During a time when Disney's copyright protection over some of their most classic works is either nearing an end or has already ended in certain countries like Canada, it may seem oddly coincidental that Disney has begun to create live action remakes of many of their most iconic films.
A simple answer to the question of whether these live action remakes extend the copyright of Disney's original animated movies is that, absent true changes to current Canadian copyright laws, such as those that were recently passed under the Canada-United States-Mexico Agreement (CUSMA), copyright cannot be extended. However, a fuller answer is a little more complicated. The effect of Disney creating new versions of old designs, or adapting storylines based on their older material, is that newer versions of characters or altered plots created by Disney attract their own brand new copyright protection that will continue once the copyright protection over the animated originals has expired. Continue reading to learn more about how Disney can benefit from Canadian copyright law through their live action remakes, even when their copyright over their original movies and designs end.
CUSMA and the Extension of Copyright
The term of copyright in Canada has recently been extended to the life of the author plus 70 years as part of the implementation of CUSMA, which means that a work ceases to be protected by copyright at the end of the 70th year following the author's death, even if the author is no longer the owner of the copyright. The necessary amendments, which can be found in Bill C-19, the Budget Implementation Act, 2022, No. 1, have received royal assent and are awaiting an Order in Council. These changes will soon be reflected in the Copyright Act. Such an amendment to the Act is the only way in which copyright can be extended. Individuals who own the rights to trademarks can extend the protections over their creations by renewing them after the protections expire, but once copyright protection of a work expires, that work becomes a part of the "public domain" and may be used by anyone according to copyright law.
CUSMA's term extension is not retroactive, which means that the works whose copyright expired before the implementation of the new term extension will remain part of the public domain, including some of Disney's older creations. However, works that would have expired in the next few years under the previous Canadian copyright term will now enjoy an additional 20 years of protection. Despite this extension, regardless of what companies like Disney want, those works that would have expired in the next few years will eventually become part of the public domain, unless further amendments are made to Canada's copyright laws.
Copyright Benefits of Disney Remakes
So, if the only way to actually extend copyright in Canada is to change the law, is it beneficial in any way from a Canadian copyright standpoint for Disney to be remaking their original animated movies?
The answer is yes, there are some benefits.
Disney's live action remakes are not technically extending their copyright over their animated films, but they are providing Disney with new copyrightable material that may eventually replace their old works in the public consciousness, especially for younger generations who will have watched the live action versions in the theatres and may not be as familiar with the animated versions. By the time that many of the animated characters and designs become part of the public domain in Canada, especially after the lengthy CUSMA term extension, it is possible that the newer versions will be the most recognizable and popular.
New storylines that were not present in the original animated movies and significant enough changes to the iconic characters and designs through the live action movies will attract their own copyright protections that will continue until 70 years after the death of the last surviving author of the new work. Individuals seeking to use the publicly available elements of the original Disney movies will have to be cautious not to use any of these new copyright protected parts of the live action versions.
In fact, the use of elements of animated Disney movies that are different from, but still somewhat resemble, newly copyrighted parts of the live action films could prove to be a challenge. Such usage could lead to a scenario where Disney could claim that the use is clearly imitating, and therefore infringing the copyright of, the newer movie rather than imitating the publicly available original movie. Such claims may not necessarily prove to be valid, but the possibility of incurring a lawsuit against a juggernaut like Disney may not be something the average person would want to risk.
However, despite this challenge, if an individual seeking to use Disney's publicly available works is careful not to use any parts or designs that appeared solely in the live action remakes of said works, the fact remains that Disney would not have the power to use Canadian copyright law to stop them from making use of what exists in the public domain.
The Additional Trademark Issues
It is significant to note that, regardless of whether the copyright protections that Disney has over their movies, characters, and designs have expired, Disney will continue to have protection over their works through their registered trademarks. As previously mentioned, trademarks can be renewed every 10 years in Canada, so Disney can essentially protect their works indefinitely through trademark law.
The trademarks that Disney has over their animations can prevent anyone from using their distinctive designs in a way that would make the public think that the product or use of the design came from Disney. The purpose of a trademark is to distinguish a good or service belonging to the trademark owner from the goods or services of others. This means that if an individual were to use one of Disney's trademarked designs in a way that could create confusion and cause the public to believe that Disney is associated with their product, Disney can stop the individual's use to protect their brand, even if that design is part of the public domain for the purposes of copyright.
Ultimately, copyright protections in Canada are incapable of being extended unless the law itself is changed, so Disney's live action remakes are not in any way allowing them to maintain copyright over their animated works past those animated works' copyright expiration. However, the live action remakes are allowing Disney to create new storylines and designs that do attract separate copyright protections that individuals will have to avoid infringing when they make use of the animated storylines and designs that are part of the public domain.
Finally, if an individual is looking to use parts of Disney's animated films because they are in the public domain and therefore not protected by copyright, they will also have to ensure that they remain well-informed of the trademark legal issues that could come with such usage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.