Question on copyright law.

So if there is a work that has not been copyrighted and someone comes along later and tries to copyright it like The Amen Break or the Happy Birthday Song, what is the status? In the case of the Amen Break registration was unsuccessful but in the case of the Happy Birthday Song registration was successful despite evidence that the claimed writers did not actually write it and credit is now given to the writers of Good Morning to All and there is a record of the current words pre-1923* which would put it out of copyright.
*Happy Birthday to You has a copyright date of 1935.

Not sure exactly what you are asking… But if somebody gets away with copyrighting (or more importantly patenting) something in the public domain, then…
If they sue you, your defense is it really is public domain. Or, you could sue them, much the same way you would if they had copyrighted stuff that really belonged to you, and force it into public domain. This is happening with now with “happy birthday”. As to patents, Obama signed in some new law that makes it easier to challenge BS patents. And, hopefully it helps, as that situation is fully out of control.

Also, fully relevant

This American Life episode “When Patents Attack”

I’m also a little confused as to what is being asked here, but in the US a work that qualifies for copyright is automatically protected by copyright the moment it is created. This was not the case in the past, but copyright laws were changed in the 1970s and '80s. It is no longer necessary to formally register for copyright or even to put a copyright notice on the work, although doing these things helps if you ever wind up involved in a copyright dispute.

Even under current law there’s a potential complication for music though, as copyright only applies to works that are fixed in a tangible medium. I am not a copyright expert, but I would take this to mean that if a musician improvised a new song without ever writing it down or making a recording then this song would NOT be protected by copyright. It would then presumably be legal (albeit unethical) for someone else who’d heard the song to write it down or make their own recording and claim the copyright. But even if I’m wrong and this isn’t legal, the original musician is probably screwed. The lack of any written or recorded version of the song by the original musician would make it very difficult to prove that they’d really written the song first.

The problems of music copyright in verse.

Let me put it this way. I create a song and play it for you. It is not copyrighted (since it is not in a tangible medium) but you decide to copyright it even going so far as to register it with the US Copyright Office. Thing is that I can prove that you did not write it (I played it for other people before you even though I never wrote it down or recorded it. I have signed depositions testifying to this including those at the same party when I played it for the copyright filer.). What’s the status of the copyright?

I know my example is a little forced but that is so people like Lamia
a) Don’t use today’s rather lenient copyright laws to apply in days when it was much more difficult to get and maintain the copyright. My examples are from when copyrights had to be pursued more actively.
b) Repeat the erroneous canard that today something is copyrighted as soon as it is created even though Lamia did correct themself and point out that a work is only copyrighted when made tangible.

That episode is about patents. It had no relevance to copyrights. Zero.

Registration is NOT the ultimate source of rights. If you have all the evidence you say you do then file your own copyright registration and then sue. You’ll win.

It makes no difference. Registration was not the ultimate source of rights even under the Copyright Act of 1909.

Please don’t use “copyright” as a verb. It’s partially the source of your confusion.

Even though copyright protection attaches when fixation occurs, the purported creator still has to prove that the work is original. If he wrote it down after someone else played for him it’s not original. The actual creator can still register his work and make his argument that he was the actual creator.

Do you mean to say I cannot write a book (or an article) and say, “This is in the public domain and may be copied freely”? I do it all the time. Are you saying that someone could come along and copyright it (“you can verb any noun”) and then it is up to me to sue them?

No. What makes you say that?

You “can” verb any noun in the sense that it does not violate any rule if grammar. But when you verb “copyright,” you are creating ambiguity and confusion.

And your question here is the perfect example under American law, the clause “someone could come along and copyright it” is either ambiguous or meaningless. I can’t answer this question, because it has no specific meaning.

What are you proposing that this other person is doing when he or she “copyrights” your work?

I can’t answer your question.

Of course you do still have to make a fixation before you register.

I, on the other hand, am confused as to why someone would think for even a millisecond that it could possibly be wrong, let alone a source of confusion. lists it as a verb and says “As a verb, from 1806”.


Hari Seldon: there does not appear to be any sure-fire way to put something into the public domain under current copyright law. It is yours forever (assuming the current mania of copyright extension continues). There are some suggested “free” licenses where the author can disclaim all the usual rights, but those are untested. In particular, the issue of an author later revoking earlier permission to a more restricted license is a (small) possibility.

You can “sheesh” all you want, but if you’re asking a question about copyright law, then “copyright” as a verb IS ambiguous under current law.

What “copyright” as a verb logically means is “make subject to copyright protection,” Well, how do you do that? You create an original, creative work of expression and make a fixation of it in a perceivable medium."

So which part of that does “copyright” refer to? The final step, perhaps? Meaning, fixation? So “to copyright” something means to make a fixation?

Is that what you suppose the intended meaning is in conversations like this? I tend to doubt it. That’s why I ask for clarification.

I suspect most people think they are referring to “registration” or perhaps even “placing a copyright notice on a work.” Or even “make a claim of copyright interest in.” If so, which? And all of these meanings are wrong under the law, because none of these things are the ultimate source of exclusive rights under copyright law.

So whatever you do mean to say, it’s likely that the verb “to copyright” is either ambiguous, inaccurate, misleading, or confusing. And if you are trying to achieve an understanding if how copyright law works, all these things will interfere with that.

So my advice to avoid the verb “to copyright” is not because I’m a grammar Nazi. It’s because if you want to understand copyright law, using “copyright” as a verb will interfere with that.

(As an aside, the same is true of “to trademark” as a verb. On the other hand, the verb “to patent” has a clear an unambiguous meaning, so go ahead and use that.)

It isn’t the fault of people like Lamia when people like Saint Cad fail to express themselves clearly. Your OP used two examples of old songs but was written in the present tense (“what is the status?”), and you indicated in the OP that you already knew the copyright status of “Happy Birthday” and “The Amen Break”. Your hypothetical example of a song written by you also used the present tense, but in the very same post you complained about me (or “people like [me]”) giving you information about today’s copyright law. I’m now more confused than ever as to what you’re actually trying to ask here, but since you’ve decided to be obnoxious about it then I’ve also lost interest in trying to help you. Good luck finding someone who can figure out what the heck you’re talking about.

I didn’t have to correct myself, because I did not say “something is copyrighted as soon as it is created” in the first place. I was careful to say “a work that qualifies for copyright is automatically protected by copyright the moment it is created.” I’m not sure how you managed to misunderstand this, especially since you did notice that I went on to explain that works not fixed in a tangible medium do not qualify for copyright.

Dictionaries are notoriously bad sources for the technical, legal definitions of words otherwise used in the common language.

We’ve had this discussion before. I agree with you that U.S. law does not provide an actual mechanism for giving up copyright. The various creative commons licenses (plural: most people don’t realize there are a number of them) are an attempt to allow authors to do so in all but name, but until a case such as the one you mention gets through a court nothing is certain.

There is no mania for copyright extension. The U.S. followed E.U. practice to synchronize timespans. Will those timespans grow longer when the 1923 copyrights start expiring in 2018? I think it’s extremely doubtful. Virtually everybody in the author community agrees that current limits are already too long. Corporate interests are not at stake. Trademark protection is already forever as long as the mark is actively used; any copyright protection added on to that is minimal in dollar terms. I haven’t heard of any concerted effort by anyone anywhere to lengthen copyrights, and it’s now incredibly late to start fresh to do so by 2018. If you know of such efforts, please tell me about them because I’d be seriously interested in finding out. Otherwise, talk of an extension “mania” is basic Internet bullshit.

You’ve also talked about this with me before, and I’ll give you the same cite I gave you last time: “It is well settled that rights gained under the Copyright Act may be abandoned.” — Ninth Circuit Court of Appeals, “MICRO STAR v. FORMGEN INC GT 3D 3D DOES 100”

It might not be an explicit part of the US Code, but the courts don’t see any ambiguity, so I don’t know why anyone else should claim to.

The is no act of “copyright.” Patents, and trademarks are different things.

there can be issues because the laws are vague and dates that trigger the countdown may be the first publication - which may be the first actual sale.
So the later date may be used because until then it wasn’t actually sold… The law is vague…

It might be complicated, but it is not “vague.” It is quite specific. As a general matter, “Copyright in a work created on or after January 1, 1978, subsists from its creation …”

There is no law that says you must enforce your copyright, only that you can.

IANAL but it seems to me that failing to enforce your copyright does not confer the ability for others to take your work and copyright it. So in what way is copyright non-enforcement not the same as public domain. I suppose, other than the risk that your heirs may decide to take up the enforcement right. But then, isn’t there something about “well you knew and did nothing about this until now, it’s a bit late after 20 years?” This is always the excuse used by companies to shut down fan sites - if you don’t defend your right, you lose it?

Failure to enforce is relevant to trademark issues, not copyright issues. Fan sites may present both kinds of questions.

A copyright holder may choose to refrain from suing any particular person without losing his or her right to enforce.

The only limitation is the statute of limitations, which is three years. You can’t recover for an act of infringement that happened more than three years ago.

The Micro Star case does contain that line. It does so in a reference, though, to another case, HAMPTON v. PARAMOUNT PICTURES CORPORATION, 279 F.2d 100, 103 (9th Cir. 1960). 1960 means that the ruling was talking about an earlier and now superseded Copyright Act. Still, the Court found it relevant so let’s see what it says.

Looking at that 1951 case, I see the same language.

Why does the Court believe this? I read the case more closely this time than in the previous thread. Because the law was indeed different then: you needed to claim copyright rather than copyright attaching automatically.

Despite the 1998 ruling - a sidenote in a case that was not about placing a work into the public domain - I continue to question whether the current law makes this automatic supposition. In that I seem to be supported by everyone on the Internet who matters. When the more learned advocates of freeing their works do so, it’s not by any overt act of placing the work in the public domain, it is by the loophole variant of a license. Why don’t we see floods of works forthrightly in the public domain if there is a known mechanism for doing so?

Excuse me for citing Wikipedia, but it seems sound enough:

Like Wikipedia - which has a rather enormous stake in the subject - I’m not going to say that works can be put into the public domain until I see an actual court case on that particular subject, not one that merely copies boilerplate from rulings on superseded law.