It’s eminent domain. And eminent domain is sui generis; the laws relating to real estate cannot be analogized to other property law. The total supply is finite, and the law reflects that.
Conversely, there are an infinite number of potential creative works, so there is no reason to treat them like land.
Kadmos1, would you care to explain how copyright and trademark apply to the Land Camera and its photos?
An example could be that you while could photograph the Life Insurance building (not sure the rules on commercial or non-commercial use), you could get slammed with a TM infringement were you to use it for insurance purposes.
A photographer has a right to take any photograph of a building that can been taken from standing in a public place, whether for commercial or non-commercial purposes. The owner of any copyright in the architecture of the building has no right to stop that.
What if the building has a big trademarked logo visibly emplaced on it?
(Obviously, some infringements of this sort are unavoidable: if the mere presence of a Coca-Cola logo made a scene itself trademarked, no one could ever use Times Square in a for-profit manner.)
So what if it did?
Before I go into any details, I’m curious why you think this offers any complication whatsoever.
Well, okay… I’m shooting an ad for Intel processors, showing a self-driving car going through a city, and, prominent in the background is a building with a Qualcomm logo.
Does Qualcomm have a grievance here? It’s just a city, right, with Coke billboards and a Fed-Ex truck on the same street, etc. But Qualcomm could argue that I could trivially have gotten footage just as good without a scene featuring their trademark.
So… That’s what I’m asking: do they have a valid point in law?
If it were unavoidable, like Times Square, that’s one thing, but if it’s avoidable, isn’t that another? It could give improper impressions, such as of Qualcomm’s approval, or of their technological inferiority, etc.
How big an image is too big? What if the Qualcomm logo fills the entire screen for eight seconds? What if one of the characters remarks on it? (“Say, there’s the Qualcomm building!”)
(Nowadays, when you see a logo in a movie or TV show, you generally assume they paid money for product placement.)
(I’m thinking, actually, of a particularly ugly Jack Chick comic book, attacking Catholicism as being demoniacal…using, as ordinary background scenery, the trademark of Andersen’s Split Pea Soup in Buellton – including Hap-Pea and Pea-Wee, their mascots. Does Andersen’s have a valid case – if they cared to at all – to demand this publication cease? It certainly gives an impression that they are sponsors of the comic book – which turns out not to be the case.)
Your question is really multiple questions, so I’ll try to hit a few points and see if they help:
Someone who puts something out in public where people can see it doesn’t have any valid complaint when someone puts a camera in that place and people can see it.
People who make movies or TV shows or novels or comic books or photographic images or any other expressive work are free to show or mention or use any branded product without permission. If people assume that they have paid for placement, they’re wrong to assume that.
If DC Comics authorizes the sale of a Batman T-shirt, then Big Bang Theory is allowed to show a character wearing the T-shirt, no permission necessary. Even when the trademark owner objects to the specific use of the item, tough luck.
This was borne out in Caterpillar Inc. v. Walt Disney Co., in which Caterpillar objected to the showing of the villains in George of the Jungle 2 using Caterpillar-branded heavy equipment to commit dastardly deeds. Hey, Caterpillar, you make bulldozers; the bad guys are using bulldozers; Disney can show your logo on the bulldozers. There was no trademark infringement. There was also no commercial defamation, because the show didn’t imply that there was something wrong with the bulldozers.
So your Qualcomm example might offer an interesting law school exam question—why is the Qualcomm logo appearing for so long in a car commercial? Is it intentional? But ultimately you’d have to come up with a pretty convoluted and unlikely scenario for such a commercial for it to be much of a case.
The Jack Chick example is much easier. No, Anderson’s Split Pea Soup Co. has no case. Jack Chick can show whatever branded goods he wants in the background or foreground of his scenes. Just appearing doesn’t imply sponsorship.
LOL if you think The Rodent will ever be public domain, Disney is pretty much the driving force behind US copyright law. Every time Steamboat Wiliie’s copyright gets close to lapsing, Disney’s lawyers/lobbyists convince congress to change the law and extend the term.
Not really, no.
LA-Based Latham & Watkins and Chicago-based Baker McKenzie are 2 law firms that each have over $2.6 billion in revenue. This makes them the most profitable of all law firms. If these 2 prestigious law firms were going to challenge how trademarks do act as perpetual copyrights, the Court of Appeals and even SCOTUS might be willing to hear that argument. A regular person like me convincing an attorney from each law firm to take up the “Steamboat Willie” copyright issue would require back-up letters from long-time and respected copyright experts.
Please, write to them and present your case. Let me know when you have done so and I will make inquiries with trademark and copyright lawyers at those firms and ask them how your letter was received.
Acsenray: Cool! Thanks! I didn’t know about the Caterpillar issue in GotJ2, but it’s very similar to the Andersen’s example with Jack Chick’s comic. My “gut instinct” would have been that this was improper use, but if not, okay. That’s why I’m not a judge!
Now this does make me think naughty thoughts. So, okay, I write a novel titled “And the Theater of Doom!” and the cover art is a photograph of an actual theater, where, prominent on the marquee, is the movie they’re showing right now, which happens to be “Tarzan.”
But, as you can see, I’m stretching!
This is a popular myth, spread by anti-copyright zealots because Disney has become a huge faceless corporation that people seem to hate even while given them huge piles of cash every day.
It is not in any way true. Disney certainly wants to protect its copyrights and supported the 1986 Copyright Act. But so did lots of other copyright holders. And the real impetus for the extension of copyright then was to sync up our terms with those of the European Union.
Does any one company have the power to change copyright length? I’d studied the subject for decades and I say absolutely not.
And that is a hypothesis subject to confirmation. In current law copyrightable materials produced since Jan. 1, 1923 are protected (unless they earlier passed into the public domain for various reasons). That protection runs out after 95 years. I.e, anything and everything from 1923 will move into the public domain on Jan, 1, 2018. Steamboat Willie, which was made in 1928, will go into the public domain in 2023. If the Dope is still active by then we can see which one of us is right.
Remember that even if that individual cartoon goes into the public domain, Disney still retains trademarks on the characters and copyright on characteristics introduced after 1928. (Read the whole thread.) Disney has virtually nothing to lose by letting its earliest work slide into public domain. They are making only a few dollars on Steamboat Willie. The corporation grossed about $55 billion in the last fiscal year and freaking half of that was gross profit. They literally don’t need to care.
Stop using your “gut instinct.” Think about the definition of trademark infringement.
A use in commerce (a “use in commerce” is NOT any “commercial purpose” — it is the use of the mark as a brand name for goods or services)
Of a mark that is identical or sufficiently similar to a valid trademark (distinctive, etc.)
In which someone else holds exclusive rights (bound by geography, type of business, etc.)
That is likely to create confusion
As to the source or origin (or sponsorship, affiliation, etc.) of goods or services
Among relevant consumers.
Apply these elements to your Jack Chick example. It fails on the very first requirement. There is no use in commerce of the trademark.
The only possible actions you have are trademark dilution or commercial disparagement.
Dilution is where you might have a case. The elements of a dilution claim are
Use in commerce
Of a mark that is identical or sufficiently similar to a valid trademark (distinctive, etc.)
That is FAMOUS (we don’t know exactly which trademarks are famous, but we do know that not all trademarks are famous)
That tends to damage the unique relationship between the mark and its owner (“blurring”) or tends to harm the reputation of the trademark or its owner through association with unsavory things (usually sex or drug related) (“tarnishment”).
Caterpillar also lost on its dilution by tarnishment claim because the court found that any unsavory activity taking place in the movie was obviously the fault of the villains and not the fault of the Caterpillar bulldozers they were employing.
Exapno Mapcase, while Disney is not the only term extension driving force, they are probably the most singled out.
Thank you. I was hoping you would step in on this one.
Do you mean the Sonny Bono Copyright Term Extension Act of 1998? Or the Copyright Act of 1976?
Exapno just explained to you why this is a fallacy.
And in addition to everything Exapno said, let me add this:
The legislative process that resulted in the Copyright Act of 1976 began in earnest in 1961. It took 15 years to pass and it was enacted 67 years after the prior comprehensive reformation of U.S. copyright law, the Copyright Act of 1909. And the biggest impetus for its enactment was the U.S.'s accession in 1952 to the Universal Copyright Convention and its anticipated accession to the Berne Convention for the Protection of Literary and Artistic Works, which finally happened in 1989.
The legislative process that resulted in the CTEA (the so-called “Mickey Mouse Copyright Protection Act”) started in 1993 with the European Union’s adoption of the Council Directive 93/98/EEC Harmonising the Term of Protection of Copyright and Certain Related Rights. It took five years, and its principal impetus was to harmonize U.S. copyright terms with Europe’s.
In March 2013, Maria Pallante (then the register of copyrights) called for a comprehensive reform and modernization of U.S. copyright law in the manner of the 1976 Copyright Act. Robert W. Goodlatte (R-Va.), the chairman of the House Judiciary Committee, took up this suggestion, declaring his intent to thoroughly reform and modernize U.S. copyright law. He held 20 committee hearings and numerous public roundtable discussions around the country addressing every issue of concern current in U.S. copyright law.
Guess how many of them involved discussing increasing the length of the copyright term beyond that set by the CTEA? Zero. Four years later, Goodlatte has introduced his first bill from his ongoing study into reforming and modernizing U.S. copyright law. Guess what it’s about? If you guessed “it’s not about increasing the length of the copyright term beyond that set by the CTEA,” you’re right. It’s about making the office of register of copyrights a presidential appointment with a term of 10 years confirmed by the Senate, rather than a position filled or emptied at the whim of the librarian of Congress.
Guess when Disney’s oldest copyright related to Mickey Mouse expires? Next year.
At a time when every single piece of copyright-related legislation is under intense scrutiny of the public and of IT giants like Google, what do you think the likelihood is that any further extension of the copyright term is going to be proposed or enacted, whether supported by Disney or not?
Do you understand how jobs work?
I mean, asides from ignoring what everyone is telling you about trademarks vs. copyright, these firms do work for pay. They don’t take up causes. The law firms with the greatest revenue are mostly likely to have the least amount of time for frivolous activities. That is how they become rich and how they maintain a large revenue stream.
And the people on the board of Edgar Rice Burroughs, Inc. Tarzana, are doing a job, where they are legally required to look out for the interests of the corporation.
So what? If ignorant people make ignorant claims, they should not be supported just because many ignorant people exist.
I meant both and conflated them. Thanks for correcting this.
The 1976 Act effectively made everything published after 1922 in copyright and put on a time limit of 75 years, so that 1923 items would enter public domain in 1998. In 1998, the Sonny Bono Act extended that time limit to 95 years. That’s the reason people coughLawrence Lessigcough blame Disney.
But the European Union had again moved ahead of us, signing law in 1993 adding those 20 years. The copyright extension was essentially a trade agreement with our largest trading partner, one wanted by all commercial entities in the U.S. It was passed in both houses with a voice vote, meaning overwhelming approval.
Acsenray, where do people get the idea the earliest Mickey Mouse shorts expire at the end of next year? The original 2 shorts date to 1928. Under current copyright laws, that would mean it expires 12/31/2024.