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Jack Kirby Heirs Reclaim Marvel/Disney Rights
lbalbalba writes "Heirs to comic book legend Jack Kirby sent 45 notices of copyright termination to Marvel Entertainment, prospective Marvel buyer Disney, Sony Pictures, Universal Pictures, 20th Century Fox, Paramount Pictures, and others studios that that hold licensed media rights to Marvel characters. Some rights could revert to the heirs as soon as 2014, for characters that are among the hottest in Hollywood: The Incredible Hulk, The Mighty Thor, Iron Man, Spider-Man, The Avengers, and others. Among other things the heirs' demand could cause problems for Disney's as yet unconsummated purchase of Marvel."
Activision Blizzard and Marvel Disney, what's next? Googlesoft?
"The difference between genius and stupidity is that genius has it's limits" - Albert Einstein
Being older than 10 this is meaningless to me. Do kids today even buy comic books anymore? Isn't it mostly the 30-50 year old crowd trying to make an investment? Woo boy am I holding my breath for spiderman 4 in 2011...
Only the State obtains its revenue by coercion. - Murray Rothbard
Lee and Marvel shafted Jack big time during the 60s. Jack did 90% of the work while Stan took 90% of the credit. It's about time he gets the recognition and money he deserves. Too bad he didn't live to see it. I had the pleasure of meeting him once, he was a lovely, soft spoken man.
Why?
What is Mr Kirby Jr's stance on all this? Does he want money?
He didn't do any of the work, he just inherited copyrights.
Worse than a patent troll.
Neither the summary nor the article (I know...) mention what it's going to cost the heirs to get the rights back. TFA states that they can regain control a certain period after the grant of rights had been made, but is this just a normal end of the contract or do they have to buy it back? In the article Disney is quoted as saying they knew this was coming, so I'm guessing this is just the normal end whatever contract the film companies had to license the characters. Are there any IP lawyers who could shed some light on this?
That was Stan Lee and Steve Ditko.
If anything will get the length of copyright reduced back to reasonable levels, it'll be creators reclaiming their IP from big business. Then it'll enter into public domain and big business will probably just settle it via trademark legislation as they divide up public domain.
Well. This should be interesting.
I wonder what Kirby's kids will do with the licensing money for the Kirby co-creations that've become major movie franchises if they win this. It'd be nice to hope that they use a little of it to create a non-profit that helps fund innovation in comics like Eastman did after he ran out of things to spend his TMNT money on; Jack was an amazing fountain of ideas and I think that'd be a great way to honor his memory.
egypt urnash minimal art.
I really hope this forces Marvel to rethink their strategy. I love comics. I don't like super hero books. Super hero books that run for hundreds of issues with no coherent message or vision suck. I don't care if the current run is good, or if it used to be good years or even a few issues ago. Marvel needs to get back to it's roots selling comics that everyone wants to read, not just 30 something fanboys who obsess over whether or not Kevin Smith did justice to the Green Arrow.
Non impediti ratione cogitationus.
"Give us money so we go away!"
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
disney can go straight to hell. horrible damn company.
Copyrights will do nothing to keep Marvel/Disney from ruining these franchises. You have to take the trademark.
Oh, my. I remember lawsuits involving Jack Kirby and Marvel of the 1980's, when he was still alive.
For those of you who've not made friends with authors and artists, it's very common for companies to really screw the authors who create their most valuable intellectual properties. For any of us who've worked on a major software or hardware project and had it dropped by a VP whose goals it doesn't fit, or have a mediocre middle manager take credit for it, you can sympathize with what happens to these artists.
This doesn't mean that Jack's heirs have a real case, but be aware that Marvel and Jack had some serious disagreements about intellectual property and artwork ownership during his lifetime, and a lot of artists believed that Jack was screwed, really hard, by Marvel's last generations of leadership during his life.
... do a movie sequel where all those characters turn gay. Very gay. Then the Kirbys have to write around that.
This is what the copyright kings might call "The Heir of the Dog that bit you in the ass."
This has to be some sort of play to get more money for the rights than they are already getting and I think they should certainly go for it.
Copyright issues have become increasingly difficult for Hollywood, as it continues to trade on characters and stories that were created decades ago, but are now subject to deadlines and expiration dates under federal copyright law.
Copyright issues would become easy again if copyrights ever expired and the copyrighted material entered the public domain. Of course, Hollywood has worked to try to keep that from happening. The lesson Hollywood will take away from this is: get Congress to overhaul copyright law so that nothing ever expires.
Or did they already manage that, and the Kirby properties are only expiring because they are old?
I know that copyrights used to need to be registered, and could be renewed only once, and the total life of a copyright was thus limited. Now copyright is automatic and lasts for the life of the creator of the work plus 95 years. (Likely this will be extended again, right around the time Mickey Mouse would enter the public domain... 2023, I think.)
steveha
lf(1): it's like ls(1) but sorts filenames by extension, tersely
for Superman/Superboy lawsuits.
First rename the characters or change the character to a different person being that character. Then drag the case on for years until a settlement is made.
Incredible Hulk, The Mighty Thor, Iron Man, Spider-Man, The Avengers, and others.
Bruce Banner is no longer The Incredible Hulk, the Rulk or Red Hulk absorbed his gamma powers and Skar The Hulk's son will replace the Hulk.
The Mighty Thor, Thunderstrike or Beta Ray Bill will have to sub in for Thor.
Iron Man, Tony Stark got lobotomized in trying to erase the super hero registration list from his head, Pepper Potts has her own suit of armor and James Rhodes can take over as War Machine for Iron Man.
Spider-Man, Eddie Brock is now Anti-Venom, can sub for Spider-Man as Peter Parker quits or loses his powers again. Either that or another Ben Reilly Spider-Clone.
The Avengers have changed so much, right now the Dark Avengers are fighting the New Avengers, but they could easily change the group's name to the Challengers or Defenders like the other groups Kirby didn't invent.
Captain America, James "Bucky" Barnes is the new Captain America and was The Winter Soldier. Steve Rogers is dead, but they are trying to bring him back, doubts are in if he'd still be Captain America or let Bucky keep the uniform. Other men have been Captain America in the past. The 1950's Captain America is still alive with Steve Roger's face.
Most of those characters have been so radically changed that they don't resemble the Kirby versions anymore. Besides I thought Stan Lee and Steve Ditko did Spider-Man and not Jack Kirby.
Remember, Slashdot does not have a -1 disagree moderation, and no, troll, flamebait, and overrated are not substitutes.
Am I the only one who thought this article was about Jack Kilby, the Nobel laureate who invented the integrated circuit?
The Kirby heirs are doing this pursuant to 17 USC 203, if anyone is interested.
The gist of it is, for works not made for hire, where the author licensed or sold his copyrights to someone else (except via a will), the author, or his heirs or estate, can get together and terminate the license or sale. It has to be done within a certain window of time, and it requires a sufficient number of heirs to agree to it, and there are some procedural steps that have to be taken. And this can be done even if the author signed an agreement that expressly said that he would not do this.
I am all for reforming copyrights to something sensible in both length and scope, and I am concerned at the political power wielded with regard to copyright by publishers. However, I have to side against the authors on this sort of thing. While it might be fun to see someone stick it to Disney, it's ultimately a bad policy.
If an author willingly signs an agreement transferring or licensing his copyright to someone else, then that agreement should remain valid. If the author wants to reserve a right to terminate the transfer or license because some sort of condition arises (e.g. licensing fees are no longer being paid), or arbitrarily at some point in time, then it should be written into the agreement. No one is forcing authors to sign these things; no one is forcing authors not to have an attorney help them out with it. If a contract is one sided, don't sign it. Hash out a more agreeable agreement or walk away. And if your bargaining positions are unequal, well, welcome to the real world; this happens a lot.
To have a law that mandates that authors can cancel their contracts at will, with no particular repercussions for them is offensively paternalistic. Authors should not be universally treated like children, able to escape their commitments. They are not any more or less sophisticated in their business dealings than any other ordinary person, who is not treated so astonishingly favorably by the law.
Further, it is unjust. While an author certainly is essential in the success of a particular creative work, publishers also often make invaluable contributions. To the extent that their agreements with authors permit them to do so, I think it is completely fair for them to share greatly in the rewards. Publishers that contribute little will tend to not be in as favorable a position to benefit as the publishers that contribute a lot. Authors who don't want to have to pay or share profits with publishers can always self-publish. It is entirely doable, but the difficulty tends to be off-putting. So long as it is the decision of the parties involved, and not of Congress, it's okay.
In this case, suppose that Kirby had never worked for a comic book company, but instead had started his career by self publishing comics. Would he have achieved so much success, thereby indicating that his estate deserves to profit from his comics and characters alone? I doubt it. So did Kirby, apparently; he chose not to go that route, and instead worked for publishers for whatever pay or other compensation both sides found agreeable.
For the Kirby estate to wrest away control of the work Kirby did under contract with Marvel, in contravention of contracts willingly entered into by both sides that state otherwise, and with no other penalties is just not fair, and the law should not permit it. It is no different than if Alice sold land to Bob, Bob invested in the land raising its value, and then Alice snatched it back contrary to the original agreement.
If you want to be able to end an agreement after you make it, make that part of the agreement. Otherwise, well, you'll know better next time.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I loved The Last Boy on Earth. That could make a great film too -- intelligent animals, humans gone, environmental disaster. Hmm.
Just make up some new, open source, superheros.
I would contend something different. Inheritance is garbage IMNSOH - these kids did nothing to create this work, their father did. Why should they benefit from it? In fact, why should anyone receive many millions in inheritance?
Enough inheritance to go to a great school, start a business, get married, etc, etc - sure. But to recover enough to never have to work a day in your life? I don't think so. This work should be in the public domain because the author is dead. As a capitalist, I believe the most productive members of society deserve to be rich (i.e. those that can make the money, can keep it, so they can efficiently create the businesses that employ people), but once they're dead, it goes back to the society that enabled them to become rich, and helps set the stage for a new generation of entrepreneurs.
To paraphrase Buffett, the children of the rich deserve to be rich as much as the children of Olympic athletes deserve to be gold medalists.
If you can read this... 01110101 01110010 00100000 01100001 00100000 01100111 01100101 01100101 01101011
O'Walt is still spinning in his grave.
Spiderman is Ditko.
"Speaking the Truth in times of universal deceit is a revolutionary act." -- George Orwell
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You're all primed to absorb some juicy intellectual property and it happens...
Merger Interruptus!
Well nothing to do now but head to the bathroom with a nice young DC Comics release to get a little... release...
You have the right to remain sentient. If you give up the right to remain sentient, you will be elected to public office
This is too funny for words. The very studios who have essentially screwed everyone else over with unconstitutional copyright "reforms" and "extensions" are now about to get royal screwings of their own. Not that any of this helps the common citizen or does anything to enhance the Public Domain, but it is still fun to watch.
Funniest statement of all is Disney's CYA about how they had already factored all of this in when they offered billions for Marvel.
Definitely the best thing since eBay bought Vonage without getting the rights to the code that runs it.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
the very basis of copyright in the United States is encouragement of innovation.
Well, that's half anyway; really the basis of copyright is encouraging authors to create and publish the most, in exchange for the least copyright, so as to maximize the net public benefit. Both creation and publication are necessary elements of good copyright policy. A work cannot benefit the public unless it is both created, just so it exists, and published, so that people beyond the author can actually get and use it.
When an author has created a work that they sell after the fact, however, they absorbed a considerable amount of the risk by taking the time to create something without any pay at all. ... But when they come up with something marketable, suddenly publishers want control.
Well sure. The authors are self-interested; having created a work, they want the benefits that a professional publisher can bring to the table -- inexpensive printing in bulk, good marketing, arrangements with lots of retail operations to get the work out to the public -- without wanting to cede the rewards that the work can bring them.
And likewise, the publishers are self-interested, perhaps being able to obtain a good work without having incurred any risk in its creation (though this is not always so; the recording industry has some interesting financial practices) they'll want to invest as little as possible into getting it into the marketplace, but get as much of a reward from this as possible.
No one can force the two parties to make an agreement they don't find acceptable. And there are plenty of authors out there. And plenty -- though somewhat fewer -- publishers. And there is the option to self-publish.
So while each side goes into negotiations seeking to get the best deal for themselves, mutually agreeable deals are entirely possible, with plenty of alternatives if it doesn't work out.
I don't see a problem with any of this.
Unfortunately, a lot of other IP industries have yet to catch on that creators should be treated well.
Creators should not be treated well merely because they are creators. Certainly it is not in the interests of any publisher to treat artists one iota better than the bare minimum they can get away with. A generous publisher runs a risk of being a badly run business, which leads to being an ex-publisher. Of course, I'm not saying that the publisher should go about whipping its authors, just that once an author worth keeping happy is made happy, it isn't necessary to make him any happier. There's no percentage in that. A publisher who wastes his resources doing that will be at a disadvantage in the marketplace, and either go out of business, or have to stop being so nice.
Anyway, the ability to take back a work that was not made for hire, but has instead been licensed, is not about deal-breaking. It is about preventing companies from taking a disproportionate share of the profits from the owner, who is the person we intended to incentivize.
It is about nothing other than deal-breaking.
The author was incentivized to create the work, because he did in fact create the work. The Constitution mandates that the copyright initially vest in the author. What the author decides to do with it after that point is entirely up to him. If he sells it for a mess of pottage, then that's his mistake.
But if a property becomes massively successful, why should a bunch of managers and lawyers who probably weren't even born when the property was created be entitled to perpetual profits?
Because the author apparently misjudged the value of his copyright. He should've held out for more. The publisher apparently was the wiser party to the agreement. But it was a voluntary agreement. No one twisted the arm of the author. He was happy enough with the deal to sign on the dotted line. Hindsight is no excuse for breaking the deal without consequences.
Remember also that the mere creation of a work isn't the only
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I have eliminated most of my commentary to present this analysis of Marvel motion pictures released since 2000. I mark that time period as the beginning of Marvel Entertainment's ability to bring characters and stories to life in a way they were never capable of before.
1. X-Men (2000) - 80% http://www.rottentomatoes.com/m/xmen/. Released in July with a budget of US$75mil, it grossed more that US$296mil http://en.wikipedia.org/wiki/X-Men_film without Arad and Lee on production.
2. Spider-Man (2002) - 90% http://www.rottentomatoes.com/m/spiderman/. Released in May with a budget of US$140mil, it grossed more than US$821mil with Arad and Lee on production. http://en.wikipedia.org/wiki/Spider-Man_(film)
3. Daredevil (2003) - 44% http://www.rottentomatoes.com/m/daredevil/. Released in February with a budget of US$78mil, it grossed more than US$179mil with Arad on production. http://en.wikipedia.org/wiki/Daredevil_(film)
4. X2: X-Men United (2003) - 88% http://www.rottentomatoes.com/m/x2_xmen_united/. Released in May with a budget of US$110mil, it grossed more than US$407mil with Arad on production. http://en.wikipedia.org/wiki/X2:_X-Men_United
5. The Hulk (2003) - 61% http://www.rottentomatoes.com/m/hulk/. Released in June with a budget of US$137mil, it grossed more than US$245mil with Arad and Lee on production. http://en.wikipedia.org/wiki/Hulk_(film)
6. The Punisher (2004) - 29% http://www.rottentomatoes.com/m/1131721-punisher/. Released in April with a budget of US$15mil, it grossed more than US$54mil with Arad and Lee on production. http://en.wikipedia.org/wiki/The_Punisher_(2004_film)
7. Spider-Man 2 (2004) - 94% http://www.rottentomatoes.com/m/spiderman_2/. Released in June with a budget of US$200mil, it grossed more than US$783mil with Arad and Lee on production. http://en.wikipedia.org/wiki/Spider-Man_2
8. Electra (2005) - 10% http://www.rottentomatoes.com/m/elektra/. Released in January with a budget of US$43mil, it grossed more than US$56mil with Arad on production. http://en.wikipedia.org/wiki/Elektra_(2005_film)
9. Fantastic Four (2005) - 26% http://www.rottentomatoes.com/m/fantastic_four/. Released in July with a budget of US$100mil, it grossed more than US$330mil with Arad on production. http://en.wikipedia.org/wiki/Fantastic_Four_(film)
10. X-Men The Last Stand (2006)- 56% http://www.rottentomatoes.com/m/x_men_3_the_last_stand/. Released in May with a budget of US$110mil, it grossed more than US$407mil with Arad on production. http://en.wikipedia.org/wiki/X2_(film)
11. Spider-Man 3 (2007) 62% http://www.rottentomatoes.com/m/spiderman_3/. Released in May with a budget of US$258mil, it grossed more than US$890mil with Arad and Lee on production. http://en.wikip
I want to express my opinion more! lol
This has me wondering what they plan to "do" with the IP involved...do they think its time the franchise was reworked to resemble original ideas or messages? Will they use it for making $$$ by doing deals with Disney/Sony/Whoever, on their own terms? Or will they let some of these characters just "die" and use their influence to introduce new, exciting heroes and villains, new powers and situations, grabbing a new (and old) audience with compelling characters and deep stories, as did the very comics that led to Iron Man, Thor et al?
And I would like more of the industry to follow that last idea, its already a trend that needs more attention: dropping old habits. What we, as a nation (off topic) need to do is seriously rethink how we conduct business. interact socially and how we prioritize science and health. Newspapers are learning the hard way, car manufacturers are struggling to innovate faster, and the comic industry has a chance to retool and rethink how they appeal to the masses, or they may end up like the banks and the car companies.
Or not, I'm high.
- 6 out of 15 films had budgets of US$100 or less. Out of those 6 films, all were first installments.
That should have read "... had budgets of US$100mil or less..."
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And the rest of that, which was muttered under their breath, was: "We've already bribed the appropriate politicians and judges, so we're certain of victory. It's good to be a megarich megacorporation. Money is power to run the government."
Bribery has become the geek's all-purpose excuse for his own political impotence and ignorance of the law.
The Disney studio has been around since 1923. You might think in that time it would have learned something about work-for-hire.
Well, that's half anyway; really the basis of copyright is encouraging authors to create and publish the most, in exchange for the least copyright, so as to maximize the net public benefit.
AFAIK nobody has even tried to find out what the optimal copyright term might be to do this.
A work cannot benefit the public unless it is both created, just so it exists, and published, so that people beyond the author can actually get and use it.
Thing is that the publishing industry isn't always very good at doing this. As evidenced by very popular works which had a hard time getting initially published.
Because the author apparently misjudged the value of his copyright. He should've held out for more. The publisher apparently was the wiser party to the agreement. But it was a voluntary agreement. No one twisted the arm of the author. He was happy enough with the deal to sign on the dotted line. Hindsight is no excuse for breaking the deal without consequences.
Not that much different from publishers (and others) wanting extensions of existing copyright terms. Even though all parties were happy with the original deal decades ago.
You've confused copyright with patents. A patent must be filed (published) in order to receive protection.
The right of first publication inheres on creation of a work. This is a common law right pre-dating the Statute of Anne, as well as a statutory right (I can't quote chapter and verse but I believe it was in most cases covered by state statutes until 1976, when it was brought into federal law, but I may be misremembering here).
Well, he writes copyright transfer contracts for a living, so I think he knows how copyright is granted. I don't think you need to lecture him on that. I think you're reading things that he isn't writing. This is what he said:
...and this is what the Constitution says:
That looks pretty much the same to me.
Examples of market failure and the legal fiction of the "rational actor" are hot stuff in legal theory right now. Your cold utilitarianism suggests to me that if you didn't graduate from Chicago, you would nevertheless have fit right in.
What's with the ad-hominem attacks? And Poisoning the Well, to boot.
It's okay for you to believe that, but the Constitution says otherwise. Monopolies are not granted lightly, so the Constitution seems to say precisely that innovators should be treated well merely for innovating.
No, it doesn't. I encourage you to re-read the text. It says that creators are to be granted exclusive rights for a limited period. You could interpret that as an intention that creators be treated equitably, but it's a stretch to say it says they should treated well. "Well', to me, implies treatment more favourable to the creator than merely "equitable".
Nice try, but no dice. The author was incentivized to create the work, but the incentives are both backward- and forward-reaching. If people with good ideas see too many other people with good ideas getting screwed, it potentially discourages future innovation.
Potentially. However, frankly speaking, creators have been getting screwed over by publishers since year dot, and as yet we have no shortage of creators, so I think you're making an Appeal to Fear. It appears that at least some creators are wise enough to read and negotiate their contracts appropriately.
At this point I feel I should emphasize that, speaking broadly, I don't disagree with the principle you're espousing, namely, freedom of contract (and the associated responsibility of adhering to said contract). But you have written your response as though 17 USC 203 were the only exception to that principle you've ever seen. But if this were the case, you could teach contract law to anyone in about three minutes. Most of contract law has grown up around the numerous exceptions to the "agreement plus consideration equals binding commitment" formula.
It is, however, the point of contract law at issue. One problem at a time, please.
True, but if you haven't recouped your expenses plus a significant profit after 35 years, you also probably do not have a property that anyone is going to try and reclaim.
So do you also believe that copyright itself should be limited to 35 years, regardless of the lifespan of the author? That is after all, by
Rgasuya aata! : I have been coding Perl and cannot tell where my fingers are now!
You linked to something that directly contradicts what you said. Or is it in another section?
Just as finally hollywood was getting things right in the way they were making Marvel movies, and not only adding proper special effects to match the abilities the superheroes might have, they also were able to give some good stories , compared to let's say that failed attempt in the mid 80s to bring captain america to the big screen.
I got to say though, it does not surprise me, it is almost like it smells of some sort of shady dealing. Either someone wanted to hurt disney, and make them spend money on nothing , or bring up their own stocks, I wonder how much he will hold out for, before giving disney the rights they are looking for. 1billion dollars sounds right?
But Disney doesn't directly control what Pixar creates.
Only because they choose not to interfere. Pixar has a few flops and I promise you that state of affairs will not last longer than this sentence. Disney is smart enough to not interfere with something that is working but I promise you they will get heavily involved the moment something goes even slightly off the rails.
Kirby was involved in the creation of both Spider-Man and Iron Man. Yes, Steve Ditko redesigned the character that Kirby created and drew the character's first stories. Don Heck drew the first story appearance of Iron Man because Jack couldn't draw everything. Kirby, interestingly enough, drew the covers for both first appearances of Spider-Man and Iron Man.
This is all well documented with citations on wikipedia.
Joe Simon also had a hand in creating Spider-Man. If you want to go back far enough, there's a pulp character called The Spider that one could argue was partial inspiration for Spider-Man.
-- Boycott Shell
There is actually a porno titled Pocahontas. I don't know if it has singing fucking animals, but it is rated XXX so I guess it's possible.
Rather that explain how I know this, I will simply post anon.
Everything's gotta come back to Jobs and co. doesn't it?
Disney pushed hard for nearly indefinite ownership of copyright & stifling the public domain. Now it's coming back to bite them on the ass. I love it.
How do you like them copyright lengthy laws now?
I'll wager this will cost you more then the money you made with extended copyrights.
The Kruger Dunning explains most post on
Your question assumes that "one of the women in [his] life" would have sufficient expertise to speak about Disney's copyright tactics. Yet there's no evidence that that's the case, given that most people lack that expertise.
It also assumes that only rape victims have the moral standing and experience necessary to compare things to rape. If the analogy were murder, rather than rape, would you argue that only murder victims should be allowed to speak?
I suppose one could argue that the only person who could evaluate the comparison would be a person (most likely female) who's both a copyright lawyer and a rape victim. No doubt, several of those people exist. Yet even so, this hypothetical person can't speak for all of us, since in forcing the Sonny Bono act et al. upon us, Disney's actions victimize the collective, not just the individual.
No one person can directly articulate the effect those actions have had on public discourse. OTOH, I'm guessing a decent number of people have landed in jail or prison, at least in part because of those laws. Given the state of the U.S. penal system, a few of those inmates have probably been raped, in the most literal sense. Would you speak for them as well?
In other words, you're being every bit as reductive and offensive as the OP (if not more so), and your righteous indignation is both misplaced and of no real help to rape victims, real or hypothetical.
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> Disney said in a statement, "The notices involved are an attempt to terminate rights
> seven to 10 years from now, and involve claims that were fully considered in the acquisition."
Nothing to see here, folks. Move along, move along.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Neither does a copyrighted work - it *transfers* money from one person to another.
Did you read past that sentence? You know, where I said "so long as there are customers to buy them?" You're arguing a distinction without a difference based on a hyper-literal, selective interpretation of an offhand statement.
Try taking some Colon Blow lighten up.
You've confused copyright with patents. A patent must be filed (published) in order to receive protection.
The right of first publication inheres on creation of a work. This is a common law right pre-dating the Statute of Anne
Well, that's an extremely common misunderstanding, actually. Remember, the House of Lords reversed Donaldson. Remember also that under the stationer's copyright, it was the publishers, not the authors, who had the sole right to publish. It was only after the Statute of Anne had become law that the publishers claimed that the authors had infinitely long-lived copyrights at common law. Which was entirely because the publishers had gotten their authors to sign contracts saying that all the rights of the author had be sold to the publisher in perpetuity. And even that was only after the publishers had tried, and failed, to get the statute amended to provide them with longer terms. No one had ever, ever had the idea that there was a common law copyright until long after Anne had been enacted.
But remember, I was discussing policy.
I will agree that it is certainly good policy to protect authors with regard to their manuscripts. A work does not usually spring like Athena, full-formed from the brow of the author. Usually it takes a significant amount of time, one draft followed by another, until the work is finally finished, or abandoned. If the work is finished, the author may decide to try to have it published, or abandon it. And having made attempts to publish it, whether by convincing a publisher to do it, or by self-publishing, the author may nevertheless abandon the work if those attempts are unsuccessful.
I say that if an author has abandoned his work to be left unpublished, then there is no public benefit in granting that decision the force of law to back it up. The public benefits when it can enjoy a work, when it can preserve that work for posterity, when it can make use of that work in the preparation of other works, and so forth. But if the greatest book ever written in the history of the world is sitting in a shoebox in a closet in a house in Peoria, and if the author takes the MS out and burns it in the fireplace, then I say that the public has not enjoyed even the tiniest iota of benefit from that work. And since public benefit is the touchstone of copyright policy, that author, having abandoned the work, should not have continued to have rights in it. The world would have been better off if someone had broken in, stolen the MS, and published it against the wishes of the author.
So I stand by my position that the policy goals of copyright are to encourage the creation AND publication of works, but to grant the least amount of protection necessary in order to accomplish the most amount of encouragement, so that the public is most able to enjoy the works without interference.
It's okay for you to believe that, but the Constitution says otherwise. Monopolies are not granted lightly, so the Constitution seems to say precisely that innovators should be treated well merely for innovating.
No, it says that Congress may -- it's not obligated, so there's no 'should' -- grant certain rights to authors if it promotes the progress of science. Secret books do not accomplish this as I've already discussed.
Your cold utilitarianism suggests to me that if you didn't graduate from Chicago, you would nevertheless have fit right in.
That's funny. I always viewed copyright as on the road to socialism, what with it being a system of government-based subsidies meant to benefit the public at large, though without abandoning free markets altogether either. And I like it like that. I'm just very hard-nosed about maximizing public benefit. I am neither pro- nor anti-author or publisher. Whatever they can get for themselves while the public benefits as much as possible is fine with me.
The author was incentivized to create the work, but the incentives are both backward- and forward-reaching. If people with good ideas s
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I encourage you to re-read the text. It says that creators are to be granted exclusive rights for a limited period.
A minor nit: It says that creators may be granted the rights, not 'are to be granted.'
The copyright clause grants Congress a power which it may choose to exercise, or not, at its whim; provided that if it does exercise the power, it stays within the bounds set by the clause.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Specifically, he says that securing publication is "half" the reason we have a copyright system in the first place. So I'll say it again: you don't have to publish at all to secure a copyright (as distinguished from patent law), so that must not be "half" the reason we have copyright.
First, I said that encouraging creation and publication was half the reason. The other half of the rationale of copyright is to have as little copyright as possible, if any at all. So I guess that encouraging publication would be more like one quarter.
Second, I think you're assuming that the current Copyright Act is synonymous with good copyright policy. I'd disagree. I've already discussed my reasoning for this in a recent reply post.
A better Copyright Act would grant a provisional right for unpublished but unabandoned works upon creation, so that an author who seeks to publish is not beaten to the punch by someone who has gained access to the manuscript. However, should an author abandon his work unpublished, the work should enter the public domain rapidly in the hopes that someone will do what the author did not, and get that work to the public.
Note that pre-1978 US copyright law only granted protection to registered, published works. Publication was key. But if an author was willing to publish without registering, then he got no copyright. This was appropriate since copyright was meant to encourage creation and publication that otherwise would not occur. An author who would publish without registration apparently needed no encouragement in the form of copyright, so he didn't get one.
This is the sort of thing we need to get back to.
I happen to believe that people will often create without any incentive at all--forgetting this leads to all sorts of strange interpretations of copyright law. The law wasn't made because without it, no one would create. The law was made to incentivize creation, so that it would happen more often. So anything that makes it happen less often would be against Constitutional policy, regardless of whether creation would stop altogether.
Well, I wouldn't say without any incentive at all. There are many 'natural' incentives to create and publish. Some people want to be famous. Some people create art for art's sake. Some people want to make money, but manage to do so in ways that don't involve copyrights (e.g. selling specific copies, taking commissions, providing artistic labor, patronage, etc.). In the case of this discussion, we are all writing copyrightable posts, but I sincerely doubt that any of us would not have written, online discussions even if there were no such thing as copyright at all.
Copyright is just an additional incentive, so regarding it being meant to get creation to happen more often, I agree with you. But that's not enough. We don't merely want creation to happen more often. We want works to be created and published more than they would be otherwise, since a created but unpublished work is of little value to the public. And we want that work to be in the public domain as soon as possible, since any given work is more valuable to the public when in the public domain, than when copyrighted. And we want the copyright to be as minimal in scope as possible, while still acting as an incentive, since more freedom for the public is better than less.
Merely maximizing creation and ignoring the rest would be bad policy.
So while one copyright law might encourage less creation than another, that's not the only basis on which to judge them. It is entirely possible that a copyright act in which there was, oh, 90% as much creation as we currently have, but which had drastically shorter terms, a greater rate of publication of created works, more freedom for the public, etc. could easily be superior to what's on the books today.
He is free to assert that the law is a bad idea, but his position that it is bad because it somehow violates basic contract principles is simply untenable. There are so many laws on the books inv
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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AFAIK nobody has even tried to find out what the optimal copyright term might be to do this.
Well, it'll tend to change over time, and it would be tricky to figure out, but I'd be satisfied with an honest and well-executed attempt to figure it out. There was an interesting paper by Pollock a few years ago that came up with 15 years.
My general strategy is to allow the copyright holder to decide. By requiring registration to get a copyright on a published work, and by having a term that is extremely short, say 2 years, with multiple renewals permitted at the end of the term, where registration and renewal require affirmative acts by the author and token payments, the author will likely only register works for which he was incentivized by copyright, and will likely only renew works up to the point where copyright incentivized him.
In practice, during the nearly two centuries that the US required registration and renewal, most creative works were not registered, and most of those that were, were not renewed. Putting these policies into place again (and dispensing with anything that would interfere with it, such as our participation in Berne) would also tend to align with how we handle patents (which must be applied for, and periodically renewed until they finally terminate, lest they terminate prematurely), and federal trademarks (which must be registered and periodically renewed).
It's not an unusual burden for authors, nor is it more than minimal to simply evidence a desire to have and keep a copyright on specific works, rather than as a blanket policy.
Thing is that the publishing industry isn't always very good at doing this. As evidenced by very popular works which had a hard time getting initially published.
Oh sure. Of course, self-publishing is still an option for the author who is certain his work will be a hit, but who cannot convince any third party publishers of this. And modern technology has made self publishing easier than it used to be.
Not that much different from publishers (and others) wanting extensions of existing copyright terms. Even though all parties were happy with the original deal decades ago.
Well, I'm interested in improving copyright law for the benefit of the public. If maximizing the public benefit is good for authors and publishers, or bad for them, I'm not very interested, save for what that means for the public. I don't want a policy that is dictated by either authors or publishers, but if it is in everyone's interests to give them some particular aid, that's perfectly okay. They shouldn't be listened to, but they're not the enemy either.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I'm sorry but this is the typical ranting that completely ignores the other parts of the "success" equation. You don't just create a comic book character and then sit back as it magically becomes the next Superman. This is the typical mistake of thinking that just an idea is worth 99% of a successful product or IP.
Unconsummated...? Does that mean that Disney haven't yet "done the deed" to the catalogue of Marvel characters...?
I appreciate your coherent responses. I do disagree with you, but it is becoming clear that I don't disagree with you as much as I thought I did. And you're teaching me some things, which I appreciate.
Good debate is always fun.
It seems clear, from the way capitalism tends toward eventual oligopolies and monopolies, or the way that certain deals are made impossible by irrational greed or similar, that dogmatic adherence and deontological approaches and mechanical jurisprudence often warp good ideas into bad ones.
Indeed. I have no ideological attachment to capitalism, or any other sort of economic system. I value the efficiencies and other benefits that capitalism yields -- or that we're told it yields -- but if the system can throw itself off the rails due to a sort of positive feedback, which results in those benefits no longer accruing, then by all means, let's regulate it so that we can have the benefits and reduce the risks.
Similarly with copyright, I want to maximize the public benefit. However that is accomplished, within the bounds of the Constitution and our civil liberties, I don't much care. I'm willing to put anything on the table, and I'm willing to consider any sort of scheme, or scope and length of protection. The effect of copyright upon authors and publishers (whether professional publishers or self-publishing authors) is an important factor to be considered, but it is only a factor, with the ultimate issue being the public good. If granting a copyright for a million years would benefit the public more than any alternative, I'd support that. If abolishing copyright would benefit the public more than any alternative, I'd support that.
But I suspect, and maybe this is just a failure of imagination on my part, that an ideal copyright law would strongly resemble the 1909 Act, its amendments, and its predecessors more than it would the 1976 Act and its amendments. Well, except for organization; the older acts are not nearly so well organized as the current act.
the simple choice to include a particular kind of work in the statute is unique and paternalistic; the original statutes didn't cover a lot of what is today considered copyrightable (my favorite example is boat hulls--WTF??).
Oh, the boat hulls are in Title 17, but their chapter really has nothing to do with the Copyright Act. It's argued that it is sui generis pursuant to the commerce clause. But since it protects original useful devices, it probably isn't even constitutional, unless you think that the copyright and patent clauses are superfluous, and that Congress could ignore them in favor of the commerce clause instead.
A better example would be architecture, which was added to the actual Copyright Act in 1990 as part of Berne compliance, and it's worth considering now.
There has not been a material increase in the number of architectural works created and published since the enactment of the AWCPA, which appears to be attributable to its passage. This suggests that architects don't really respond much to the incentive of copyright. The buildings that get designed and built seem to do so according to natural incentives. They'd pretty surely get built just the same even in the absence of copyright for architectural works.
So we shouldn't grant copyrights for architectural works, since it has no beneficial incentivizing effect, but nevertheless causes harm to the public, as copyright inevitably does, yielding a net public detriment.
This is as opposed to, say, books, or sound recordings, or movies, where their authors do appear to respond strongly to the incentive of copyright, though we're probably granting them more than the minimum to incentivize them as well, which is not good when calculating the net effect for the public.
While deciding what class of works to protect or not may be unique, in that it is a case-by-case issue, I don't think it's all that paternalistic. We're not offering the subsidy of copyright to authors because we feel sorry for t
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.