character? Last edited by Steve Siegel; December 30th, 2007 at 09:43 AM. Reason: typo

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December 31st, 2007, 07:51 PM	#2
Jim Andrada Inner Circle Join Date: Feb 2007 Location: Tucson AZ Posts: 2,211	This is a really interesting question and I'm surprised someone who knows something hasn't responded. I think it would be more likely that the character is trademarked and the films copyrighted, but this is just my guess. As far as I can find out by poking around the internet, this particular film is indeed in the public domain and as such can be freely copied. Again, I'm no IP specialist, but I think public domain is exactly that, public domain, meaning that anyone can use it or any part of it for anything they want. In which case using a clip from the cartoon as a lead in to your woodpecker video should be just fine. Where I think you'd potentially get into trouble would be if you copied the character out of one of the frames of the movie and used it as advertising for your business after removing it from its context. Particularly if you used the name "Woody Woodpecker" as part of your business name. I think this would be a major no-no. Again, these are just my thoughts and I'd hope someone with real knowledge of the IP biz would comment. I know nothing, just speculating.

January 10th, 2008, 08:11 PM	#3
Steve Siegel Major Player Join Date: Nov 2001 Location: Albuquerque, New Mexico, USA Posts: 839	Thanks Jim, I figured the same way, but just wanted to hear it from someone else. The only other way one could get into trouble would be if the cartoon were a derivative work on the original piece (the character). If the original piece were copyright, the derivative could be in the public domain til the cows came home, and you still couldn't use it (unless you blocked out Woody). One more possibility is that since this was a very early, if not the first, Woody Woodpecker cartoon, perhaps the copyright hadn't come through yet when they released it, and the character, in 1941, was still not copyrighted. I'll take the chance.

January 10th, 2008, 08:52 PM	#4
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	I missed this thread earlier. Sorry. Okay, I can't give you legal advice, so there's not a lot I can say here. Copyright protects against unauthorized copying. By reproducing something that is not protected by copyright, then you haven't engaged in unauthorized copying and should not incur copyright infringement liability. That said, I can imagine ways of using public domain material in a way that could infringe copyright. Trademark infringement occurs when there is a likelihood of consumer confusion as to the source, affiliation or endorsement of goods or source due to commercial use of a mark. If there is no likelihood of consumer confusion in this context, there is no trademark infringement. Dilution takes two forms. Dilution by blurring occurs when the source-identifying character of a famous mark (and Woody Woodpecker would almost certainly be a famous mark) is diminished by a non-confusing commercial use. Tarnishment occurs when a famous mark is brought into disrepute. If a specific use of a trademark is neither tarnishing nor blurring, then there is no liability for dilution. Yours is a fact-specific question and without seeing your project and knowing what you were going to do with it, there's no way to tell whether what you plan to do implicates copyright or trademark concerns. You really should consult an attorney.