# Copyrighting a comic book character **URL:** \ **Category:** Factual Questions\ **Created:** [March 21, 2007, 8:33pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920 "2007-03-21T20:33:21Z")\ **Posts on this page:** 17\ **Page:** 1
**Author:** ![gytalf2000](https://avatars.discourse-cdn.com/v4/letter/g/ac91a4/32.png) [@gytalf2000](https://boards.straightdope.com/u/gytalf2000)\ **Post date:** [March 21, 2007, 8:33pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/1 "2007-03-21T20:33:21Z")
What do I have to do to copyright a character that I have created? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 21, 2007, 8:52pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/2 "2007-03-21T20:52:55Z")
Here’s some homework. Read. When come back . . . pie: Extent of protection: [RansBet99: Situs Judi Online RTP Slot Gacor Resmi Terpercaya](http://www.publaw.com/graphical.html) [http://www.idea.piercelaw.edu/articles/35/35\_4/18.Lalor.pdf](http://www.idea.piercelaw.edu/articles/35/35_4/18.Lalor.pdf) [Chapter 6](http://www.edwardsamuels.com/illustratedstory/isc6.htm) Practicalities of registering copyright: [http://www.copyright.gov/circs/circ44.html](http://www.copyright.gov/circs/circ44.html) ---
**Author:** ![gytalf2000](https://avatars.discourse-cdn.com/v4/letter/g/ac91a4/32.png) [@gytalf2000](https://boards.straightdope.com/u/gytalf2000)\ **Post date:** [March 21, 2007, 9:25pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/3 "2007-03-21T21:25:04Z")
[QUOTE=Gfactor] Here’s some homework. Read. When come back . . . pie: Extent of protection: [http://www.publaw.com/graphical.html](http://www.publaw.com/graphical.html) [http://www.idea.piercelaw.edu/articles/35/35\_4/18.Lalor.pdf](http://www.idea.piercelaw.edu/articles/35/35_4/18.Lalor.pdf) [http://www.edwardsamuels.com/illustratedstory/isc6.htm](http://www.edwardsamuels.com/illustratedstory/isc6.htm) Practicalities of registering copyright: [http://www.copyright.gov/circs/circ44.html](http://www.copyright.gov/circs/circ44.html) [/QUOTE] Thanks for the info! ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [March 21, 2007, 9:59pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/4 "2007-03-21T21:59:18Z")
You don’t copyright characters, you trademark them. You copyright stories about the characters. There are many differences between the two. As an example, consider Disney and Mickey Mouse. Disney owns a trademark on Mickey. Disney also owns a copyright on _Steamboat Willie_, the first Mickey film. The copyright on _Steamboat Willie_ will soon expire, and there’s nothing Disney can do about that (short of getting the copyright law changed). When that happens, _Steamboat Willie_ will be in the public domain, and anyone who wants will be able to make copies of it, show it to audiences for free or for admission, or do pretty much anything else they want with it. But so long as Mickey is still trademarked, nobody will be able to make any new Mickey movies without Disney’s permission (which they probably won’t give). Trademark, on the other hand, lasts only as long as you defend it, which roughly means complaining when others use it. Disney will presumably keep on defending their Mickey Mouse trademark forever, so non-Disney folks will never be able to use Mickey in their own projects. However, if the Disney execs decided, in a fit of altruistic insanity, that they would stop defending their trademark, they’d lose it, regardless of any copyrights that are still alive. If this were to happen, nobody could make copies of the existing Mickey Mouse films (until the copyright eventually expired), but anyone could make new Mickey Mouse movies. ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [March 21, 2007, 10:12pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/5 "2007-03-21T22:12:05Z")
[QUOTE=Chronos] Trademark, on the other hand, lasts only as long as you defend it, which roughly means complaining when others use it. Disney will presumably keep on defending their Mickey Mouse trademark forever, so non-Disney folks will never be able to use Mickey in their own projects. However, if the Disney execs decided, in a fit of altruistic insanity, that they would stop defending their trademark, they’d lose it, regardless of any copyrights that are still alive. If this were to happen, nobody could make copies of the existing Mickey Mouse films (until the copyright eventually expired), but anyone could make new Mickey Mouse movies. [/QUOTE] Moreover, trademarking is incredibly labor (and cost) intensive. You have to trademark the character in just about every conceivable place it could appear–Mickey on a T-shirt, Mickey on a mug, Mickey on a notebook … ---
**Author:** ![N9IWP](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/n9iwp/32/3154_2.png) [@N9IWP](https://boards.straightdope.com/u/N9IWP)\ **Post date:** [March 21, 2007, 11:28pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/6 "2007-03-21T23:28:52Z")
Things “Attack of the Clones” is trademarked for (at least in Austrailia and for customs purposes): Computer games; computer game discs; interactive entertainment games; interactive computer game software and instructional materials distributed as a unit; interactive entertainment software and instructional materials distributed as a unit; interactive entertainment software with an educational component; interactive video game software and instructional materials distributed as a unit; interactive multimedia computer game programs; video game machines; pre-recorded video game cartridges; interactive video games and instructional materials distributed as a unit; prerecorded audio cassettes, video cassettes, compact discs, video discs, computer game software, computer game discs, video game software, video game discs, and/or video game cartridges; prerecorded phonograph records, video discs and compact discs, all pertaining to general interest topics, education, entertainment, science fiction games, films and/or music; calculators; sunglasses; computer hardware; pre-recorded audio and video cassettes featuring entertainment and/or educational material; blank audio and video cassettes; blank phonograph records; blank CDs and DVDs; carrying cases for pre-recorded audio cassettes, video cassettes, compact discs, video discs, computer game software, computer game discs, video game software, video game discs, and/or video game cartridges; mouse pads; remote control devices for radios, television sets, stereos and computers; photographic slide transparencies; magnetically encoded calling cards and transportation cards; computer peripherals; laser discs; CD-ROMs; coin operated mechanical game machines, electronic counting machines; photocopier apparatus; fax machines; weighing machines; scales; measuring apparatus; compasses; electronic bulletin boards; signal lights; modems; telephones; apparatus for games (adapted for use with TV only); coin operated games; radios; magnetic tapes; headphones; electro-acoustic assembling units; audio recorders; CD players; DVD players; DVD discs; cameras; projection equipment; humidity indicators; scientific satellites; microscopes; telephone wire; material for electricity means (wires, cables); magnets; remote control devices; computer controlled apparatus and installations; lightning conductors; electroplating instruments; vacuum jet plating machines; fire extinguishers; fire engines; electric arc cutting apparatus; electric welding apparatus; radiological apparatus for industrial use, X-ray producing apparatus and installations not for medical purpose; diving clothes; floats for bathing and swimming; swimming belts; swimming jackets; alarms; electric locks; optical glasses; spectacle containers; batteries; electricity chargers; animated cartoons; X-ray film not for medical use; electric irons; and electrically heated clothing. (from [http://www.customs.gov.au/webdata/resources/notices/acn0607.pdf](http://www.customs.gov.au/webdata/resources/notices/acn0607.pdf)) So be on the lookout for “Attack of the Clones” vacuum jet plating machines Brian ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [March 22, 2007, 12:28am UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/7 "2007-03-22T00:28:38Z")
Woohoo! Star Wars temporary pet tattoos are still legit! ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [March 22, 2007, 1:51am UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/8 "2007-03-22T01:51:48Z")
[QUOTE=Chronos] As an example, consider Disney and Mickey Mouse. Disney owns a trademark on Mickey. Disney also owns a copyright on _Steamboat Willie_, the first Mickey film. The copyright on _Steamboat Willie_ will soon expire, and there’s nothing Disney can do about that (short of getting the copyright law changed). When that happens, _Steamboat Willie_ will be in the public domain, and anyone who wants will be able to make copies of it, show it to audiences for free or for admission, or do pretty much anything else they want with it. But so long as Mickey is still trademarked, nobody will be able to make any new Mickey movies without Disney’s permission (which they probably won’t give).. [/QUOTE] You’re generally right, but since Mickey is trademarked, showing the movie would get you in hot water for using their trademark without permission, even if it’s in the public domain. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 22, 2007, 4:57am UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/9 "2007-03-22T04:57:06Z")
Nope. Trademark cannot be used to thwart the public domain copyright status of a work. _Dastar Corp. v. Twentieth Century-Fox Film Corp._ (2003). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 22, 2007, 1:41pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/10 "2007-03-22T13:41:58Z")
[QUOTE=Walloon] Nope. Trademark cannot be used to thwart the public domain copyright status of a work. _Dastar Corp. v. Twentieth Century-Fox Film Corp._ (2003). [/QUOTE] _Dastar_ dealt with the Lanham Act’s unfair competition provisions, found in § 43(a), and it’s reasoning (written by Scalia, who interpreted that section narrowly) seems limited to that section. I’m not sure it’s good authority for the broader proposition that an expired copyright invalidates a registered trademark. There are probably cases on this point, but I don’t have time to look right now. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 22, 2007, 4:33pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/11 "2007-03-22T16:33:26Z")
From the majority opinion in _Dastar_ > [@](#): > > The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of copyright, which addresses that subject specifically. The right to copy, and to copy without attribution, once a copyright has expired, like “the right to make [an article whose patent has expired]-including the right to make it in precisely the shape it carried when patented-passes to the public.” Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); see also Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 121-122, 59 S.Ct. 109, 83 L.Ed. 73 (1938). “In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying.” TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 29, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). The rights of a patentee or copyright holder are part of a “carefully crafted bargain,” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 150-151, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989), under which, once the patent or copyright\*34 monopoly has expired, the public may use the invention or work at will and without attribution. Thus, in construing the Lanham Act, we have been “careful to caution against misuse or over-extension” of trademark and related protections into areas traditionally occupied by patent or copyright. TrafFix, 532 U.S., at 29, 121 S.Ct. 1255. “The Lanham Act,” we have said, “does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity.” Id., at 34, 121 S.Ct. 1255. Federal trademark law “has no necessary relation to invention or discovery,” In re Trade-Mark Cases, 100 U.S. 82, 94, 25 L.Ed. 550 (1879), but rather, by preventing competitors from copying “a source-identifying mark,” “reduce[s] the customer’s costs of shopping and making purchasing decisions,” and “helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product,” Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 163-164, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (internal quotation marks and citation omitted). Assuming for the sake of argument that Dastar’s representation of itself as the “Producer” of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under § 43(a) for that representation would create a species of mutant copyright law that limits the public’s “federal right to ‘copy and to use’ ” expired copyrights, Bonito Boats, supra, at 165, 109 S.Ct. 971. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 22, 2007, 4:47pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/12 "2007-03-22T16:47:43Z")
More case law, from 82 A.L.R. Fed. 9: > [@](#): > > In _Frederick Warne & Co. v Book Sales, Inc._ (1979, SD NY) 481 F Supp 1191, 205 USPQ 444, the court held that because the record did not permit a finding that the necessary elements of trademark infringement—secondary meaning and likelihood of confusion—existed, a publisher’s motion for summary judgment in its trademark infringement action had to be denied. The publisher’s series of children’s books were sold under the trademark “The Original Peter Rabbit Books”; the publisher conceded that seven of the books, not covered by copyright protection in the United States, were in the public domain; nevertheless, the publisher claimed exclusive rights in the cover illustrations and character marks derived from those illustrations in the seven books; in addition, it claimed exclusive trademark rights in an illustration appearing in one of the seven books, referred to as the “sitting rabbit”; three of the seven cover designs of the books had been registered under the Lanham Act as book trademarks—the “running rabbit,” the “dancing squirrel,” and the “reading mouse.” A competitor marketed a book entitled “Peter Rabbit and Other Stories”; it combined the seven stories in the public domain into a single volume; the competitor photographically reproduced the drawings in the publisher’s early editions; it produced redrawings of the cover illustrations from the seven books, and a redrawing of the “sitting rabbit”; it placed the cover reproductions at the beginning and end of the stories for which they were designed; the competitor used photographic reproductions from each of the publisher’s original covers as corner ornaments on the pages of the seven stories; one story had a picture of the “running rabbit” on the lower right-hand corner of every page; the competitor used a reproduction of the “sitting rabbit” design on the cover of its book—which design was used by the publisher as the principal symbol of its licensing enterprise—but switched to a “standing rabbit” design of its own creation, after the publisher instituted this action. The court observed that, as to those marks registered under the Lanham Act, the publisher’s registration constituted prima facie evidence of trademark validity. The fact that a copyrightable character or design has fallen into the public domain, said the court, should not preclude protection under the trademark laws so long as it is shown to have independent trademark significance, identifying in some way the source or sponsorship of the goods. The court said that a book cover, lacking sufficient originality to warrant copyright protection, could be protected for a potentially unlimited duration under the trademark laws. The court concluded, however, that because the claimed marks were derived from illustrations in the text of the publisher’s books, they could prove to be only “weak” or descriptive marks, which would be accorded less protection than inherently distinctive marks. The court said that if any of the competitor’s illustrations, including the “sitting rabbit” design, came to identify the publisher’s books, the competitor’s use of it might lead the public to believe that the competitor’s allegedly inferior book was associated with the publisher, and that this kind of danger of misrepresentation could establish a claim for unfair competition. The publisher had to be given an opportunity to produce evidence of consumer recognition and likelihood of confusion with respect to each of the marks in dispute, added the court. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 22, 2007, 7:05pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/13 "2007-03-22T19:05:57Z")
[QUOTE=Walloon] From the majority opinion in _Dastar_ [/QUOTE] With respect, **Walloon** , I think you overstated the holding of _Dastar_. It’s a matter of degree, and I mostly agree with you, so if you’re looking for a fight, you can profitably move on. Here is what I said: [QUOTE=Gfactor] Dastar dealt with the Lanham Act’s unfair competition provisions, found in § 43(a), and it’s reasoning (written by Scalia, who interpreted that section narrowly) seems limited to that section. [/QUOTE] Your quote from \*Dastar \* contains some dicta painted with a broad brush. > [@](#): > > The right to copy, and to copy without attribution, once a copyright has expired, like “the right to make [an article whose patent has expired]-including the right to make it in precisely the shape it carried when patented-passes to the public.” True, but misleading. Trademark doesn’t protect against copying. But there might be some overlap. There is nothing to suggest that a valid registered trademark expires along with a related copyright. > [@](#): > > Thus, in construing the Lanham Act, we have been “careful to caution against misuse or over-extension” of trademark and related protections into areas traditionally occupied by patent or copyright. Ok. Let’s see how Justice Scalia goes about this task. > [@](#): > > **While much of the Lanham Act addresses the registration, use, and infringement of trademarks and related marks, §43(a), 15 U. S. C. §1125(a) is one of the few provisions that goes beyond trademark protection. As originally enacted, §43(a) created a federal remedy against a person who used in commerce either “a false designation of origin, or any false description or representation” in connection with “any goods or services.”** 60 Stat. 441. As the Second Circuit accurately observed with regard to the original enactment, however–and as remains true after the 1988 revision– > §43(a) “does not have boundless application as a remedy for unfair trade practices,” Alfred Dunhill, Ltd. v. Interstate Cigar Co., 499 F. 2d 232, 237 (1974). "[B]ecause of its inherently limited wording, §43(a) can never be a federal ‘codification’ of the overall law of ‘unfair competition,’ " 4 J. McCarthy Trademarks and Unfair Competition §27:7, p. 27-14 (4th ed. 2002) (McCarthy), but can apply only to certain unfair trade practices prohibited by its text. (Emphasis added). First, he tells us that he’s analyzing section 43(a), which he distinguishes from most of the rest of the act. Specifically, he says: "At bottom, we must decide what §43(a)(1)(A) of the Lanham Act means by the “origin” of “goods.” To me, it doesn’t seem that he’s deciding anything about public domain or registered trademarks at all. The case involved a very untrademark-like fact pattern: > [@](#): > > Anticipating renewed interest in World War II on the 50th anniversary of the war’s end, Dastar released a video set entitled World War II Campaigns in Europe. To make Campaigns, Dastar purchased eight beta cam tapes of the original version of the Crusade television series, which is in the public domain, copied them, and then edited the series. Dastar’s Campaigns series is slightly more than half as long as the original Crusade television series. Dastar substituted a new opening sequence, credit page, and final closing for those of the Crusade television series; inserted new chapter-title sequences and narrated chapter introductions; moved the “recap” in the Crusade television series to the beginning and retitled it as a “preview”; and removed references to and images of the book. Dastar created new packaging for its Campaigns series and (as already noted) a new title. The Lanham Act claim was: "Dastar’s sale of Campaigns “without proper credit” to the Crusade television series constitutes “reverse passing off"1 in violation of §43(a) of the Lanham Act, 15 U. S. C. §1125(a).” A reverse passing off claim is one in which the producer misrepresents someone else’s goods or services as his own. No registered trademarks were involved in the case. The Plaintiff was claiming that Dastar took credit for creating the work, which it asserted was a false designation of origin. Here’s the analysis of section 43(a), which as we’ve discussed is about unfair competition and not trademark: > [@](#): > > The dictionary definition of “origin” is “[t]he fact or process of coming into being from a source,” and “[t]hat from which anything primarily proceeds; source.” Webster’s New International Dictionary 1720-1721 (2d ed. 1949). And the dictionary definition of “goods” (as relevant here) is “[w]ares; merchandise.” Id., at 1079. We think the most natural understanding of the “origin” of “goods”–the source of wares–is the producer of the tangible product sold in the marketplace, in this case the physical Campaigns videotape sold by Dastar. The concept might be stretched (as it was under the original version of §43(a))5 to include not only the actual producer, but also the trademark owner who commissioned or assumed responsibility for (“stood behind”) production of the physical product. But as used in the Lanham Act, the phrase “origin of goods” is in our view incapable of connoting the person or entity that originated the ideas or communications that “goods” embody or contain. Such an extension would not only stretch the text, but it would be out of accord with the history and purpose of the Lanham Act and inconsistent with precedent. > > ``` > Section 43(a) of the Lanham Act prohibits actions like trademark infringement that deceive consumers and impair a producer's goodwill. It forbids, for example, the Coca-Cola Company's passing off its product as Pepsi-Cola or reverse passing off Pepsi-Cola as its product. But the brand-loyal consumer who prefers the drink that the Coca-Cola Company or PepsiCo sells, while he believes that that company produced (or at least stands behind the production of ) that product, surely does not necessarily believe that that company was the "origin" of the drink in the sense that it was the very first to devise the formula. The consumer who buys a branded product does not automatically assume that the brand-name company is the same entity that came up with the idea for the product, or designed the product--and typically does not care whether it is. The words of the Lanham Act should not be stretched to cover matters that are typically of no consequence to purchasers. > > ``` So Scalia says origin doesn’t mean the person who had the idea first. He’s still adressing the claim that by copying the work without designating its author, Dastar confused consumers. He notes that origin could be construed to mean authorship for communicatvie products like tv shows, but rejects the idea. Here is where he considers the Copyright Act. > [@](#): > > It could be argued, perhaps, that the reality of purchaser concern is different for what might be called a communicative product–one that is valued not primarily for its physical qualities, such as a hammer, but for the intellectual content that it conveys, such as a book or, as here, a video. \*\*The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). And the author, of course, has at least as much interest in avoiding passing-off (or reverse passing-off) of his creation as does the publisher. \*\* For such a communicative product (the argument goes) “origin of goods” in §43(a) must be deemed to include not merely the producer of the physical item (the publishing house Farrar, Straus and Giroux, or the video producer Dastar) but also the creator of the content that the physical item conveys (the author Tom Wolfe, or–assertedly–respondents). > [@](#): > > The problem with this argument according special treatment to communicative products is that it causes the Lanham Act to conflict with the law of copyright, which addresses that subject specifically. This next part is interesting because it shows how hard Scalia is trying here. He’s a textualist. He’s said copyright law addresses the subject specifically, and then, he cites cases instead, because the statute does not specifically say that it’s ok to do this: > [@](#): > > The right to copy, and to copy without attribution, once a copyright has expired, like “the right to make [an article whose patent has expired]–including the right to make it in precisely the shape it carried when patented–passes to the public.” Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 230 (1964); see also Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 121-122 (1938). “In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying.” TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U. S. 23, 29 (2001). The rights of a patentee or copyright holder are part of a “carefully crafted bargain,” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150-151 (1989), under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution. Copyrights expire. Public domain is a judge-made concept. It’s not specifically in the act at all. So when it works, he skips the part about looking at the statute first and skips to the good cases. That said, the cases say what they say. > [@](#): > > Thus, in construing the Lanham Act, we have been “careful to caution against misuse or over-extension” of trademark and related protections into areas traditionally occupied by patent or copyright. TrafFix, 532 U. S., at 29. “The Lanham Act,” we have said, “does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity.” Id., at 34. Federal trademark law “has no necessary relation to invention or discovery,” Trade-Mark Cases, 100 U. S. 82, 94 (1879), but rather, by preventing competitors from copying “a source-identifying mark,” “reduce[s] the customer’s costs of shopping and making purchasing decisions,” and “helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product,” Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 163-164 (1995) (internal quotation marks and citation omitted). **Assuming for the sake of argument that Dastar’s representation of itself as the “Producer” of its videos amounted to a representation that it originated the creative work conveyed by the videos, allowing a cause of action under §43(a) for that representation would create a species of mutant copyright law that limits the public’s "federal right to ‘copy and to use,’ " expired copyrights,** Bonito Boats, supra, at 165. Requiring attribution of a public domain work would creat a mutant copyright. But what about a drawing of a character that is a registered trademark. If it’s a valid mark, by definition it does suggest the origin of the work–not the person who thought it up, but whoever owns the mark. > [@](#): > > ``` > When Congress has wished to create such an addition to the law of copyright, it has done so with much more specificity than the Lanham Act's ambiguous use of "origin." The Visual Artists Rights Act of 1990, §603(a), 104 Stat. 5128, provides that the author of an artistic work "shall have the right ... to claim authorship of that work." 17 U. S. C. §106A(a)(1)(A). That express right of attribution is carefully limited and focused: It attaches only to specified "work[s] of visual art," §101, is personal to the artist, §§106A(b) and (e), and endures only for "the life of the author," at §106A(d)(1). Recognizing in §43(a) a cause of action for misrepresentation of authorship of noncopyrighted works (visual or otherwise) would render these limitations superfluous. A statutory interpretation that renders another statute superfluous is of course to be avoided. E.g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837, and n. 11 (1988). > > ``` No such claim can be made about trademark law in general. If I have a mark, it’s specifically protected by a different section of the Lanham Act. [15 U.S. Code § 1114 - Remedies; infringement; innocent infringement by printers and publishers | U.S. Code | US Law | LII / Legal Information Institute](http://www4.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00001114----000-.html) It’s a lot broader, and it doesn’t includethe word “origin.” Therefore, Scalia’s analysis does not apply. And he’s talking specifically about origin: [QUOTE=first sentences of next two paragraphs] Reading “origin” in §43(a) to require attribution of uncopyrighted materials would pose serious practical problems. Another practical difficulty of adopting a special definition of “origin” for communicative products is that it places the manufacturers of those products in a difficult position. [/QUOTE] > [@](#): > > In sum, reading the phrase “origin of goods” in the Lanham Act in accordance with the Act’s common-law foundations (which were not designed to protect originality or creativity), and in light of the copyright and patent laws (which were), we conclude that the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. Cf. 17 U. S. C. §202 (distinguishing between a copyrighted work and “any material object in which the work is embodied”). To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft, 537 U. S. 186, 208 (2003). > [@](#): > > Because we conclude that Dastar was the “origin” of the products it sold as its own, respondents cannot prevail on their Lanham Act claim. and > [@](#): > > If, moreover, the producer of a video that substantially copied the Crusade series were, in advertising or promotion, to give purchasers the impression that the video was quite different from that series, then one or more of the respondents might have a cause of action–not for reverse passing off under the “confusion … as to the origin” provision of §43(a)(1)(A), but for misrepresentation under the “misrepresents the nature, characteristics [or] qualities” provision of §43(a)(1)(B). For merely saying it is the producer of the video, however, no Lanham Act liability attaches to Dastar. So, while I disagree with your summary of the case: > [@](#): > > Trademark cannot be used to thwart the public domain copyright status of a work , I also don’t agree with, this, which you were responding to: [QUOTE=RealityChuck] Mickey is trademarked, showing the movie would get you in hot water for using their trademark without permission, even if it’s in the public domain. [/QUOTE] Trademark only prevents a narrow class of activities. Mostly, it reserves to the registrant the right to: use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on free from competing uses that are likely to cause confusion, or to cause mistake, or to deceive So it would depend on the fact pattern. Simply copying the movie isn’t going to violate copyright laws. OTOH, using Mickey Mouse in advertising for the public domain version certainly could. ---
**Author:** ![Dan\_Norder](https://avatars.discourse-cdn.com/v4/letter/d/4af34b/32.png) [@Dan\_Norder](https://boards.straightdope.com/u/Dan_Norder)\ **Post date:** [March 23, 2007, 9:01am UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/14 "2007-03-23T09:01:03Z")
[QUOTE=toadspittle] Moreover, trademarking is incredibly labor (and cost) intensive. You have to trademark the character in just about every conceivable place it could appear–Mickey on a T-shirt, Mickey on a mug, Mickey on a notebook … [/QUOTE] This statement is highly misleading. Trademarks occur naturally though marketing products in certain areas. It’s a function of associating terms or images with acts of business. What you seem to be referring to are registering trademarks in certain classes. Registering a trademark has many advantages, but in and of itself does not a trademark make. Someone may have filed for a trademark that is simply unenforceable or conflicts with an existing trademark, or is invalid because it was never actually used in business… …and someone can legally enforce their rights to trademarks in use in marketing without having registered them previously. If someone discovers some class of product that Disney hasn’t filed a trademark on, that doesn’t mean someone else can slap Mickey on it and start selling it and claim that it’s OK because Disney never filed a trademark for that area. ---
**Author:** ![mazinger\_z](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@mazinger\_z](https://boards.straightdope.com/u/mazinger_z)\ **Post date:** [March 23, 2007, 3:18pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/15 "2007-03-23T15:18:06Z")
[QUOTE=Dan Norder] This statement is highly misleading. Trademarks occur naturally though marketing products in certain areas. It’s a function of associating terms or images with acts of business. What you seem to be referring to are registering trademarks in certain classes. Registering a trademark has many advantages, but in and of itself does not a trademark make. Someone may have filed for a trademark that is simply unenforceable or conflicts with an existing trademark, or is invalid because it was never actually used in business… …and someone can legally enforce their rights to trademarks in use in marketing without having registered them previously. If someone discovers some class of product that Disney hasn’t filed a trademark on, that doesn’t mean someone else can slap Mickey on it and start selling it and claim that it’s OK because Disney never filed a trademark for that area. [/QUOTE] Not to be snarky, but this is actually mis-leading. I used to defend my company’s trademarks full-time. We’re not as belligerent as Disney or the NFL, but we have a couple of trademarks that are attacked so often that we’re thinking of dropping it because it takes up so much time and work. Registering isn’t the issue of difficulty. It’s responding to all the crappy cease and desist letters, office actions, and (God forbid) especially the arbitration hearings, and this isn’t just from the Fed, but from every crap-ass backwater opposition jursidiction with two nickels to rub together and the ability to put a stamp on an envelope. ---
**Author:** ![Dan\_Norder](https://avatars.discourse-cdn.com/v4/letter/d/4af34b/32.png) [@Dan\_Norder](https://boards.straightdope.com/u/Dan_Norder)\ **Post date:** [March 24, 2007, 6:15am UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/16 "2007-03-24T06:15:38Z")
OK, so… What part of what I said was misleading, actually? Because nothing you said seems to contradict anything I said. ---
**Author:** ![DocCathode](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/doccathode/32/18773_2.png) [@DocCathode](https://boards.straightdope.com/u/DocCathode)\ **Post date:** [March 24, 2007, 6:51pm UTC](https://boards.straightdope.com/t/copyrighting-a-comic-book-character/396920/17 "2007-03-24T18:51:39Z")
[QUOTE=gytalf2000] What do I have to do to copyright a character that I have created? [/QUOTE] Head down to your local comic book store. I know of at least one graphic novel designed to help artists, writers and other creative folks understand copyright and trademark law. I’d give you the author’s name if I could find my copy. He’s an attorney who specializes in intelectual property. There are other books as well, all tailored to your questions and level of legal expertise (eg none). Many conventions also hold seminars adressing intelectual property law.