Ask Slashdot: How To "Prove" a Work Is Public Domain?

New submitter eporue writes: YouTube claims that I haven't been able to prove that I have commercial rights to this video of Superman. They are asking me to submit documentation saying "We need to verify that you are authorized to commercially use all of the visual and audio elements in your video. Please confirm your material is in the public domain." I submitted a link to the Wikipedia page of the Superman cartoons from the 40s where it explains that the copyright expired, and to the Archive page from where I got it. And still is not enough to "prove" that I have the commercial rights. So, how do you "prove" public domain status ?

Comments

Half the story

[DerekLyons]

Just because the story is in the public domain, that doesn't mean you have the ability to use the trademarks.

Re:Half the story

[Purity Of Essence]

There are more than a dozen companies distributing these cartoons on DVD and not paying anyone or asking permission. If they want to name-check "Superman", they can do that too. It's factual information, not product branding.

Where there might be a legitimate copyright issue is copying someone else's film transfer or encoded video, if something creative was done with the presentation, possibly including restoration. In similar cases, the court has ruled that exact duplication, even that requiring a high degree of skill, has no creative element and not covered by copyright.

https://en.wikipedia.org/wiki/....

Re:Half the story

[NostalgiaForInfinity]

That doesn't make any sense. If this were a trademark issue, they wouldn't be asking him to show that the material is in the public domain.

Re: Half the story

[NostalgiaForInfinity]

As I was saying, if this were about trademarks, they wouldn't be asking him to prove that the material is in the public domain; public domain is a copyright issue, not a trademark issue.

More importantly, though, you misunderstand the purpose of trademark law. Trademark law doesn't exist to "protect characters" or other intellectual creations, trademark law exists in order make sure that when customers buy something, they know who actually produced it. Applying trademark law to a 70 year old cartoon character does not serve such a purpose.

Re:Half the story

[JMJimmy]

I believe trademarks are where corporations should be able to protect characters of a franchise that is still being actively monetized.

Congratulations you've just created infinite copyright by that standard.

Re:Half the story

[vux984]

I believe trademarks are where corporations should be able to protect characters of a franchise that is still being actively monetized.

I hear where you are coming from, but then mickey mouse never enters the public domain.

And if Bill S, had incorporated and transferred his copyrights and trademarks to the coproration than the characters of Romeo and Julliette, Hamlet, Shylock, and all the rest would still be protected... from ever being used or referenced.

WHY is that ok? Culturally these characters should eventually be public domain. Can you imagine how much art and culture of today involves the use classical heroes and villains.

From Hercules to Dorian Gray, from Hades to Dr. Frankenstein. Would you prefer that all these characters belong to corporations forever trademarked?

One day another 50 or 100 years from now... why shouldn't the chracters of Mickey Mouse and Superman be equally available to screen writers and authors to incorporate, remix, and re-imagine?

From the countless Shakespeare reimaginings to TV series like Penny Dreadful that mix the Dracula tale with Dorian Gray and other "period' heroes and villains to the constant mining of greek mythology for new stories... culminating in stuff like Percy Jackson... this is a good thing.

Why exactly do you think today's "trademarked" characters SHOULD forever belong to corporations?

Re:Half the story

[flopsquad]

Bingo. In fact, the Supreme Court has explicitly come out and said that trademark is not to be used as back door perpetual copyright. See, e.g., Dastar.

Re:Half the story

[wvmarle]

There is no such thing as "public domain" for trademarks, as trademarks and copyrights are very different things.

There can be multiple companies with the same trademark coexisting legally: they may exist in different geographic areas (even within the same country or city), they may operate in different areas of business. For example, if you were to open a fast food shop and call it Walt Disney's Fries Company, the Walt Disney cartoon and theme park company may try to fight this, but they wouldn't stand much of a chance. Placing lots of Mickey Mouse and Donald Duck figures in your fries outlet or using a logo that looks like some fancy castle wouldn't be such a good move, though.

In contrast to copyrights, trademarks don't expire. The Ford car company exists for a very long time, but as long as they exist and the brand is used, no-one else can make Ford-branded cars. However if Ford were to go bankrupt, the company ceases to exist and the use of the trademark on cars ends long enough, other people may set up a new car company called Ford.

The same is going on in the computer world with the Commodore and Amiga brands. The brands exist, but are hardly if at all used. These trademarks do risk losing protection that way, even when registered (otherwise trademark trolls, like domain squatters, could just register any name they can think of and later sue for big bucks).

Re:Half the story

[vux984]

In contrast to copyrights, trademarks don't expire. The Ford car company exists for a very long time, but as long as they exist and the brand is used, no-one else can make Ford-branded cars.

And that's fine. I don[t object to the Ford car company owning a trademark on its logo and brand for as long as it makes cars... even if its thousands of years.

But take a look at Harry PotterTM, with its MugglesTM, and HermioneTM and QuidditchTM, etc... every character, every place, every THING in that entire fictional universe is trademarked.

That's not what trademarks were for. They do not exist to do an end run around copyright. This is what they are doing with it.

Re:Half the story

[Ungrounded Lightning]

free public domain cartoons means people get exposed to the character. but you can't make money on those videos because the character isn't trademarked by you.

I though public domain on the work but active trademark on the character meant you can make money on copies of the work but you can't CHANGE it, making a new work with the trademarked character, without violating the trademark.

But IANAL...

Re:Half the story

[cpt kangarooski]

It depends.

There's really no such thing as a copyright on a character; there's just copyrights on works, which characters may be part of. Also, where more than one work is at issue, note that the copyright for derivative works only applies to new material added in the derivative work; it doesn't protect the pre-existing material at all.

Not all characters are defined well-enough to be protectable by the copyright to begin with. The degree of characterization matters. A character that's nothing more than a chessman could get reused pretty freely. An extremely well-defined character probably couldn't be. This is like the difference between a butler that did it, but about whom nothing else is told in the book, and a well-defined butler (well, valet, technically) like Jeeves, where we know a lot about him (preferred foods, what he reads, his club, things he knows about, etc.)

So assuming a protectable character, the issue basically boils down to whether the first work in which that character appeared is in the public domain. If it is, then the character -- as he was defined in the public domain material -- is fair game. Otherwise, you'd just be making a derivative of a copyrighted work, which is infringing. Remember, character attributes that first appear in works that are still copyrighted are not available.

As for a trademark, it would unavoidably be lost in this scenario. A trademark can only exist where it serves to indicate that goods bearing the mark originate from a particular source. Since copyright law would allow anyone to make copies or new works which included the mark, and since in the event of conflicts, copyright law trumps trademark law (many people in this discussion have noted the Supreme Court's opinion in Dastar on this point), the mark could no longer indicate that copies shared a common source, and so it would become an unprotected generic mark. If that were not so, the trademark would act like a copyright, which would be unconstitutional.

You really can't any more...

[Anonymous Coward]

Unless the copyright office gives out such things (and I doubt they do), I'm not sure you can get proof. The fun thing is that they've changed the rules multiple times, invented nonsense like a "common law copyright" (in NY) and otherwise revived dead copyrights by law (the Supremes have no problem with that).

Major copyright holders want to kill the public domain and the very idea that the public is granting them limited rights which revert to the public at the end as it's a threat to them owning everything.

Silly Person

[MightyMartian]

Oh you silly person. There's no such thing as Public Domain. It's a theoretical construct at this point, and might as well be considered as mythical and unlikely now as unicorns and a third party POTUS.

Believe me, within 20 years, Homer's and Shakespeare's works will be owned by Walt Disney or Sony, and anyone putting on a production of Hamlet will have to pay royalties. This is the world that evil lawyers and culpable, retarded politicians are creating.

Re:Silly Person

[Etherwalk]

And then some an IP legal firm can just come along, blanket declare it theirs whenever they feel it, and he's buggered anyways.

Take it from me. Unless your worth a few billion bucks, your ownership and right to dispose of IP as you please is long gone. We have new lords and masters, and we will do what they like, or we'll get the hose again.

Actually, there are sanctions for lawyers who are untruthful to a tribunal, and federal judges, as a rule, are not complete morons. If the copyrighted work is clearly out of copyright, you can win, you just need to understand the process well enough and to spend some time and/or money on it. (Usually this means you have to be or hire a lawyer.)

For Superman, I'd be concerned, though, that even *if* the old version you identify is out of copyright (which seems odd), it would be easy to borrow elements introduced in later versions of Superman that are still in copyright.

Re:Silly Person

[fnj]

Don't be silly. The OP should just release his video in the Public Domain, and send that public domain notice in.

And how precisely does he do that? State precisely what you mean by "release ... in the public domain". I don't think you've thought this through.

"Public domain" is a negative legal construct. The method by which a copyrightable work enters the public domain is by the copyright expiring. The copyright (a positive legal construct) is automatically attached ipso facto to the work as soon as the work is expressed.

Now, if you own the copyright, you can certainly attach a license (such as the GPL or BSD or Creative Commons) allowing its free use under certain expressed conditions (up to and including completely permissive with absolutely no strings applied). That is about the closest you can come to making a work public. But you have to own it. You can't just pick up an arbitrary work and take it on yourself to "free" it. That would be anarchy.

The cartoon is either public domain, or it isn't. There is nothing you can, or need to, do to make it so. All you can do is conduct a diligent and effective search for rights holders, and establish a negative - that no one can be found who owns it.

I'm not saying I necessarily agree with this. It's just the way Things Are.

Oh yeah, it's probably pretty obvious, but IANAL - however, I have read some pretty lucid and informed writings on the subject.

Re:Silly Person

[ihtoit]

Superman (from Action Comics #1, his first appearance) is still under copyright. He will remain under copyright (owned fully by Siegel and Shuster while the trademarks are owned by Warner Brothers Entertainment) until 2033. There is nothing short a Constitutional amendment, that will further extend the copyright.

HOWEVER, the story of the Fleischer Superman cartoons is complicated by the fact that before the 1976 Copyright Act came into force, NTA (who then owned the copyrights to most of the Fleischer library) had actually let the copyright on those 17 works slide, and they had simply forgot to retroactively renew the copyright as they had the right to do as they would have been within the time limit to do so until 1983. Ergo, the Fleischer Superman cartoons entered the Public Domain by virtue of natural copyright expiration.

Re:Silly Person

[Trogre]

Please don't misunderstand me when I make the following comment in response to your post:

Fuck that.

Re:Silly Person

[AmiMoJo]

That's the basic problem here - YouTube is asking people to prove a negative. Their system is set up for showing that the uploader owns the copyright on a work, but when no-one has that copyright it breaks down.

Unfortunately the response "show me someone who does own the copyright" is unlikely to be accepted, unless the OP is willing to go to court. Perhaps the publicity will get YouTube to revise their policy.

Re:Silly Person

[StikyPad]

YouTube is asking people to prove a negative. Their system is set up for showing that the uploader owns the copyright on a work, but when no-one has that copyright it breaks down.

Exactly, and that's the opposite of reality. Everything is in the public domain unless someone asserts their copyright.

Re: What problem?

[JMJimmy]

Public domain just means anyone can use it for free. If you can get some sap to pay money for something that's free, good on you.

Re: What problem?

[bistromath007]

That is specifically what public domain does NOT mean. Anyone can make money off things in the public domain, if they can find a way to make them valuable to others, up to and including simple reprinting or rebroadcast.

Re: What problem?

[Anonymous Coward]

Public domain just means anyone can use it for free. If you can get some sap to pay money for something that's free, good on you.

I've given up on trying to talk sense into morons like him, who know absolutely nothing about a topic yet decide they just have to comment on it anyway. For every one you set straight, several more takes his place. It's like the Hydra of stupidity. Stupidity, or a very, very desperate need for attention.

Re: What problem?

[Anonymous Coward]

That's not preventing Google from putting different requirements for making money on their service. They can refuse to pay you if the work isn't yours if it is public domain. Since the work is public domain, you cannot require them to pay you for use of the work itself either. (Formats, and the simple act of uploading a copy, aren't copyrightable, so your act of uploading it doesn't matter.)

Re: What problem?

[Anonymous Coward]

Oh shit, this guy's on to us.

Re: What problem?

[Desler]

Sure, but Google is not legally obligated to pay you ad money for it.

Re: What problem?

[Anonymous Coward]

Hail Hydra!

Re: What problem?

[N1AK]

You may be pretty sure, but you're still wrong.

Public domain means you can use it as you please. One perfectly acceptable use is to sell it; though obviously you'd have to find someone willing to pay, but often people will due to ignorance, convenience or value added services.

Dastar v. Fox

[tepples]

The court ruled in Dastar v. Fox that a trademark cannot be used as an ersatz copyright.

Re: What problem?

[skywire]

When you are utterly ignorant of a topic, you would be well advised to keep your random neural firings to yourself.

Links

[Futurepower(R)]

Dastar Corp. v. Twentieth Century Fox Film Corp

Dastar Corp. V. Twentieth Century Fox Film Corp. Et Al. No. 02-428, Supreme Court of United States

You can't, in general

[mbone]

I am not a lawyer, this is not legal advice.

You can't in general prove that something published post-1923 is public domain. We do not have (any more) a requirement to register copyrights, plus we now have very long copyright terms. Either would be bad, the combination is (quite deliberately) pernicious. It means that, while you may have good reasons to assume that something is PD, you can almost never know for sure. There are two major exceptions - works that have been declared to be PD by their owner, and works by the US Government (which are PD from birth). US Government works are generally pretty safe, but works declared PD are not always (as you have no way to prove the donor actually owns them).

If you think that this implies that our copyright laws need to be changed, you are IMO correct. I would go for a term of 14 years, one renewal possible, with registration required. The wailing from the rent-seeking entertainment industries would, of course, in that case be something to behold, but that would have some entertainment value in its own right.

Pre 1923 Works & Failure to Renew Copyright

[Anonymous Coward]

1. I am not a lawyer.

2. General public domain works are pre-1923 works. Works post-1923 that are in public domain are so for technical reasons, such as failure to renew copyright.

3. Wiki claims the cartoons are in the public domain by linking to page 13 in Superman vs. Hollywood in Google Books.

4. On page 13, it asserts "By the latter part of the century, Max Fleischer's Supperman cartoons had fallen into the public domain, where they were subject to all manner of ignoble treatment by third-rate video distributors." (https://books.google.com/books?id=OmYt2xaxktEC&pg=PT25#v=snippet&q=public%20domain&f=false)

5. This assertion in 3, however, is not evidence that nobody currently owns rights to the cartoons.

6. It would appear from surrounding text in Superman vs. Hollywood that Warner Brothers is likely the current rights holder to Superman.

7. To prove the cartoons in question are available for public domain use, the following (perhaps more) would likely need to occur:
- Show no current copyright on said material by showing expiration of copyright and doing exhaustive search in pre-1978 and post-1978 archives via http://copyright.gov/records/index.html
- Show statutory justification that expired copyrights in fact enter public domain
- Show that the work in question meets the aforementioned requirements

Re: What problem?

[bistromath007]

If the video you post is, for whatever reason, popular enough that it could bring in ad revenue that makes it profitable vs. not continuing to host and distribute it, there is absolutely no basis for them to refuse to pay you. The reason you generally can't make money on stuff in the public domain isn't because you're not allowed to, it's because anybody can use that same thing and put in exactly as much effort as you did.

TotalBiscuit could post a public domain video, and it could make a shitload of money, because lots of people already follow him. You could post it, and your grandmother might notice. This is absolutely no different from when shows and movies that are in the public domain are rebroadcasted by cable companies. The content doesn't really have any monetary value; the distribution channel does.

If Google really wanted, for whatever reason, (I think that's a dickheaded motive, honestly) to prevent people using their services from profiting from public domain works, then what they should do is create their own public domain channel, and heavily weight it in search results for anything the collected works are relevant to. I wouldn't even be all that mad if they did; it'd make public domain material more visible and accessible to people who wish to repurpose it for transformative works.

Re:Don't you recall.. no value in public domain.

[ihtoit]

hmmm... or Grimm, or Anderson... better have a word with Disney, "Frozen" is worthless. Ignore the fact that it's made them US$1.3BILLION in box office worldwide and sold over 7 MILLION copies on DVD and Blu-Ray in the first week of release in the US. (source: NIS) Yep, public domain works are worthless.

A wikipedia page claiming something isn't proof?!?

[nedlohs]

Who would have thought!

Project Gutenberg procedures might help

[gbnewby]

This might help: https://www.gutenberg.org/wiki...
And, the updated "Rule 6 How-To" at https://copy.pglaf.org/

For something published in the US after 1923 and before 1964, renewal of copyright was necessary to get a further 28-year extension. (Term extensions in 1998 extended copyright of items published in 1964 onward, and removed the need to renew.)

The Rule 6 how-to has a template for non-renewal research that might satisfy YouTube, if you do the research and send it in.

Only around 10% of items published from 1923 onwards were renewed. (It's no longer required, but you can still renew today.) The US Library of Congress has records of copyright registrations and renewals, and the Rule 6 How-To describes where to get the records. For items from 1923-1963, the renewals for printed items are comprehensive.

Serialization is sometimes a problem. Items might have been published, then published in another form (say, a magazine article that was published as a book), and if the timing is close enough one renewal might cover both items.

Proving something is in the public domain in the US, for printed items, is not that hard for items published from 1923-1963. It takes some time and expertise, and there is always a chance there is a renewal that you didn't find. Proving it is still copyrighted is also easy: show me the renewal.

    - Greg

Re: What problem?

[stevedog]

Not to mention the basis of "it is our service, so we get to decide what can and cannot be monetized." Google is a private company that lets you use their site, not a government entity granting a license for a business.

Re: What problem?

[donscarletti]

If the video you post is, for whatever reason, popular enough that it could bring in ad revenue that makes it profitable vs. not continuing to host and distribute it, there is absolutely no basis for them to refuse to pay you.

If it's public domain, they don't have to pay anyone. Google has just as much rights to make money from a public domain video as anyone else, if you don't like it, host it yourself.

The bald faced hypocrisy of "this work is public domain, damn Google for not paying me for it!" just discredits everyone here calling for more works to enter the public domain. Google is doing what a good publisher should do, sharing public domain work and collecting a small revenue to pay for its trouble, "eporue" on the other hand is a parasite, seeing rent on something he didn't create, like some feudal baron. Adam Smith and Karl Marx agree on one thing and one thing only, rent seeking is inherently bad, so whether you are a conservative or a socialist you should join together and pillory this leech.

Re: What problem?

[skywire]

"Believe"? "Imagine" or "Arbitrarily choose to declare" would come closer.

Re: What problem?

[bistromath007]

Thank you. People arguing against this seem to have completely missed my point. The reason I say that "Google has no basis to refuse payment" is that there is no way in which they stand to profit from discouraging people from this behavior, which is what refusing to pay people who do it does.

They are the ones who instituted the convention that, if your video is popular, you get money. The natural consequence is that people do lazy things to attempt to become a popular channel. If it works, so long as it's legal, it's bullshit for Google to renege on that deal, because they're ultimately making money off videos you post whether or not they give you a cut.

Re: What problem?

[donscarletti]

If he is providing a copy of a video that is unavailable on youtube then he is providing a service and I have no problem with him getting a little revenue from it. One problem with streaming media is the long tail and most stuff in the public domain has very little value and therefore very little incentive for someone to upload it.

I have no problem either with this either, but Google does not choose do do this and he has no standing to dispute it. If he had a contract or even a verbal agreement to begin with, you could say that Google acted in bad faith, but he didn't, he merely gave an unsolicited video, explicitly not covered by copyright to Google and asked for a cut. It's not wrong that he asked for a cut and if Google had have given it to him, I would not object to it, so long as they did not prevent others from re-uploading the same video under the same terms.

What I do object to is the gall of this guy to come to Slashdot, a notoriously pro-free-use forum to complain about Google using this public domain video without paying him. If he did make this work more accessible, it pales in comparison to the work that Google have done, providing hard disk space, bandwidth and searching capabilities. If he wanted to distribute it, why didn't he host it himself?

Re: What problem?

[sir-gold]

Taking a copyrighted work who's copyright is about to expire, and republishing on a newer format such as VHS or DVD, does not renew the copyright.

You don't have to use the original source if the copyright is expired and the new source is identical to the original. However, if the newer version has been altered (cgi added or something) then the added CGI would have a new copyright term, separate from the original copyright (but would only cover the modifications, not the original content)

Good luck...

[Chozabu]

A video of a game I made was refused.

https://www.youtube.com/watch?...

As evidence - I submitted the link to android market place, where I am selling the game - offered source code, source assets, etc. Several times, along with asking what would do for valid evidence.

150k views later, lots of evidence and questions from me... "monetization rejected" and still ignored.

And that's with A video I made, of a Game I made!

Re:Good luck...

[Cederic]

Write yourself a letter granting authorisation to publish and monetise video footage of the game you wrote, sign it, scan it, and send it to Youtube as proof that you have authorisation.

Re: What problem?

[T.E.D.]

Public domain just means anyone can use it for free. If you can get some sap to pay money for something that's free, good on you.

Its a bit more than that. You can actually tweak a Public Doman source an eensy bit, and copyright the result. This is what is behind the new classic literature mashup genre (eg: Pride and Prejudice and Zombies).

This summary is fishy...

[MobyDisk]

YouTube claims that I haven't been able to prove that I have commercial rights to this video of Superman.

I've never heard of YouTube doing this. If this is the US, then something is missing here.

If YouTube wants safe harbor under the DMCA, my understanding is that they can't require that you prove you own the copyright. Instead, they have to let you publish the content, then wait for someone to file a DMCA complaint against you. Then, once you file a counter to it, YouTube must allow the video to go back up. I'm not aware of any point in the process where YouTube gets to determine who owns the copyright.

You didn't mention anything about anyone filing a DMCA claim against you, so I'm totally confused where this requires to prove your commercial rights comes from. Ultimately, the answer here is probably "get a lawyer." Especially since you mention "commercial."