As I mentioned before, this isn’t just for the OP.
As the thread grows, posts get lost.
This is a topic where people hold multiple misconceptions. Abandoning the topic so that those misconceptions take further hold doesn’t do anyone any favors.
I’m not here to tell the OP that he’s wrong–there’s no point in that.
I’m here to explain to everyone else who doesn’t fully understand the topic why the OP is wrong.
There is a widespread belief that a Trademarked character can be used in any way someone wishes as long as the Copyrighted works involving that character fall into the public domain.
That’s a belief that could end up costing naive artists and writers a bunch of money that they wouldn’t have lost if they just understood that “public domain stories =/= public domain characters”.
OP can get sued for all I care. I’m not here for him–I’m here for the others who are less stubborn.
I’ve tried that tact. Twice.
He doesn’t get it.
Like Gary T said, there’s really no point in continuing with him anymore.
Here’s the answer: if he said that, then the estate probably wouldn’t have Trademarked it.
I don’t understand what makes it a valid question.
If I willed you $40,000 hypothetically, then the hypothetical result would be that you’d get $40,000.
If he hypothetically did and the Estate hypothetically Trademarked it anyway, then it would hypothetically go to court and the hypothetical judge would decide the case based on its hypothetical merits, all of which could change the situation and none of which can be hypothetically anticipated.
I’ll elaborate. The reason the question isn’t valid is because he made the leap from “If Doyle willed that his characters not be Trademarked” to “the Estate would be violating his wishes”, when the right answer is “the Estate wouldn’t have Trademarked the characters”.
I’d suggest taking your own advice, and reading the entire thing rather than just “paragraph 4”.
He’s telling you the same thing I have been.
And, again, the appeal to authority is irrelevant.
Once again, I’ll elaborate for the benefit of those who are actually paying attention but confused about the laws.
That article isn’t arguing, as the OP is, that Trademarks are being used to extend Copyright protections and are therefore unconstitutional in this sense. That is the OP’s argument.
Copyright is, per the Constitution, required to be limited (which only means it’s not infinite). Therefore, something infinitely extending Copyrights (making the Copyright perpetual, to use OP’s phrasing) would be, as the OP claims, unconstitutional.
The breakdown, though, is that Trademarks are not doing that. This brings me to the article in question:
The article is arguing that Trademarks are extending ownership over materials that would otherwise enter into the public domain once the Copyright expires.
This is true & something I alluded to earlier in the thread with a hypothetical children’s book called “Fuzzy Bunny Goes to the Dentist”.
This is something that, presumably, the article writer has a moral problem with. They are not alone. Many people have moral issues with perpetual IP ownership, regardless of whether or not we’re discussing IPs or Trademarks. Unfortunately, in a discussion of law, morals and feelings play no role.
That is where the OP and the article differ.
Unlike the OP, the article is not insisting the law is on their side (the writer acknowledges that it’s not) and they aren’t insisting that legal Trademarks should be abandoned.
The OP is here to discuss what the law is, not what they think it should be in an ideal world. This is why they are wrong. If we were discussing the latter, the current law would be irrelevant to their opinions of what should be, and I probably wouldn’t be here.
But instead, they’re repeatedly insisting what is, while writing letters demanding that companies give up their legally held rights & accusing them of violating the law–and, on that, they are wrong.
That’d be me… I thought what was happening was that the book itself has (or soon will) fallen into the public domain, but the name of the character is trademarked.
Is that even close to what’s happening?
So this makes me confused. Does the trademark apply to the cover, and to advertising, or does it apply through the whole book? If the book itself is public domain, can one just change the name from Tarzan to Gnarbat and publish that way?
IF the book is public domain, but the name of one of the characters is trademarked, then what does “public domain” really mean?
(I remember when TSR put a service mark by the word “Nazi,” in one of their Indiana Jones adventure supplements.)
The identity of the character is Trademarked, not just the name. But what people associate with a character’s identity and the protected elements aren’t necessarily the same.
If the book is public domain, you can republish the book without changing anything. That’s a Copyright claim, not a Trademark claim.
The brand owner endorsed the product & gave their permission when it first created–then endorsement carries over when it hits the public domain.
What you can’t do is change the product while still utilizing their license. For example, you can’t write in a scene where the Trademarked character has a lot of unprotected sex, does a bunch of heroin, and goes on a crime spree. The reasons for that is obvious–it can damage their brand as a whole.
There’s a public domain in Copyright, and there’s a public domain in Trademark.
Anything that’s not purported to be Trademarked is in the latter. They aren’t automatic like Copyrights. I discuss that here with my “Fuzzy Bunny” example. That has nothing to do with the former.
If there’s no Trademark and no Copyright protection, you’re free to do whatever you want with it. You could republish the work and write in that scene where the character has a lot of unprotected sex, does a bunch of heroin, and goes on a crime spree.
I go into more detail in that first link I provided at the beginning of this post.
I know it’s confusing and somewhat counter-intuitive. The problem is that a lot of people, when discussing this topic, oversimplify their explanations to the point of being incorrect. That’s why there’s a pervasive thought out there that “public domain work = public domain character”. That is, as I’ve explained, not true.
I reread my earlier comments & I can see how it’s still convoluted.
I’m going to attempt to explain by oversimplifying (though hopefully not too much) and listing a couple of unrelated points that will tie together in the end.
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The use of a Trademarked character in a specific story is essentially considered to have been licensed for use in that story in perpetuity.
That doesn’t change when the Copyright expires and the story hits the public domain.
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A work that’s in the public domain can never be Copyrighted again. If someone adds changes to the work, however, those changes are subject to Copyright protection–but not the original, public domain work.
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Copyright does not require registration and is deemed to be in effect from the moment that the work is created.
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Now, what this means is that, in terms of IP law, substantive changes made to a work (such as new/different plotpoints) are considered to be a separate work from the original. That’s why they’re subject to protections that the original work is not.
But, that also means that, as a different work, the license granted to the original work so that they might use the Trademarked character is not automatically extended to the new work. By introducing substantive changes, you’ve created a new work that, unless you have a permission, would qualify as Trademark Infringement if it’s affiliated with a Trademarked character.
As I said, this is an oversimplification, but hopefully it helps with understanding the general idea & why limits are what they are.
If a formerly copyrighted literary, comic, or movie character is to be genuine public property (public domain), then it should be in both copyright and trademark. It is contradictory to call it “public” domain when a corporation/estate is still making money off of it. If a character is public domain or has versions that are, not being able to use the name in title is, for practical purposes, contradictory.
Yes, if a character is in the public domain, that means, by definition, they aren’t subject to Copyright or Trademark restrictions.
You’re correct.
The difference is that the characters you’re talking about are not public domain characters–they are Trademarked characters. That is, as you pointed out, the opposite.
Again, you’re correct. If a character is in the public domain, then nobody would have standing to tell you that the character’s name can’t be used in a title.
The difference, though, is, once again, the characters you’re talking about are Trademarked, which, again, is the exact opposite of being in the public domain.
Debillw3, public domain work can and has been re-copyrighted. The 2012 case of Golan v. Holder copyright restored many public foreign works here that were still copyrighted in their native countries. Also, even domestic works can get re-copyrighted, even if there was failure to renew its copyright. A famous case was “It’s A Wonderful Life” became public domain in 1975 because a clerical error failed to renew the copyright. But it got a re-copyright of sorts here.
Look up the 1990 Stewart V. Abend case. Republic Pictures (the successor to a film company that had the movie copyrights until 1975) had the films rights to the book that the movie is based off of and the music rights, so they did a copyright restoration of sorts to the film in 1993 by citing Abend. An Information Tech Law Wiki article (itlaw.wikia.com/wiki/Stewart_v._Abe…) summarizes the SCOTUS ruling for this case.
Through some library acquisitions and company mergers, the film is now under copyright by Paramount Pictures. Under current copyright law, the soundtrack copyrights, provided no extensions are made, will expire in Feb. 2067. By this, I take it that the film with the music will be public domain (again) in Feb. 2067.
16 of the “Andy Griffith Show” episodes lapsed copyright because of failure to renew. CBS is suing a YouTuber for uploading said episodes. A CBS attorney claims that b/c those 16 episodes have still copyrighted elements from previous episodes, the 16 episodes are still entitled to some protection. The uploader said that since these 16 episodes were digitally remastered, they are derivative.
What CBS is doing is seeking a re-copyright or something like that. Let’s something that legally expired (failure to renew or failure to put a proper notice, in the cases of some movies) should stay there.
Debillw3, I am going all out with the following: when an author creates a book series and all the stories (even unfinished) they wrote for the series expire, the characters are permanently lapsed from any additional copyright or trademarks. *That is, the rights holders are barred from even making a derivative work or making any new TM. They are legally forbidden. Attempting to do so will mean being charged with public domain infringement and each charge results in a mandatory fine or jail time.
*This would apply even to me and I legally could call a book series something like “Space Tarzan”.
The cases you’re citing don’t mean what you say they mean.
I’ve been remarkably patient with you, but, at this point, you’ve shown that you have no interest in paying attention to what’s said or doing anything other than twisting the words on your cites, so from this point on, I’m done talking to you. Anyone who takes your word for things deserves what they get.
With that, I’m still happy to respond to (& clear up confusion for) anyone who’s actually listening to what I’m saying.
To me, copyright maximalists like Disney are hypocritical that they have no problem using stories from the public domain but refuse to allow their versions to expire (public domain from copyright and trademark).
SCOTUS maybe able to re-write the copyright laws but Congress has the power to impeach SCOTUS. Congress or SCOTUS knowingly violating the Constitution with these copyright decisions to appease the stupid Berne Convention, other foreign treaties, and corporate interests (often from Congress members receiving money from lobbying) over letting more works become public property so the masses can build upon them should be a candidate for a fed getting impeached.