I classify retroactive copyright as a civil offense in that it violates ex post facto (which says Congress cannot do ex post facto) and illegal in the sense of TM acts as a perpetual copyright.
Can you please critique this letter to the estate of Tarzan's creator? Long posts before the letter.
This used to be true but the estate finally lost Klinger v. Conan Doyle Estate, LTD. The best summary of the case I could find is here, but all we really need is the conclusion:
Note that this was an actual copyright case. Trademark was not addressed.
I was curious about the claim the the Burroughs’ estate is legally preventing others from use of the characters. Turns out that the estate and distributor Dynamic Forces settled the suit so no legal precedent was established.
And almost certainly won’t be. Who thinks so? Stephen Carlisle. Yep, that’s the guy cited in the OP. His conclusionon the subject?
Excuse me?
It’s also quite blatantly wrong in terms of how the law works.
The thread isn’t “here’s what I think the law should be”, but rather “here’s what I think the law is”.
Yes, and, despite the amount of time he spends insisting that the law says that it’s illegal and this and that, his opinion is wrong on the law & his demands that ERB “let go” have no basis in reality outside of his opinion.
Because he didn’t get it the first time and kept insisting that Trademarks are a means to extend Copyright protections, even though that’s not, nor has it ever been, true.
There is no “validity” to his opinion until Congress changes the law or the Supreme Court reverses itself.
Again, the thread isn’t “here’s what I think the law should be”, it’s “here’s what I think the law is”.
I classify retroactive copyright as a civil offense in that it violates ex post facto (which says Congress cannot do ex post facto) and illegal in the sense of TM acts as a perpetual copyright. clairobscur, while I am not sure how I misused copyright, thanks for being someone who finally gets what I have been trying to say. For the trademark thing, while a work is copyrighted, I can see the TM being legal. But when a number of books in a series expire or all the works of a series by an author expire, so do the TM.
That seems to be about plotlines, rather than characters–as you say, it’s a Copyright, rather than Trademark, case.
Unless I’m misreading it, it doesn’t invalidate Broomstick’s point (assuming that CDEL does, in fact, own the Trademarks & did prior to the works in question).
Still no basis in law.
Bolding mine.
ARE YOU EFFING KIDDING ME?!?!
I’ve explained to you, repeatedly, in plain & simple English, how Copyright doesn’t mean what you think it does–and you still insist that you’re using the word properly?!
I’ll once again refer you to my “Fuzzy Bunny” example to illustrate, once again, how that’s a nice thought, but factually incorrect.
Missed the edit window, but I also want to point out that practically everyone who’s commented knows what you’re trying to say.
Just because someone thinks (or, in this case, knows) that you’re wrong, it doesn’t necessarily mean that they don’t understand you. Sometimes, like in this instance, it just means that you’re wrong.
Trademark act as a perpetual copyright in the sense it can bar you from using a character name in the title even when all the books an author wrote in a series have lapsed their copyrights.
No, the case was almost entirely about characterization. The estate wanted to insist that as a “round” character any depiction of him from any point in the saga contributed to that whole and therefore any use of any part of them was in violation. The court said that writers could use his mannerisms from any work before 1923 - which, in reality, is everything anybody in the world thinks of when they think of Holmes - because they are in the public domain.
How do you believe laws get made? How did you arrive at your understanding of what ex post facto laws are?
Hooray! We finally found the sovereign citizen of intellectual property.
Kadmos1, I, for one, eagerly anticipate your forthcoming treatise on how design patents are a violation of the emoluments clause because iPhones are regulated by the FCC.
Bolding mine. And me too, as a fan I realize he wasn’t going to win any prizes. But he did something the OP is clearly incapable of doing, he actually wrote. He made money at it, and laughed all the way to the bank.
And several of his works were obviously inspired by the works of others, an idea the OP is obviously also unwilling to try. Remember The Mad King? Where do you think ERB got that idea?
The OP probably doesn’t know, since they’ve been too lazy to read the Tarzan novels, that Tarzan’s name has a meaning in the ape language. Or that Tarzan’s first human language learned was not English. All is knows about Tarzan is that using the well known work of another might be able to make him money.
Let’s try this again:
Copyright doesn’t prevent you from using a character’s name in a title or in the text of a book.
Therefore, any protection that prevents such an action isn’t extending Copyright.
I really don’t know how to make this any clearer.
I consider that to be in the “plotlines” category.
I’ll explain:
Trademarks are very narrow.
As was suggested up thread, the OP is free to write a story about a man from the jungle who yadda yadda yadda–as long as he doesn’t imply that the man is “Tarzan”.
Boy wizard = OK
Boy wizard named Harry Potter = Bad
Broomstick’s point was referencing the latter, not the former. That’s governed by Trademarks.
One is free to write about a detective who looks like Holmes and acts like Holmes, even taking pieces from the public domain “Holmes” works, as long as they don’t insinuate that the man is Holmes (again assuming that CDEL owns the Trademarks).
What Broomstick was saying is that permission would be required for the OP to write a story about Tarzan, as they seem intent to do, rather than a story about a Tarzan-like man. The case you cited only clarified the legality of the latter, which, as you pointed out, wouldn’t require permission.
Bricker, I guess I arrived at the understanding of ex post facto by reading copyright critic blogs like Techdirt and by looking at the Latin meaning of it (“out of the aftermath”). Having a retroactive effect (term extension) means an after the fact effect, hence it violates that part of the Constitution.
Except that, as Bricker (I believe) already explained to you, that’s not a thing in the context you’re using it.
You can’t use the Daleks either, any more than Tarzan. The Daleks are trademarked and copyrighted, too. Even the recent Lego Batman movie wasn’t allowed to call them by that name.
OK, but having a TM acts as a perpetual copyright in the sense that even if all the copyrights expired, they still have a grasp on it.
I thought about it and I want to elaborate on this, since I think I did a poor job of explaining above.
Copyrights, as I mentioned up-thread, deal with issues of plagiarism or piracy. Trademarks are about brand purity.
Using the Harry Potter example, you can write stories about a boy wizard. Once you name that boy wizard “Harry Potter” though, you’re creating issues with implied endorsements and standing to potential tarnish the actual Harry Potter brand. Same goes for if you imply, without stating, that the boy wizard is Harry Potter–the law doesn’t draw a distinction between what the audience thinks on their own & what you spoonfeed them, though there is a reasonable leap type standard. This is why costumed character companies can’t, despite what most seem to think, provide you with a “Toy Cowboy” (Woody) character, even if they only call him “Toy Cowboy”.
However, your boy wizard who is clearly not Harry Potter can’t do the things Harry Potter does in published works, because that’s a plagiarism/piracy issue (that can be either adventures or mannerisms–hence why I referred to the characterization as “plotlines”) since the works are Copyrighted. Same goes for your story about a train conductor or police officer–it’s about using someone else’s Copyrighted writing, not about potentially tarnishing a brand. That’s why it’s not related to the issues of using the Trademarked character “Harry Potter”.
Once the works enter into the public domain, your boy wizard/train conductor/police officer can do those things, since the works are no longer Copyrighted and free for anyone to republish or build off (to an extent*). This is what was reaffirmed in the suit you referenced.
*This is the big point that people miss: the story being in the public domain doesn’t invalidate the Trademarks of the characters. You can build off of the storyline and plot elements, but you still can’t do so with “Harry Potter”–as that still has the potential to tarnish the brand/imply endorsement/yadda yadda yadda.
Basically, and yes, I know it sounds confusing and counter-intuitive, you can use the plots and stories of public domain works, right down to the mannerisms of the characters, as long as your characters are not the Trademarked characters. As I hope I’ve made clear, the difference between the two, as far as the law is concerned, need only be a somewhat superficial one.
And what’s that have to do with Copyright?
The legal issue is, to use your phrasing, “perpetual Copyright”, not “perpetual ownership”. I, again, suspect you know that, which is why you keep (mis)using the word “Copyright”.
If they made it clear that’s what they were, it wouldn’t matter in terms of the law.
Most of those cases are production companies taking it to extremes to make a joke out of it, but some just get bad legal advice. I didn’t see the movie yet, so I can’t comment on the context, but “parody” is a valid defense of Trademark infringement, just as it is with Copyright.