Conducting a "due diligence" assessment of Harvey's assets -- making sure that no legal or financial problems could haunt the purchase -- Brown found a stinker.
After release of the movie "Ghostbusters," Harvey had sued Columbia Pictures in 1984, complaining that the cartoon ghost in the logo of Bill Murray's crew looked an awful lot like Casper's sidekick, Fatso. Columbia Pictures convinced a judge that a lapsed copyright had dumped Fatso into the public domain, ending the case.
For The Record
Los Angeles Times Saturday, August 23, 2008 Home Edition Main News Part A Page 2 National Desk 1 inches; 59 words Type of Material: Correction
Mickey Mouse: The headline for Friday's Column One on a copyright controversy over Mickey Mouse referred to a claimed "trademark" goof. In fact, it should have said "copyright" goof. Also, the article and a graphic caption transposed the name of the company that recorded the "Steamboat Willie" cartoon. It should have said Powers Cinephone System, not Cinephone Powers System.
Brown also discovered that Harvey had failed to renew other copyrights covering the company's ghosts. Casper was public property too.
Now armed with knowledge about the frequency and implications of copyright confusion, Brown launched a business venture exploiting some of that murkiness. He would market recreated animation cels from a 1933 Mickey Mouse short called "The Mad Doctor." Brown had discovered that the Disneys failed to renew copyright claims on that film.
But the Disney company sued so quickly that Brown never sold a cel. Although "The Mad Doctor" was indeed out of copyright, that long-ago oversight had not freed Mickey, whose ostensible copyright protection predated the short.
Brown lost. Worse, he was clobbered with a $500,000 judgment.
In the waning days of his case, Brown returned to the arguments of Disney lawyers who wrote that Mickey Mouse had been created by Walt Disney Co. in 1928. The former archivist knew that the company didn't exist then. He wondered: Whose name is really on the original copyright?
Brown was one of the few who knew that odds of a mistake were high. "Everybody screwed up copyright in the '20s, '30s and '40s," said Schechter, the author of several books on copyright law. "Under the 1909 act, courts were really insistent on formalities."
Brown went searching for flawed formalities -- and found one. It was on the title card at the beginning of a "Steamboat Willie" cartoon that had just been rereleased on a 1993 LaserDisc honoring Mickey's 65th birthday. It said in full:
A Mickey Mouse
A Walt Disney Comic
By Ub Iwerks
Recorded by Cinephone Powers System
For Brown, it was as if the glass slipper fit him perfectly. The key was location of the word "copyright" in relation to the name "Walt Disney." There were two other names listed in between -- Cinephone and Disney's top studio artist, Ub Iwerks. Arguably, any one of the three could have claimed ownership, thereby nullifying anyone's claim under arcane rules of the Copyright Act of 1909.
Welcome to the wonderful world of copyright law.
Brown leapt on the ambiguity, asking the court to reconsider its ruling against him on grounds that Mickey Mouse was out of copyright. But he was too late. Without ruling on the merits of Brown's arguments, the judge tossed it aside as untimely.
It was not the end. Debate over Mickey's copyright status simply changed settings.
Arizona State University professor Dennis Karjala, a Brown acquaintance, suggested that one of his law school students look into the claim as a class project. Lauren Vanpelt took up the challenge and produced a paper agreeing with Brown. She posted her project on the Internet in 1999.
Across the continent, a Georgetown University law student stumbled on Vanpelt's paper more than a year later. "I just came across it," recalled Douglas Hedenkamp. "I was intrigued."
Hedenkamp examined copyright registration forms at the Library of Congress. He went to UCLA's archives and watched old shorts, noting the same title cards. He agreed: They revealed an excess of ambiguity.
Today, title-card claims are no longer required. But when courts rule on historical copyright issues, they follow the laws in place at the time -- in this case, says Hedenkamp, the 1909 law requiring that the word copyright or its symbol be "accompanied by the name of the copyright proprietor" -- a rule scholars said means in the immediate proximity.
The authoritative legal treatise "Nimmer on Copyright" says that a copyright is void if multiple names create uncertainty, and courts have agreed. In 1961, a federal judge in Massachusetts cited the "accompanied by" rule in throwing out a copyright claim by newspaper cartoonist Art Moger. Moger's name was included in the title above his panels, but the name of another artist ran inside the boxes.
"The fact that [Moger's] name is prominently displayed . . . does not, by any means, rule out the possibility" that the other artist is the copyright holder, the judge wrote.
Hedenkamp finally wrote to Disney's in-house lawyers, an attempt to satisfy his curiosity. Had he missed something? Or was there really a problem with Mickey's copyright?
Disney legal advisors were not amused. General Counsel Louis Meisinger wrote back that it would be "inconceivable that any modern court would find any confusion about the identity of the proprietor of Mickey Mouse cartoons."