The New York Times casts its spotlight on the “Censored 11,” 11 racially-charged cartoons from the middle of the last century that have been unavailable to the public for decades. But despite repeated attempts to take them down, they keep popping up online. You can see some of them here, and the most notorious is “Coal Black and the De Sebben Dwarfs,” which as you can imagine from the title is pretty offensive:
Preventing people from watching them seems pretty silly to me. I wouldn’t want them on heavy rotation on the cartoon network, but people are entitled to know about their history, and I doubt letting people see them will cause anybody to be more racist. But this creates a dillema for Disney and Warner Brothers. If they release them in an official capacity, they’re opening themselves up to a lot of negative publicity and highlighting a part of their past they’re probably not too proud of. This wouldn’t be a problem if we didn’t grant copyrights for such absurd lengths of time. If we had the rules on the books at the time most of these videos were made–28 years, renewable once–then all films made before 1952 would now be in the public domain, which would encompass the vast majority of these cartoons. That would allow the studios to officially disavow any support for them while allowing people to view them.
It’s an interesting question whether putting these films on YouTube could constitute fair use. The fact that the entire work is being shown obviously strongly cuts against it with regard to the third factor. However, the second and fourth factors would cut strongly in favor of fair use—there is no commercial market, and the work is of particular historical importance. As to the first factor, one could argue that the cultural climate in 2008 is so different from the climate in 1935 that the act of showing it in 2008 has a fundamentally different “purpose and character” than when it was first shown, thereby rendering the simple act of showing the video, at least on a non-profit basis, transformative.
Update: OK, this one is even worse.