A new copyright and trademark law for a new era

Great Debates
1

So with the advent of the internet, copyright is more or less broken. The DMCA both more or less allows corporations to bully internet content creators completely under fair use, and yet also doesn’t get them nearly as much money for their work as they want.

So the question is, how do you propose we fix copyright and trademarks? Or do we just fix enforcement?

My (likely monumentally stupid) idea is this:

Strict redistribution for free or pay is illegal (obviously), this means that outright piracy is still illegal. What constitutes “strict redistribution” is up for debate, but essentially it’s something that adds absolutely no original content (see below) to the work. This means that taking a song and putting it over a black background is illegal.

Original Content is defined as anything that adds something to the work or changes it in some significant manner. This means that covers and remixes are okay, as is “adding content” in the form of MST3king. This also means that creating your own music video is okay, including if the footage of the music video if from a property you do not own. Obviously discretion is needed, taking the first 5 minutes of a TV show and pasting music over it isn’t okay, no effort was really needed. Some sort of effort must be clearly involved, such as editing a show and putting music over it to make the show sync or otherwise reflect meaning in the song.

For content such as video games, making a video or series of pictures containing nothing but gameplay (i.e. no commentary) is okay, HOWEVER, it must include gameplay, simply posting pre-rendered cutscenes are not okay (though cutscenes may obviously be included).

I’m not sure how to deal with non-entertainment software right now. My knee-jerk reaction is to say that it must include “significant modification” to be redistributed.

Original Content is not banned from being charged for or making a profit, HOWEVER, a percentage of the revenue goes to the companies where the work or trademark originated. I will admit I’m not sure precisely how to define this right now, my two ideas are: companies must define a “fair” (under 10%, maybe 5% I’d say) percentage of profit (or percentage for different cases, such as income brackets) for use of their work. The other idea is that percentage is based partially on the amount of the work that uses it (meaning a 2 hour movie that uses a 3 minute song pays less than a 3 minute video with the 3 minute song all the way over it), but the latter, while potentially more “fair”, is hard to determine and negotiate. This is NOT absolute, no matter which option is picked, companies or content producers may contact the business to negotiate a different percentage, or even a flat fee.

Note that with this system FREE adaptations do not have to pay, only works where somebody is making a profit off of it.

Finally, and most importantly, all things adapted MUST be credited in a reasonably unambiguous manner (meaning “The Dark Knight” is okay, but “that one Batman movie” is not), and it MUST be CLEARLY stated that you have no affiliation with the source company if you are not an official adaptation, this is to prevent confusion with the source material and prevent poisoning of the brand by unlicensed adaptations.

Note that I did not make any special provisions for satire/parody. This is intentional, this is for everybody, no quibbling about whether it’s “technically” parody or not. You use the work, you turn over a percentage of your proceeds directly related to use of that content, period. The only thing I’d consider waiving the rule for is reviews, critical analysis, and objective news reporting on the content (i.e. “meta” uses of the content, works that address the content rather than use it).

The reason I like this is that it allows creative content to flourish on the internet, but still gives companies money from people making something on their ideas. I’m not going to say there aren’t major issues with my idea, but I do like it in broad concept, not that anybody would ever consider passing it.

What other ideas do you guys have for fixing copyright (or its enforcement)?

2

Missed edit: Note that “made with” something is not the same as “created from” something. This doesn’t apply to things created with Photoshop. It would only count if you substantially modified the software itself and distributed the mod.

3

The problem I see it is continuation. I don’t see any reason why dead people’s images are subject to trademark and copyright etc.

A work of art should be protected for the life of the author or a set number of years (say 25) if there is more than one author, then it slides into public domain.

If people want to profit off their dad’s work then the father should take out a huge life insurance policy to provide for future generations.

The real problem with the Internet is it has shown people that the West isn’t all that counts anymore. I can create a work and have it subject to American law but if someone in Zimbabwe wants to use it, what am I going to do about it?

Then that work I created gets redone and fed back into America.

The Internet really has changed how the world works

4

I’ve long felt that there needs to be some “use it or lose it” provision. The point of copyright is to encourage people to make and release things instead of keeping them trade secrets like the old days; not to keep copyrighted matter outright legally unavailable indefinitely. For example, over 70 percent of American music recorded before 1965 is not legally available in the United States.

If the owner is unwilling to use the copyright, then it should lapse.

5

Saying that some things are absolutely illegal is troubling. Do you deny that creators/copyright owners should be able to give up certain rights using a license? Do you think there are any rights that the creator should not be able to give up?

6

Oh, of course a copyright holder can abdicate all rights if they wish, or even a portion of the rights (i.e. free to satire/parody, which would be judged solely by the company’s legal team). I’m setting what is, effectively, a maximum barrier, a statement from the holder can, if they wish, say “go ahead and give this to anyone you damn well please without any attribution or royalties from now to forever.”

7

I agree the lengths of time copyright lasts now is just outrageous. Patents work perfectly fine at 20ish years. I recognize that some authors would be screwed over, such as if a movie was made using your book or using your music after 21 years. Ok, you can have copyright for commercial uses for longer.
I’ve always disliked how copyright restricts derivative works. Look at Star Wars. Sure, George Lucas owns the copyright on those movies, but why does that prevent someone from making another Star Wars movie? Copyright should protect his dialogue, and the literal images on the screen, but if someone thinks they can make a better star wars movie than Lucas and make money, have at it. Its not like people weren’t going to go see the prequels and get the real story, and the competition may have made him step up his game.
Next item… The ‘have your cake and eat it too’. Software is protected by copyrights. And, somehow, patents, even though its just a very specific language telling a computer what to do. AND its perfectly legal to obfuscate it with encryption and clever programming. AND Its perfectly illegal for people to try to crack that ofuscation, except in specific circumstances. You want copyright/patent protection? Fine. I want access to the source files then, so I may freely modify my purchase at will.
On the topic of software patents… They really, really need to raise the bar on those. There is literally no bar now. As it stands if you program for more than 5 minutes you’ve undoubtedly violated a software patent.
Disclaimer: I am an expert in nothing and just think of these things when the lights go out at night. Any use of these ideas would undoubtedly have disastrous consequences and/or cause sterility and gnashing of teeth

8

Unfortunately, Congress is currently discussing going the other way, making copyright stronger. The fact that they have to corrupt the Internet to do it shows how desperate the rights holders are. But, for once, it seems we’re actually fighting back.

9

…I think we should start here. I disagree with your basic premise. Perhaps you could start by laying out some real world examples of exactly what is wrong with the current system of copyright? I am a photographer and your proposed changes take away my rights as a content producer. Why would I want to do that?

10

I don’t get this. Currently the pirates break the law and pay nothing. If you ask them to pay 10%, they’ll still just break the law and pay nothing; they’re pirates. I can’t see how this will change anything.

I’ll have to disagree with that one, too. These different versions will poison the brand, whether you add a disclaimer or not. People associate stuff with what they see, not with the attached legal text.

11

I, personally, consider “piracy” and “derivative use” completely separate things. The fact is, many completely original, wonderful, completely creative works are “piracy.” Calling all these mashups, remixes, tributes, and other things “piracy” is calling a collage made out of magazine clippings piracy. I argue the current definition is broken simply because the internet has shown that there is inherent artistic value in this art that shouldn’t be stifled simply because an artist wants to keep tight control over their work. You release your idea, it’s free for everyone to use, but to keep art in the realm of moneymaking, you still get paid if they get paid.

Yeah, I’m sure a few small fish will escape without paying, but there’s so much content dancing the line right now that makes real money (there’s been arguments about whether a lot of thatguywiththeglasses.com aka Channel Awesome technically falls under fair use or not, for instance) that I think saying “okay, you’re in the legal clear, you can breathe easier now, but you owe something to the other people involved in enabling your work” would allow art to both be more profitable for the creator and publisher, and more fair to the public, and I think most of the larger companies that currently dance the line would be willing to pay a tad to more or less ensure legal protection.

I also think there’s simply too much good derivative art out there on youtube that shouldn’t need to be paid for simply because they’re providing the content for free. Again, they have to put EFFORT into the video, play the song in a meaningful drama skit, something, they can’t just redistribute it willy-nilly.

The problem is that right now there’s barely any difference between what I’m talking about and what actually happens. Most fan followings on the internet have tons of fan made videos, images, commentaries, whatever that’s technically illegal but doesn’t do much other than advertise the show for free. Some of it is shit, but nobody would ever mistake fan adaptations for official ones.

Yes, under what I proposed you could get more high profile stuff, and I’m sure occasionally something would happen like a glut of shitty Spider-man movies, but I think with a disclaimer people would judge the individual film on its merits as a film, not based on the franchise it comes from. It’s not like every crap fanfiction writer has a Hollywood budget, nor does the law say that theaters have to distribute any film some indie filmmaker creates, in the “blockbuster tier” you probably won’t see much different than you see now except for a small hiccup now and then. Besides, we already have the problem where for every Transformers there’s a crappy “Transmorphers” movie, I don’t think allowing them to call it Transformers would make people hate Transformers, they’d just think “what a shitty adaptation, I’m not paying for this” and for the people that DO pay for it, rather than the obvious ripoff not paying a dime, the brand name they capitalized on actually gets a cut.

12

Like Robin Hood was poisoned by multiple films? Frankenstein? Dracula? Sure there have been bad versions each. But also good ones. And even some satires.

The new batman movies are brilliant. Sure, someone may have made a knockoff, but that wouldn’t poison Nolans movies. They would still be brilliant. All that would happen is the knockoffs get scorned. On the other hand, something even better could be created that might require the original creator to step up their game.

13

I was going by your post where you said original content should be resellable for a 5% fee. Not mashups, remixes, or tributes.

So you say to the people currently illegally distributing it without paying anything “hey, why don’t you pay 5%”? And they’ll say “no thanks, we’ll continue distributing it for nothing”.

14

But those aren’t brands owned by anyone. Nobody owns the Robin Hood brand.

I don’t believe that would be the case. It wouldn’t be “someone may have made a knockoff”, it would be “the market is SO saturated with thousands of knockoffs that the average person doesn’t really distinguish any more”.

C’mon. If everybody could happily make Batman stuff and sell it, every geek out there would give it a try. Batman is so popular not just the movies were good, but because millions and millions have been spent over the years developing the brand.

Don’t get me wrong - I don’t think the system works well as it is. I just don’t think the two proposals I addressed would fix it.

15

Mashups, remixes, and tributes ARE original content? I don’t understand what you’re getting at.

16

…you still haven’t explained what is broken: or what I would get out of this as a content provider.

Right now I set the prices for my work. Under your system the price for the use of my work will be determined by some arbitrary system. How does that benefit me if it doesn’t cover my cost of doing business? How does my work getting credited pay my bills?

I’m about to spend six thousand dollars upgrading my equipment. On a photoshoot I can spend a couple of hours planning, a couple of hours shooting, and up to ten hours processing the images. I shoot in my own style, with subtle differences in ISO, f/stop, shutter speed and framing contributing to making those images unique. I choose what to do with those images after they are shot. Sometimes I choose to share those images. Sometimes I sell them for stock. Sometimes I might sell them to a client for exclusive use for substantially more money than stock.

But under your system you take the right for me to choose what to do with my images away from me. How can I sell a company an exclusive image under your system? Thisis one of the consequences of what you are proposing: only you will see it much more often without any control. You take away a company’s ability to create a unique brand.

The system isn’t broken. I’m open to the possibility that there are things that could be improved, but you started your OP by saying that copyright is more or less broken but you haven’t proven that yet. You are arguing I should give away control of something that will cost me thousands of dollars to produce to people for free: why would I support that system?

17

Unique brands shouldn’t exist, that’s more or less my stance. If a bunch of businesses want to use the same image it’s their loss for not being unique, and their fault for getting confused with other companies using the same marketing image. And of course, the original source will always be known because of attribution requirements.

However, if they use your image to advertise and draw attention to their product, then you’re entitled to a cut of the revenue of the product they advertised with your images. You’re only giving it away “for free” if they’re using it for a purpose that makes no money. If they use it in an article they get ad revenue from, you get a cut of the ad revenue.

Of course, they can contact you (or vice versa) and you can negotiate a one time flat fee for the image, or a different percentage rate, or you could even sell the image to another company as stock with a transferable license saying if a site pays for a subscription to the stock repository, they get your image without having to pay you a cut of their work (rather you’d get money from the stock company based on whatever terms you agree to, flat rate, number of uses, whatever).

The system is broken because it stifles a lot of creativity, and allows larger companies to bully smaller ones by launching very shaky copyright claims with questionable merit. People shouldn’t have complete control over their ideas, if you put it out there, others should be able to use it. I may not have agreed with this notion had the internet not proven to me that truly wonderful things can be derived from intellectual properties not owned by the creators.

18

I know. If someone did, we wouldn’t have had all these different interpretations of the story. We certainly wouldn’t have had a wonderful parody movie lampooning the rather awful big budget release the year before.

19

As an artist myself, I would be comfortable with a system that merely ensured that others were not directly profiting off my work. Distribution is one thing, (seriously, how arrogant do you have to be to not like the idea of people spreading your work around), making money off it is another entirely. To use an example, say I’m playing a small local show and perform a cool acoustic version of one of my songs. A few months later, I manage to get a record deal and the same song, (plugged, studio version), becomes the radio friendly single. I have no problem with someone releasing the acoustic recording they made on their phone so long as they are not charging for it. I’m a big boy, I can do another version in studio, or get a recording made of an 'unplugged" live in whatever city. Trying to hold onto work you put directly out into the public sphere for consumption is silly.

I’d suggest the following limitations.

Music: 25 years. In the case of an artist dying before the copyright would have expired, it shall extend not more then ten years from the date of the artist or until the 25 year limit is naturally reached if that limit is under ten years. Upon the death of an artist, the copyright becomes the sole property of the family of the deceased. They may use the work as they wish until expiration of the allotted timeline. They may not strike new deals to re-protect a work.

Cinema: 25 years. This extends only to the cinematic content of a film, or those characters created expressly for the purposes of film who do not have prior existence outside cinema.

Written work: See music. Tributes, fan-fics, and fan films, and other not for profit uses of an author’s protected content are exempt. Additionally, understanding the long lifetime of such work, the author may renew the copyright holding the protection against for profit uses until their natural death. If the copyright has expired during the lifetime of the author and has been renewed then it is not transferable to heirs.

Visual arts/ fine arts: These works have no protection from use in parody, or not for profit fan or artistic derivations. The artist retains rights over direct reproduction of their work as well as for profit uses of all types until their natural death. It is not transferable to heirs.

Software: I do not know enough about this to make what I’d consider a fair review.

20

OK, I’ll try to be clearer.

You write and perform a song. I buy a digital mp3 of it from you. Then I put it on my website and sell a thousand copies. I’m selling it cheaper than you, so nobody buys it off you any more.

As I understand it, you’re saying that’s OK as long as I give you 5% of my profit?

If that’s the case, I disagree that those who currently would put your song on their torrent sites illegally would suddenly start paying you 5%. They’d continue doing exactly what they were doing.