A completely absurd statement our of touch with Hollywood reality.
Why do I care about Hollywood reality? We’re all talking about real reality, here. A movie might show Disney’s lawyers fighting for copyright, but no, Disney’s real lawyers do not fight for copyright, because that’s not a thing that is done. A lawyer fighting for copyright would be like a congressman trying to pass a law declaring that the sky is blue.
That may be legally true, but matters may depend on which side has the scariest lawyers!
I used to compose logic puzzles for magazines, and thought Sneezy, Grumpy, Dopey et al would be good names for my 7-person puzzles. The magazines kept sending me checks without comment, so it was only when I came across a magazine that I saw the huge editing that was happening to my puzzles. The editor then told me they were afraid of Disney’s lawyers.
That wasn’t the only editing they did. For example, The Dwarves in Traffic Court was hilarious but by publication the traffic violations had changed to lampshade colors. :smack: I guess the magazine didn’t want to offend traffic violators.
Here’s the thing.
If Steamboat Willie going into public domain will be a financial disaster for Disney, why haven’t they started the extended multi-year lobbying and public relations campaign that will be needed to change the law?
Or are they so firmly in control of Congress that they’ll wait until a couple days before, make a few phone calls, and get the whole thing passed overnight?
I don’t think it’s going to be that easy. If Disney must have perpetual copyright to Steamboat Willie, then extending the term by a few decades every few decades seems to be the wrong way about it, they should have ordered Congress to make copyright perpetual and be done with it.
It seems normal to us for really old books to fall into public domain. So Shakespeare and Mark Twain being public domain seems normal. But movies have been around for only a century, and so very few relevant movies have ever fallen into public domain. And while books are very typically the product of one person, movies and TV are almost always created as works for hire by teams of people and owned by corporations. So the notion that a movie could be public domain seems odd to us, because it’s rarely happened, and never to movies that people actually care about. So for example the famous movie “The Wizard of Oz” will go into public domain in 2035, and people will care about that. However, the original Baum books are all in public domain, and have been since 1996. So you can today make a Wizard of Oz movie, you just can’t use any elements from the famous movie. And so “Oz the Great and Powerful” is ostensibly based solely on the the Oz books, and not at all on the movie.
Well, truly perpetual copyright is probably unconstitutional. But they might have been able to get a thousand years, or something.
Yes, according to Eldred v. Ashcroft, Congress has complete discretion to set the term of copyright protection. The only thing that’s unconstitutional is a literal perpetual term.
– Sir Thomas Babbington Macauley MP, 1841, on the occasion of a law being proposed to extend copyright from life or 28 years to life plus 60 years.
Let’s unpack that Macualay quote in the light of modern economics and culture.
Is copyright a tax on the public? It’s a favorite ploy of today’s libertarians to call anything that costs them money a tax so it’s interesting to see how far back this goes. But copyright is not a tax in any normal sense of the word, even though it emanates from a governmental ruling. Copyright is purely a public notice of ownership. It safeguards those owners’ right to earn from the sale of their property/intellectual services. In that sense it is no different from a doctor making money for the treatment of a patient over the course of a long illness or a hotelier receiving payment for a guest’s stay. In the modern world the net profits made from these services is taxable but 1841 Britain didn’t have an income tax.
So what kind of tax is Macaulay talking about? Johnson received a portion of the wholesale price of the book in the form of royalties, x% of the book’s list price. Say a book is sold for $10 with 10% royalties. The bookseller remits $5 to the publisher as the wholesale cost. The publisher remits $1 to the author in royalties. A book that is out of copyright can be printed by anybody. The book can therefore cost $9, the bookseller remitting $4.50 to the publisher, which doesn’t have to pay anything to the author.
Under this scenario copyright is a $1 “tax” on the customer, the public. Eliminating copyright is purely and simply a transfer of money from the author to the other parties in the transaction.
Everybody at the time, including Macaulay, understood that this was a problem. Authors need to eat. Johnson, ironically, was a notorious gourmand. A good book could live a long life, just as a building put to use as a hotel would provide revenue to its owner over its entire life. Without any continuing income an author would have little incentive to produce works. No copyright was not even an option. A passage in the speech you glossed over says:
Except that was a total lie for the purposes of rhetoric. Pirated editions were commonplace in England, and would soon increase in America to such numbers that the British publishing community was up in arms over the loss of income. To them, of course, not to the their writers.
The other lie for the purpose of rhetoric is the cultural one I mentioned. A limited lifespan of copyright was necessary so that the greatest books in the language could be republished in cheaper editions, available to more people. The better a book, the greater the potential readership for a longer time, the sooner rather than later it should be legal to deprive the author of its value. Again, this inverted cultural judgement is antithetical to the way everything else in society is valued. No one at the time - or today - would argue that the greater and more beautiful a house, the sooner it should be opened to the public for its use.
For Macaulay and most others at the time, copyright was a form of cultural elitism. He would be utterly appalled to hear us arguing about the necessity of putting cartoons about a mouse into the public domain. But he would have understood that copyright length was a balance between zero and infinity. If you go farther down on the page blindboyard linked to, you find a second speech by Macaulay, with some interesting lines.
In actual fact, the Copyright Act of 1842 followed this closely.
It’s dangerous taking words not merely out of context, but out of their time. They might mean the opposite of what you think.
It would be raher more like a doctor claiming that he had saved your life and hence was entitled to a share of your future income. There is a difference between being paid to write and being paid to have written.
Macauley goes into the fact that it is a tax regardless of any attempts to work around it on technicalities. The same applies to today’s Private copying levy, very much a tax.
No, it is a lack of a transfer. No money goes from the author to the reader. The reader is merely freed from having to pay extra money to the author to be able to read a work.
No. If an author is receiving income from his works of twenty years earlier then there is no incentive to produce more. A short term of copyright, such as the previous terms of seven and fourteen years, provide an incentive to produce and expire early enough to not deter further production. A term of life or more, or of decades, provides less motivation.
I didn’t gloss over anything, I just think there are copyright restrictions on the SDMB regarding posting entire articles, and it would also have been very long. I gave a link for anyone interested in reading, which I recommend.
Wrong. It is common in Britain today for the largest and most pleasant houses of historical significance to be owned by English Heritage, the National Trust or the body that manages royal palaces.
The difference is that houses are things one can own. A copyright is a restriction on the activities of other people granted by the government.
The purpose, the justification for this heavy restriction, is to encourage writing to be done as it is in the public interest. Therefore it is to be as short as it can be while still motivating writing to take place. Otherwise a copyright is nothing more than a licence for theft.
Every single point in your post is wrong or misstates what I said. Rather than go through one of those exercises in dueling line by line critiques I can fairly sum your argument: intellectual property is not property.
Bleh.
People keep arguing this, but the entire history of copyright says otherwise. Macaulay would have sneered.
As for terms of seven or fourteen years, they were rejected by Macaulay and not considered in England in 1842. In America it was already 28+14, up from 14+14. In short, every sensible person who has studied the problem in the entirely of American history has rejected your solution, which has never existed.
Obviously you have never written for money. Look, yes, you can get income from stuff written decades ago, but unless you are very very lucky, it dwindles off. I still get a check once in a while for something written decades ago, but it barely buys a dinner. Not even a really nice dinner.
Next, unless you are writing technical manuals or something, writing is creative. You cant just decide to produce.
Even popular authors keep on writing, often doing a book a year, despite copyrights going back decades. They do it to keep food on the table and the rent paid. Yes, a very very few authors actually get movie deals and the like and become wealthy, but the vast majority are middle class.
https://www.reddit.com/r/Fantasy/comments/15rabx/how_much_does_a_well_known_fantasy_author_make/
Calling being paid for their work "theft’ is a definition that no one uses. They are getting paid for their work. Is your paycheck “theft”? :rolleyes::dubious:
Then again, though, if the residuals from an old work dwindle away to insignificance after a few decades, then it’s not hurting the author for the work to go into the public domain at that point. It’s only an issue for those very few creative works deemed so great that they’re still profitable decades later. Should an artist, by virtue of creating such a great work, be entitled (if they so choose) to live the rest of their life from the proceeds of that one work? It seems to me that that’s the real question here.
Well, remember I was a very minor author. Most authors get residuals that will make a rent payment or maybe a really ince dinner.
Sure. Dont we allow inventors to do the same?
Nope. Patents expire after a maximum of 20 years, and while the duration of a patent has changed over history, it’s never been too far off of that.
Pharmaceutical patents can be extended in some jurisdictions for another 5 years in certain circumstances, but I’m nitpicking.
Hello there. Expensive intellectual property lawyer (and part-time professor of intellectual property law) here. Should be billing but it is Monday morning and I feel like goofing off.
There are so many interesting topics in this thread that I don’t know where to start.
1. Disney and the Copyright Extension
Free-braining this without citations, back in the 1980s, the United States relied upon s301 (later Super301) of I think some legislation called the Fair Trading Act. Something like that. There was a congressional hearing in the context of that legislation about loss of revenue because of counterfeiting. A bunch of multinationals decided to wing it. Congress said, “Shum, come back with some hard evidence and we’ll listen to you.” So they did. Congress was outraged and it lead to two almost trade wars with China in the early 90s. That in turn led to the creation of GATT (General Agreement on Trade and Tariffs) and from there the TRIPs (Trade Related Intellectual Property aspects of the World Trade Organisation Treaty). (Professor Michael Blakeney has written extensively and lucidly about this, for those interested.)
Setting aside Berne etc., what TRIPs does is try to render uniform across the world certain basic levels of IP protection. That includes both trademarks and copyright.
While his ex-wife was busy mounting battleship guns in music videos (and I guarantee you’ll now have that song stuck in your head for the rest of the day), Singer Sonny Bono, once part of Sonny and Cher, ended up being a Californian congressman. He was the champion of entertainment companies in Congress. His work led to the extension of copyright, via TRIPs. Some people say it was to render international copyright protection uniform with Germany. But the reality is that Disney, through Sonny Bono, was a big driver behind the extension. It was the subject of a Supreme Court challenge by those who were outraged by an extension of a statutory monopoly right, but the Supreme Court upheld the extension - Eldred v Ashcroft, as previously mentioned.
2. Trademarks v Copyright
Copyrights have a limited monopoly (70 years past date of death of the author is usually what is cited, but drill down and you’ll see there are different durations for different types of works). Trademarks do not.
What happens when the copyright underpinning the trademark expires? Not a lot. The trademark rights trump the copyright.
What happens when “Steamboat Willie”, or a better example, Action Comics #1 (Superman’s first appearance) comes out of copyright? Can I stand on a street corner and sell copies of it? Yes I can, so long as what I am selling does not contain any trademarks in it. In many countries, that includes the brand “SUPERMAN”, the S insignia, and an image of the character. A lot of white-out, then (rendering my free-to-sell editions of Action Comics #1 pointless), before I embark on my street-corner entrepreneurial adventurism.
Exapno Mapcase says:
Yeah, I don’t know about that. Trademark laws protect not just the identical representation of the character but also substantially identical representations. Disney would be able to give it a very good crack to say that Steamboat Willie Mouse is a substantially identical replication of Contemporary Trademarked Mouse.
3. Is copyright a tax?
Exapno Mapcase is dead right, although he omits the amusing anecdote about Charles Dickens’ fury at being ripped off by that cesspool of counterfeiting, the United States.
4. Copyright as Property
blindboyard says:
That’s a philosophical perspective. Most pieces of legislation that I am aware of describe copyright as a form of property.
I have a lot of sympathy for this view, as does the Australian Productivity Commission - see its very recent report on copyright. However, TRIPs means this will never happen.
-
- Monopolies are Both Good and Bad*
DrDeth says:
The argument around this is twofold:
a. intellectual property monopolies are there to reward innovation and let others build upon them once the monopoly ends. You see this very clearly in patent law. You can also see it in derivative works like the motion picture “Shakespeare in Love”. This movie clearly draws heavily from Shakespeare. If copyright had an unlimited monopoly, then some company called “William Shakespeare LLC” would be out reaping royalties and disincentivising creative innovation.
b. creative works form part of our common cultural heritage. I can find HG Wells’ “The Time Machine” on the internet and read it for free. Or I can go into a bookshop and buy a copy for $15, instead of the $25 I pay for a *Harry Potter *novel. JK Rowling is absolutely entitled to spin money out of her hard work (and indeed, in many court decisions you see judges conflating labour, skill, and effort with copyright policy). But should her estate, or some company which has purchased the assets from her estate, be able to do that forever and thereby control written culture?
**
OK, back to my timesheets now.
Don’t forget Dastar v. Fox, which addresses the former question—trademarks can’t be used to overcome the limitations of copyright term.
And also don’t forget the recent Sherlock Holmes case (don’t have the citation handy), which affirmed the right of new authors to write new Sherlock Holmes stories based on the characters appearing in the public domain Holmes stories, even though the later Holmes stories are still under copyright protection.
Why would I need the white-out? It’s already perfectly legal to sell a copy of Action Comics #1 with the trademarks intact. I can find a number of news stories about people doing just that. All that would change once the copyright runs out would be the origin of those copies. The copies that are sold now are copies that Detective Comics authorized some printing house to make. The copies after it goes public domain would be ones that needed no authorization. Leaving the trademarks in would not be a trademark violation, since, while those trademarks identify the comic book as being a DC product, that identification is correct.
It’s good to have a professional commenting on issues of their trade. Whenever we see that, lots of the nonsense spouted by amateurs gets properly squashed.
I’m an amateur, although I’ve spent a lot of years looking at the issues. You’ve said some nice things about what I’ve posted, but I’m going to push my luck because any condensation of a quarter century of stuff invariably gets wavy around the edges.
First, I was also going to mention Conan Doyle Estate v. Klinger. Wikipediaisn’t a solid cite, but it exactly matches my understanding when it states:
Are you contradicting this or just saying it’s complicated? Every good analysis I’ve read indicates that the 1928 look of the Mouse will be allowed for use, but that later representations won’t be.
Second, I’ve never said that Disney didn’t push for the extension of copyright. I’ve said that it would have gone through even if Disney hadn’t taken part. A lot of interests wanted it. People blame Disney as though it were the sole agent. Reductionism, I know, but that loses a lot of nuance essential for any discussion of the future of Copyright.
Third, you lost me again when you say that you can’t sell public domain works if they have trademarked elements. I can’t think of any examples under U.S. law in which that has been enforced. Could you expand on this?
I’ll pick through each of these in order. It might take a little time to provide cogent answers…
Dastar v Fox is a horrible case. It sticks out in my mind clearly. I had the absence of delight in reading it for the first time in 2012 in a Kings College London course on copyright, and I was trying back then to figure it out. As I read it, the case is principally about false attribution of work (s43(a) of the Lanham Act and the VARA) and smacks around the head the idea of moral rights. (I acknowledge that a trademark functions as a badge of origin and that this is linked to the idea of false attribution of works, but the two causes of action are usually squarely demarcated - you can do one and not the other.)
But otherwise, and this is what I got worked up about when I first read it, the decision makes no sense in the context of trademark law. Setting aside the carve out in the US Copyright Act around words, phrases, familiar symbols or designs, lots of trade marks that consist of other things would loss the benefit of protection if copyright over-rode trademark rights. It can’t be that Mitsubishi, which created its three-diamond logo in the 1920s, would lose trademark rights in the logo because of an expiration of copyright in the logo. That would be a remarkable outcome that would cause havoc in the international advertising / branding industry.
Having a quick dig around, I found this article which on page 300 specifically talks about Mickey Mouse and how s43(a) of the Lanham Act should apply once (if) the copyright expires. http://www.law.nyu.edu/sites/default/files/ecm_pro_064631.pdf The author also notes something I hadn’t considered before, not having had the opportunity to read academic texts on Dastar v Fox: Scalia talks about goods, and omits services (which were covered by Dastar’s TM registration (or services mark, if you prefer). This is a really odd oversight for a man of his jurisprudential pre-eminence.
Err, will have to read it, sorry. 
I assume this is Conan Doyle v Klinger, which **Exapno Mapcase **refers to in his post. Kind of makes sense though, that the elements of the derivative works can still be protected even if the original works have evaporated.
Of course you can sell an original version of Action Comics #1. You could also license it, encumber it, burn it (gasp!), or use it to line your bird cage (gasp!!).
The only thing you can’t do it copy it. Its all there in the word: copyright = right to copy. (There is more to copyright than that, particularly around secondary infringement, but we don’t need to go into that.)
So you cannot copy Action Comics #1 while the subject matter is protected by copyright (subject to the usual exclusions, which are much more extensive in the US than anywhere else).
So by making a copy, you’re, in essence, applying the trademark to the copied work.
By way of a patent analogy, Pfizer’s patent has expired on sildenafil citrate. Huzzah! Let’s all go and manufacture Viagra and make millions by way of unsolicited emails! But, oh, VIAGRA is US trademark registration 2162548 registered in 1998 and owned by Pfizer Inc. Boo. Guess we’ll have to call it Cialis instead. But, damn, CIALIS is US trademark registration 2724589 registered in 2003 by Eli Lilly and Company.
What’s that, you say? Lilly have a trademark registration for a generic version of an expired patent? Why, yes. As it is entitled to. The subject matter of the patent is in the public domain. They’re branding the drug in their own way, because Lilly can’t use the registered trademark VIAGRA to do it because otherwise Pfizer will sue them (again).
So, replicate public domain IP, but don’t use the registered trade mark to promote it.
But then, Chronos, you say, “WTF? This is different! The word “SUPERMAN” is an intrinsic part of the product! It is on the front cover! The word “SUPERMAN” is on many of the pages inside the comic! The thirty-odd US trademarks which DC Comics have registered don’t apply! Justice Scalia was right, you Antipodean moron!”
But then I break out the white-out. The use of the brand “SUPERMAN” is as a badge of origin. It tells people what is the source of the goods or services offered under the brand. It is the intangible thing which is the repository of the goodwill. Goodwill is the attractive force which drives custom. Would anyone know to buy your Action Comics #1 replications if it did not have the word (or likeness) of Superman on the cover? Probably not. In which case, the word “SUPERMAN” is functioning as a trademark and your photocopy is an infringement.
I note that the use of the word SUPERMAN inside the comic mitigates the risk of infringement, because people usually don’t look at the interior of a written work before making a purchasing decision (unless you were one of those cheapskates at Borders which caused it to close down). What this might mean, thinking about it, is that once (if) copyright runs out, people might sell copies of Action Comics #1 with covers which do not replicate any of DC Comics’ trademarks. Maybe the cover would read, “FEATURING A WELL KNOWN SUPERHERO!” (Except of course you can’t use the word “Superhero” either The “Superhero” Trademark: how the name of a genre came to be owned by DC and Marvel, and how they enforce it - World Comic Book Review .) Or maybe it will mean that the Supreme Court affirms Dastar and so trademarks actually don’t go on forever notwithstanding what the legislation says.