I should think that they should have that right. If the work is important to you in its original glory, this is a good reason to have more than one copy.
We are dealing with information here -- it's not especially important if you're looking at the original or an equally good replica.
You're basically talking about a historical attachment. A sentimental one. And I endorse preserving historical artifacts, which is why if you're concerned about this, it would be a lot smarter to have it bought by a well-funded museum that promised never to fuck around with the original.
It _IS_ censorship. But it is totally voluntary self-censorship.
Your freedom of speech does not mean that I have to listen to you. It also doesn't mean that I have to listen to everything you have to say: maybe I'll tune in for part, and then leave after a while, regardless of whether you like that or not.
The freedom to edit a movie for one's own consumption, or even to suggest edits to other people, is exactly the same as the freedom that I have to close my eyes during a scary movie, or to cover the eyes of my children during a sex scene.
I absolutely HATE, I fucking LOATHE, censorship forced on me by other people.
But I have no problems whatsoever with exercising my OWN taste and discretion with regards to myself. If I don't want to watch a crappy movie, I won't. If I don't want to watch a certain crappy scene in an otherwise good movie, I won't.
You can kindly go to hell. Because you're a censor. You're telling me what I can watch. And you're telling me what I cannot watch, viz. bowdlerized versions of things.
I can't figure out why. I'm not telling you what you should or should not do. What gives you the right to control what I see, jackass?
You're upset that I might not understand what the artist is trying to say. Well I might not WANT to understand what the artist is trying to say. I might not CARE. Are you daring to become the thought police, telling me that I HAVE to care, that I HAVE to understand. In my book, that makes you a facist.
OTOH, I wouldn't watch a CleanFlicks version of a movie. Except for the novelty value. Or if it appeared that the edits actually made the movie better than before. I have no desire to practice that sort of self-censorship.
But I should still have the right to do so if I so please!
What if I watch a French movie, but I don't know French? Isn't there a significant chance that I won't understand it? Is that anyone's problem but my own?
Furthermore, is it necessarily a problem? Maybe my misunderstanding will be enlightening to me, or inspire me to go create my own movies, or otherwise have beneficial results. (Don't laugh: IIRC Adam Warren had a similar experience)
Hell, how far do you want to take this? What if I watch a movie, but I'm too stupid to understand the deeper meaning of the creators that they were trying to convey? Is that actually such a bad thing that we need to rate movies by what the audience's IQ and cultural literacy has to be in order to go see them?
Sounds like a nightmare world to me.
How about we just let people cope with works of art as best as they can, and however they like. If it works, great; but there's no guarantee that there will be perfect communication. Why should there be? It's just a movie.
Huh? First Sale means that after the first sale, there are no restrictions (basically) on all subsequent sales. Profit or no.
Otherwise you'd destroy the entire used media industry -- used books, CDs, videos, software, etc., not to mention rental, private libraries, or much lending in light of the NET Act.
As for changing the story, can't I already do this by skipping past certain scenes with a mere fast forward button? Or just leaving the room?
And who the fuck are you -- even if you're the author -- to tell me that I HAVE to experience something in a certain way. How authoritarian is that shit? I'll enjoy or not enjoy a movie as I see fit, thanks. If I want to read the last chapter of a mystery first I will. You can go to hell. I don't care if it ruins it. If it does, that's my problem, not yours.
Hardly. Such a player probably wouldn't be okayed by the DVDCCA. This means it would have to violate 17 USC 1201. Plus, given the absurd MAI v. Peak decision, it's probably illegal as to 17 USC 106 re: copying.
If someone creates a piece of software its a service.
Uh, not especially. If someone creates a piece of software, that ACT of creation is a service. The resulting piece of software is not a service, it is a product.
It's certainly not stealing. After all, there are a lot of illegal and even immoral things other than stealing. I'm sure you can at least avoid calling something by the wrong name. Unless you're deliberately trying to confuse the subject. And you can't steal labor anyway -- getting someone to labor for free is typically accomplished through fraud or breach of contract.
Napster/Kaaza/Morpheous situations and Skin creators are two completely different issues here.
Not particularly. There's a difference in that the skin creators are direct infringers, and the P2P services may be (or may not be, if they were careful about how they did things) contributory or vicarious infringers. But their problems were founded on their users being direct infringers. And the skin site is, if not a direct infringer, at least a contributory or vicarious infringer, I'm pretty sure.
They may have escaped this by complying with the DMCA safe harbor, but despite the ease of almost totally covering one's ass in this manner, it doesn't seem to be all that common among non-corporate sites. Pity. It's the one halfway tolerable part of the DMCA. (kind of like how there's a good part of the CDA, which was otherwise an awful law, and we're glad to be rid of it)
As I stated previously, the Napster example is making a copy of a master piece of work.
Actually there were two types of underlying direct infringements in the Napster case. Making infringing copies was the offense of the downloaders. Distributing copies in an infringing manner was the offense of the people that allowed people to download from them.
Making skins are not.
You're right. Making a skin is not the same as making a copy. But there are other ways to infringe a copyright than to make a copy. See 17 USC 106, and note well that only ONE part of that involves making a copy; distribution, derivatives, and public performances and displays are equal offenses!
The two Copyright acts focus specifically on examples such as Napster and when people make copies of a piece of work and distribute it.
I'm not quite sure what "two Copyright acts" you refer to. The 1976 Act is the most recent, and it replaced the 1909 Act. The post-1976 amendments have not been omnibus revisions of the law that would really care about such broad topics. Please clear up this minor confusion by being more specific, ok?
Anyway, yes, making a copy can be an infringement. Distributing that illegal copy can be an infringement.
But there are other infringements. Such as making a new work from scratch if it is sufficiently closely based upon an existing work, despite there not being any direct copying.
Example: creating a movie based on a book. The movie is derivative of the book. But the words in the book might not appear on screen. The characters and situations might be somewhat different. As long as one is based on the other, to a greater extent than merely borrowing general ideas and concepts, it's derivative. And it's illegal under 17 USC 106, barring some exception or authorization. Look it up!
when people make copies of a piece of work and distribute it. Marvel doesn't make skins, they're created from freehand art so how can this site be considered copyright infringers. The Acts do not cover this at all.
Well, they do cover this, as noted, in 17 USC 106, regarding derivative works. Hell man, you do understand what the word 'derivative' means, right?
There's no evidence or SOLID proof of infringement
I've got to disagree. There are skins. The visual appearance of the skins resemble the visual appearance of superheros from the comic books. The one picture sure looks like it is based upon the other, even if it was created from scratch. Is there some question as to whether the skin creators, with no knowledge of the Marvel characters just happened to create Spider-Man, or the Hulk? That would be okay. But I'm going to go out on a limb here and bet that they deliberately set out to copy the design of the costumes as portrayed in works of visual art in the comics, and recreate them in works of visual art in the computer. It's a derivative work. It's an infringing work.
I am a big proponent of IP reform, I hate what's being done with the law and to people by the RIAA, MPAA, etc. But if I were on the jury, I'd vote i
And I'm behind you. I enjoy a number of different instances of fan art or fan fiction. Sure a great deal of it is crap, but a great deal of everything else is too. The good stuff shines through in the end. And of course, there's plenty of fan-art-esque versions of classical mythology, or Shakespeare, or whatever. Some of that is good too.
I don't think that original works should be elevated above derivative works.
Well, the Cinderella FAIRY TALE is in the public domain. I can make my own version of Cinderella. So can Disney. And they did.
Those versions we each make are then copyrighted, but only with respects to the portions of the story that are original to those versions. For example, the artwork, and the script and music in Disney's version is protected. The plot is generally not, nor the characters, situations, etc.
I was using it as an example to show that Disney likes to make movies based on public domain works, that they then trademark what they can with regards to those works, but it doesn't stop other people from directly competing with them, and even using very similar trademarks.
Well, I am a true artist. Or at least, I managed to support myself as an artist for several years before I decided to change professions into something vaguely art-related. (guess what my new job will be -- you may be surprised) So I'd like to think I have some sort of idea of what I'm talking about.
The issue isn't so much creativity as it is the audience, actually. If I wrote a novel in gibberish, it's going to be virtually devoid of impact. It has to be sufficiently closely related to existing art -- both in form and tropes -- in order to be understood.
For example, a lot of westerners now probably don't have the level of knowledge needed to understand the messages being conveyed by biblical art of several hundred to a thousand years ago. Not fully anyway; certainly I bet it would be difficult for people to tell one saint or apostle from another just by looking at them. But it was clear at the time. When you study the art of a different culture, the problem can be even greater, because there's a lack of common ground needed for communication.
Art as a sort of solo endeavor is nice, but I think it's not entirely unreasonable to expect art deserving of copyrights (i.e. art that is desirable to the public) to have something in common with the public.
Besides which, there is a seperate issue. If you're a wealthy, powerful, established artist, you will be prone to wanting to prevent people from horning in on your act. Therefore if someone creates something original but that threatens you and is not entirely dissimilar, you might claim infrigement to not just protect your own works, but expand the breadth of your control.
Anyway, I do suggest reading "Melancholy Elephants." It's by Spider Robinson, it addresses this issue very nicely, and it's online somewhere or other.
You're misinterpreting my statement, though I'll consent that in one area my statement overreached. It would be legal to display "Steamboat Willie" in any context, and to use the artwork in another form. It would not, however, be legal to create a new work with the character Mickey Mouse from the cartoon, since Mickey Mouse is a trademark continuously in use and thus protected.
No, that's exactly how I interpreted your statement. I just think you're absolutely wrong.
Such a trademark would in effect create a copyright. This is blatantly unconstitutional. The commerce power (from which trademarks originate) CANNOT be used to create copyrights. Copyrights MUST be of limited duration. Much like how the Copyright clause cannot be used to create trademarks. (which was tried in the 19th century and held unconstitutional)
No, you could create a derivative work of other characters on a steamboat like that one, since the steamboat isn't a trademark. But if you include Mickey in the work, you'd be in court in no time. You could make videos and sell the cartoon, you could print images from the cartoon on t-shirts or in books or put them in big frames and sell that. You could absolutely not create an entirely new work, claim you're deriving it from "Steamboat Willie", and use Mickey, a currently enforced trademark.
Then in that case you're telling me that I cannot make any POSSIBLE derivative work of Steamboat Willy.
This means, in effect, that Disney by virtue of a mere trademark, is retaining a de facto copyright, that is, a power just like a copyright, with respects to SOME of the possible derivatives that could be based upon Steamboat Willy.
A derivative work can be amazingly derivative, so much so that it isn't a copyright infringement (such as recycling a basic plot, like two lovers from feuding families), or it can be just barely this side of an exact copy (the colorized version of Casablanca).
As long as the new work is based upon the original work, and is not an exact copy (or perhaps also not an adaptation, such as vidcapping the film version of Casablanca into a computer-readable format), it is derivative.
As for the Comedy III case, you left out the best part: If material covered by copyright law has passed into the public domain, it cannot then be protected by the Lanham Act without rendering the Copyright Act a nullity. See, e.g., Smith v. Chanel, Inc., 402 F.2d 562, 565 (9th Cir. 1968).
Just so you know, courts HATE having laws turn out to have no effect. Worse still, the Copyright Act contains an expiration date because the Constitution requires it to. If that date didn't mean anything for ALL of the rights granted in a copyright, including the right to make any and ALL derivative works, it would mean that the Lanham Act was contradicting the Constitution. You can't really get a bigger no-no than that.
The real problem is that this has not been squarely addressed by the courts due to the extreme (extremely stupid, I should say) length of copyright terms, and the relatively recent practice of trademarking characters. The Amos 'n Andy case got close, but managed to dodge the issue as well. I've been looking, but have not managed to find anything better than Comedy III. Let me know if you see something that's on point.
Anyway, while I doubt I'll ever see Steamboat Willy hit the p.d., there are other trademarked fictional characters in the p.d. out there. My plan is actually to create a comic book (since trademarks are for specific channels of commerce), then file for a declaratory judgment, instead of waiting around to get sued. By filing prior to sale, but where entry into commerce is imminent, I avoid the possibility of having to pay damages if I lose, God forbid. After all, the work is p.d. so mere creation is irrelevant as grounds for damages.
Should be interesting, but it'll have to wait for a few years so I can take care of prior commitments and gather the necessary resources.
Yeah, but the purpose of trademarks is not to identify a product so much as it is to indicate that different instances of the same product share a common source.
If Marvel makes Spider-Man comics, and I make Spider-Man comics, then the Spider-Man trademark no longer indicates that all Spider-Man products originate from a particular source.
Even though it's perfectly clear in both instances that it IS Spider-Man.
You've pointed out the nominative use of a mark, that is using a mark to refer to the product, as being okay. But that doesn't excuse using a mark to refer to a product from a different source.
Even when you take Coca-Cola, mix it with vodka (sounds disgusting) and resell that, you're probably not claiming to have manufactured that Coca-Cola, nor is there confusion regarding the source of it.
Here, someone else is claiming to be a source of Spider-Man stuff, and this can lead to confusion regarding source, which is the basis for an infringement action.
With only a few limited exceptions, you should be aware that people CANNOT get the right to use Spider-Man in their own products without permission. Parodies are about the only significant way that it's possible. Nominative uses are really just using a mark to refer to products of the mark holder, by and large. I.e. our conversation would be stupid if we had to dance around the subject by talking about a 'male, spider-oriented costumed superhero' (which could in fact refer to several superheros). But that's not an excuse to make your own Spider-Man stuff.
You have to read the Act documentation as a whole.
No, not really. But I do. I love the general concept of copyright law, and I read through it for fun. With luck I should be practicing IP law in the not too distant future, next Sunday A.D..
Most of this Act focuses on laws, penalties, and processes for duplicating an exact copy of an original work.
No.
The law treats all of the 17 USC 106 rights more or less equally. There are exceptions to everything, but overall it is just as bad to illegally make a movie based on a book as it would be to xerox that book to begin with.
Certainly there's a lot of effort put into things like statutory licensing of music with regards to derivative works and public performances.
This Copyright Act seems to be the result of reactive procedures the 'interests' take to keep the money rolling in to them and only them.
Yeah, a lot of laws are like that. Squeeky wheels get the grease and so forth.
Should D.C. Comics get a cut or a royalty off a kid who puts on a Red Cape with an 'S' on the back and flys around the yard pretending he's Superman?
Should they? No. Do they now? No. Is that germane to this issue? No, not really.
To me whole issue with Marvel and the Skin site is just a modernized version of running around the yard with a Red Cape as a kid as Players like to fantasize about playing Superheros.
Which is great, but the copyright aspect of this case is pretty unconcerned with fantasy. It's concerned with people making and distributing those capes, as it were.
This site provided a resource for On-Line Gamers to put the proverbial cape on for free. How, in the weak wording of both the Acts/Laws, is the Skin site Violating Copyright or Trademark infringement laws?
There are several different sources of law. Statutes, as you've figured out, are passed by Congress. Caselaw, and common law, OTOH, are created by the courts -- either as the definitive interpretations of ambigious statutes, or as filler where there has been no legislative activity.
Thus, although it's not really mentioned much (though it is recognized) in the stautes, there are doctrines of contributory and vicarious copyright infringement, whereby one person's direct infringement will cause other people to also become liable.
Napster, for example, did nothing more than provide a resource for music fans to distribute and copy music for free. But those music fans were distributing and copying illegally. And Napster helped in such a way that they were responsible too. (if they'd acted differently, they might have gotten away with it; but they didn't try to work within the law and still do what they were trying to do)
These guys are little different. They're, if not direct infringers, are helping other people to directly infringe.
That's not really a bad thing, you know. Smoke is about the stupidest delivery system for a drug ever. Skin patches might not be as romantic, and might require more infrastructure, but they're probably a lot healthier than getting crap stuck to the insides of your lungs!
Pft. The fucking Berne convention came from Europe. Moral rights came from Europe.
The US was doing _great_ until the 1976 Copyright Act. Hell, we have the foundation to be great again. It'll actually take a lot more work for Europe to fix their IP.
Skins may be a form of art in some restpects but the way Art is defined on with this Act does not imply skins. Skins are a 'grey area' that is not explicitly defined, Art Infringement is worded like you're going to make and sell knock off's of a Rembrant.
Oh? Well, let's see. In the actual LAW, 17 USC 102, the only thing really discussed is this:
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:... (5) pictorial, graphic, and sculptural works....
Didn't seem to say anything about 'fine art' there did it?
Congress made the following comment discussing this law in the legislative history:
This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.
So now it sounds as though you can be Rembrandt, or you can be a three year old child playing with fingerpaints. As long as you didn't copy your work, and it's sufficiently creative, which is an amazingly low standard that's meant only to exclude preexisting facts, it's copyrightable.
Certainly I cannot imagine why a picture of Lethargic Lad would not be copyrightable as opposed to a Rembrandt. Certainly it would seem to leave Roy Lichtenstein in a perilous situation.
If that picture is copied directly, or if a new picture is based on the original (as surely happened here), then it is infringing. It doesn't matter if the particular form of the derivative is a comic book, a novel, a movie, or a skin for a video game. It is clearly based upon a copyrighted work. It is derivative of that work. It's infringing.
If you think skins are a grey area, it's because you can't see clearly. In fact, it's absolutely clear.
Commercial use is that which is regulated by Congress/Law. Skin trading is anything but that it's just plain and simple Hobby. Last time I checked, Hobbies aren't regulated.
Ok. You say you checked. That is, you say you actually LOOKED AT THE LAW. Then you will have no problem whatsoever in showing me where noncommercial copyright infringement -- perhaps in the form of a hobby -- is made allowable?
Fair use MIGHT cut it -- but it just as easily might not. And if you claim Fair Use, you'll have to actually run through the entire analysis just like a court would, since a mere allegation of fairness is worthless. But you've just indicated that you can back up your statements. Now I'm calling on you to do it.
But I'll bet you $20 that this is infringement; that it's cut and dried.
Yeah -- I can't imagine why we allow Disney to have copyrights on films like Aladdin, or Cinderella, when they're just rehashing stories that have been around for fucking ages.
Or perhaps we allow it because someone's reinterpretation of an existing story -- the way they tell it, the changes they do make that serve as a counterpoint to what we're already familiar with -- these things are important, and are new.
Are you aware of the concept of people 'standing on the shoulders of giants?' Or of the possibility that there is a finite amount of creativity? (At least in a world where people vigorously try to expand their rights at the expense of people who come later)
Go read Spider Robinson's "Melancholy Elephants" or something.
Talented people OFTEN create derivative works. Good ones. Shakespeare couldn't come up with an original plot to save his life. But he still was amazingly talented. And how many thousands of talented artists have built on what he did? You didn't like "West Side Story" or "Rosencrantz and Guildenstern Are Dead" or "The Lion King?"
What's wrong with you, guy? I've seen no end of derivative works better than the original source material. In part BECAUSE they could put their own spin on the original material. Sometimes they're even by the same person!
There are movies that were better than the book. And there are sequels better than the original. (e.g. Empire was much better than Star Wars, and is in fact derivative of it!)
I'm amazed you can't figure this out. It's not always true, granted, but there's no end of crappy original works either.
Originality isn't necessarily what makes something good. It might, it might not. There's other factors at play too.
You're basically right, but be aware of some exceptions.
There are statutes of limitations: if you don't sue within a certain period of time, you lose your chance to do so. The courts are not generally going to tolerate people bringing lawsuits decades after the fact. Things like murder don't have statutes of limitations -- copyright infringement is only a few years (possibly with the clock starting after the copyright holder did, or should have discovered it).
There is estoppel: if you lead someone to believe that it's okay to use your works, you cannot turn around and sue them given their reliance on what you did.
But overall, copyrights and patents don't expire early due to lack of enforcement. They may merely not be effective against SPECIFIC people for lack of enforcement. And even that probably doesn't happen all that much when there's significant money at stake.
Skins are a form of art, to the degree that they're graphics (see 17 USC 102(a)(5)) and are literary works, to the degree that they're software or computer data that's copyrightable (see 17 USC 102(a)(1) and the legislative history. And anyway, 17 USC 102 is pretty open-ended in offering protection to any "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."
As for your inane reference to 17 USC 109, you clearly didn't read it or understand it.
The way that the law here is organized is, there is a title that embodies the entire subject of the law. Here, it's title 17 of the US Code, which is all of the copyright law. It's divided up into chapters (which no one really bothers with much), and those are divided into sections. Thus, here we discuss Title 17, Chapter 1, Section 109. (Again, no one hardly ever cares about chapters -- Bankruptcy is the most notable exception I can think of. When people talk about chapter 11 bankruptcy, etc. they mean the type of bankruptcy set out in chapter 11 of the bankruptcy title of the USC, which is Title 11, IIRC)
Anyway, the section you quoted from was 17 USC 109. It says, basically, that it is not an infringement of the exclusive right of the copyright holder to distribute the work (which was set out in 17 USC 106(3)) for other people to REdistribute a copy of a work that has already been sold off in the first instance by the copyright holder. Redistribution includes selling, renting, leasing, lending, etc.
That is, if you buy a book, you can legally sell that book used. Doesn't mean you can copy it, or sell copies you yourself made. Just that you can sell the copy you bought, that the artist somewhere upstream, sold.
There is an exception to that, in 17 USC 109(b) that computer software and sound recordings cannot be rented, leased, or lent, for commercial purposes, basically.
There is an exception to that exception however, in 17 USC 109(b)(1)(B) in that the above subsection 109(b) doesn't apply to computer software embodied in hardware, or programs for videogame consoles.
Notice the word SUBSECTION. The exception in 17 USC 109(b)(1)(B), which YOU QUOTED, only, ONLY, applies to 17 USC 109(b). It does NOT apply to even a single word anywhere else in any part of Title 17.
Plus it's amazingly irrelevant to this case, as the exclusive right of the copyright holder being asserted is NOT the right to distribute, but the right to create derivative works!
Regarding the issue on the Lanham Act, I'd just ask you this question: what do you think constitutes commercial use? Could it possibly be construed by the courts to include uses that have some commercial advantage (such as drawing users who will see advertising for which they get a kickback) even if it isn't blatantly commercial, with money trading hands?
New cartoons using their characters are already protected by trademark law, and will be so long as Disney continues to enforce the mark.
That's patently absurd.
To claim that would be to claim that trademarks are capable of establishing a de facto copyright that might never expire with regards to derivative works based upon earlier, public domain works.
It would be grossly unconstitutional.
When copyrights expire so does the exclusive right of the author to create works derivative of earlier works. If "Steamboat Willy" ever does hit the public domain, I CAN make my own Mickey Mouse cartoons. Or books. Or art. And print it on t-shirts.
Most likely the trademark would be partially genercized, that is, partially lost, once the copyright expired. Disney could still attach their name to distinguish their OWN cartoons. I couldn't claim that my own Mickey Mouse works were their works, just as if I made a Cinderella cartoon I couldn't stick the Disney name on it, though both our films would share the 'Cinderella' title, story, characters, etc.
But trademarks on characters are comparatively new as these things go. The best case regarding this that I've seen so far has been, IIRC, New Line Cinemas v. Comedy III Productions, where copyright expiration trumped persisting trademarks.
But I'd be happy to continue discussing the issue with you. Personally, I hope to have the opportunity to test this out in the future with other fictional characters that are trademarked, yet who's original appearances are in the public domain.
The purpose of a trademark is that it distinguishes a specific source of some goods.
Thus, if I see a can of soda with the word 'Coca-Cola' printed on it, then that allows me to know that it _is_ Coca-Cola, and that it comes from, and was made by, the Coca-Cola people. It needn't indicate who the manufacturer is, just that it's coming from the same overall source as other things so marked.
If everyone was making Coca-Cola, and using that name, it would not be possible to know that it all came from the same place; in fact it wouldn't be. Thus, the trademark would've become generic, and anyone can use it.
Xerox has been on the verge of this for years. People commonly use the word to refer to any brand of photocopier, as well as the output and the process. They advertise heavily to have something to point to as a counter to that.
Other trademarks have been lost through generic use. E.g. escalator.
Basically the test is done by gathering evidence in the form of carefully conducted surveys. If a lot of people are confused regarding source, it's been genericized. If some are, but it's not as widespread, then that indicates infringement that can be stopped, since it isn't too late. Use of a trademark in a non-infringing way (as I've been doing here) doesn't confuse people at all, and so is perfectly allowable.
I doubt that here people think that anyone can do anything with the Spider-Man trademark; it doesn't seem to have gotten to the extreme of genericide yet.
It demonstrates how fu**ed the copyright system is which requires you to send cease-and-desist letters to protect your rights.
Hm? Well, you don't HAVE to send a C & D letter with regards to copyrights. But of course, if you don't ever take action to protect your rights, why should anyone care? In fact, if you don't protect some rights you can eventually lose them -- think of how squatters can take land from people by using it for a period of years when it otherwise would've been ignored.
Anyway, I think you might want to further study this subject; I don't think you're quite getting it yet, although I do endorse support of noncommercial fans. It's dumb to alienate one's audience, after all.
And so it does. If you say something, why shouldn't I be able to say it too?
Hardly anyone argues that the making of a creative work is speech protected by the First Amendment. Movies, books, photos, etc. are, when challenged, pretty much always protected.
Why should the EXACT SAME SPEECH be any different, merely because a different person did it the next time around? The First Amendment applies equally to both, after all.
HOWEVER, speech rights can be limited -- to a degree -- by copyright, as it's a Constitutional power that Congress can exercise if it chooses.
I never said that the First Amendment caused copyright law to be unconstitutional though. That's entirely different from the First Amendment guaranteeing the right to copy creative works. You need to read my earlier post MUCH more closely.
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I should think that they should have that right. If the work is important to you in its original glory, this is a good reason to have more than one copy.
We are dealing with information here -- it's not especially important if you're looking at the original or an equally good replica.
You're basically talking about a historical attachment. A sentimental one. And I endorse preserving historical artifacts, which is why if you're concerned about this, it would be a lot smarter to have it bought by a well-funded museum that promised never to fuck around with the original.
It _IS_ censorship. But it is totally voluntary self-censorship.
Your freedom of speech does not mean that I have to listen to you. It also doesn't mean that I have to listen to everything you have to say: maybe I'll tune in for part, and then leave after a while, regardless of whether you like that or not.
The freedom to edit a movie for one's own consumption, or even to suggest edits to other people, is exactly the same as the freedom that I have to close my eyes during a scary movie, or to cover the eyes of my children during a sex scene.
I absolutely HATE, I fucking LOATHE, censorship forced on me by other people.
But I have no problems whatsoever with exercising my OWN taste and discretion with regards to myself. If I don't want to watch a crappy movie, I won't. If I don't want to watch a certain crappy scene in an otherwise good movie, I won't.
You can kindly go to hell. Because you're a censor. You're telling me what I can watch. And you're telling me what I cannot watch, viz. bowdlerized versions of things.
I can't figure out why. I'm not telling you what you should or should not do. What gives you the right to control what I see, jackass?
You're upset that I might not understand what the artist is trying to say. Well I might not WANT to understand what the artist is trying to say. I might not CARE. Are you daring to become the thought police, telling me that I HAVE to care, that I HAVE to understand. In my book, that makes you a facist.
OTOH, I wouldn't watch a CleanFlicks version of a movie. Except for the novelty value. Or if it appeared that the edits actually made the movie better than before. I have no desire to practice that sort of self-censorship.
But I should still have the right to do so if I so please!
What if I watch a French movie, but I don't know French? Isn't there a significant chance that I won't understand it? Is that anyone's problem but my own?
Furthermore, is it necessarily a problem? Maybe my misunderstanding will be enlightening to me, or inspire me to go create my own movies, or otherwise have beneficial results. (Don't laugh: IIRC Adam Warren had a similar experience)
Hell, how far do you want to take this? What if I watch a movie, but I'm too stupid to understand the deeper meaning of the creators that they were trying to convey? Is that actually such a bad thing that we need to rate movies by what the audience's IQ and cultural literacy has to be in order to go see them?
Sounds like a nightmare world to me.
How about we just let people cope with works of art as best as they can, and however they like. If it works, great; but there's no guarantee that there will be perfect communication. Why should there be? It's just a movie.
You don't have to create that scale. CAP Alert, or whatever they're called did that already. It's great fun to read through their reviews.
First sale rights end when you profit.
Huh? First Sale means that after the first sale, there are no restrictions (basically) on all subsequent sales. Profit or no.
Otherwise you'd destroy the entire used media industry -- used books, CDs, videos, software, etc., not to mention rental, private libraries, or much lending in light of the NET Act.
As for changing the story, can't I already do this by skipping past certain scenes with a mere fast forward button? Or just leaving the room?
And who the fuck are you -- even if you're the author -- to tell me that I HAVE to experience something in a certain way. How authoritarian is that shit? I'll enjoy or not enjoy a movie as I see fit, thanks. If I want to read the last chapter of a mystery first I will. You can go to hell. I don't care if it ruins it. If it does, that's my problem, not yours.
Hardly. Such a player probably wouldn't be okayed by the DVDCCA. This means it would have to violate 17 USC 1201. Plus, given the absurd MAI v. Peak decision, it's probably illegal as to 17 USC 106 re: copying.
But it OUGHT to be okay. No question there.
If someone creates a piece of software its a service.
:: Product :: Milk :: Cars :: Painted houses :: Software
Uh, not especially. If someone creates a piece of software, that ACT of creation is a service. The resulting piece of software is not a service, it is a product.
Service
Dairy farming
Auto manufacturing
Painting houses
Software development
It's certainly not stealing. After all, there are a lot of illegal and even immoral things other than stealing. I'm sure you can at least avoid calling something by the wrong name. Unless you're deliberately trying to confuse the subject. And you can't steal labor anyway -- getting someone to labor for free is typically accomplished through fraud or breach of contract.
Napster/Kaaza/Morpheous situations and Skin creators are two completely different issues here.
Not particularly. There's a difference in that the skin creators are direct infringers, and the P2P services may be (or may not be, if they were careful about how they did things) contributory or vicarious infringers. But their problems were founded on their users being direct infringers. And the skin site is, if not a direct infringer, at least a contributory or vicarious infringer, I'm pretty sure.
They may have escaped this by complying with the DMCA safe harbor, but despite the ease of almost totally covering one's ass in this manner, it doesn't seem to be all that common among non-corporate sites. Pity. It's the one halfway tolerable part of the DMCA. (kind of like how there's a good part of the CDA, which was otherwise an awful law, and we're glad to be rid of it)
As I stated previously, the Napster example is making a copy of a master piece of work.
Actually there were two types of underlying direct infringements in the Napster case. Making infringing copies was the offense of the downloaders. Distributing copies in an infringing manner was the offense of the people that allowed people to download from them.
Making skins are not.
You're right. Making a skin is not the same as making a copy. But there are other ways to infringe a copyright than to make a copy. See 17 USC 106, and note well that only ONE part of that involves making a copy; distribution, derivatives, and public performances and displays are equal offenses!
The two Copyright acts focus specifically on examples such as Napster and when people make copies of a piece of work and distribute it.
I'm not quite sure what "two Copyright acts" you refer to. The 1976 Act is the most recent, and it replaced the 1909 Act. The post-1976 amendments have not been omnibus revisions of the law that would really care about such broad topics. Please clear up this minor confusion by being more specific, ok?
Anyway, yes, making a copy can be an infringement. Distributing that illegal copy can be an infringement.
But there are other infringements. Such as making a new work from scratch if it is sufficiently closely based upon an existing work, despite there not being any direct copying.
Example: creating a movie based on a book. The movie is derivative of the book. But the words in the book might not appear on screen. The characters and situations might be somewhat different. As long as one is based on the other, to a greater extent than merely borrowing general ideas and concepts, it's derivative. And it's illegal under 17 USC 106, barring some exception or authorization. Look it up!
when people make copies of a piece of work and distribute it. Marvel doesn't make skins, they're created from freehand art so how can this site be considered copyright infringers. The Acts do not cover this at all.
Well, they do cover this, as noted, in 17 USC 106, regarding derivative works. Hell man, you do understand what the word 'derivative' means, right?
There's no evidence or SOLID proof of infringement
I've got to disagree. There are skins. The visual appearance of the skins resemble the visual appearance of superheros from the comic books. The one picture sure looks like it is based upon the other, even if it was created from scratch. Is there some question as to whether the skin creators, with no knowledge of the Marvel characters just happened to create Spider-Man, or the Hulk? That would be okay. But I'm going to go out on a limb here and bet that they deliberately set out to copy the design of the costumes as portrayed in works of visual art in the comics, and recreate them in works of visual art in the computer. It's a derivative work. It's an infringing work.
I am a big proponent of IP reform, I hate what's being done with the law and to people by the RIAA, MPAA, etc. But if I were on the jury, I'd vote i
And I'm behind you. I enjoy a number of different instances of fan art or fan fiction. Sure a great deal of it is crap, but a great deal of everything else is too. The good stuff shines through in the end. And of course, there's plenty of fan-art-esque versions of classical mythology, or Shakespeare, or whatever. Some of that is good too.
I don't think that original works should be elevated above derivative works.
Well, the Cinderella FAIRY TALE is in the public domain. I can make my own version of Cinderella. So can Disney. And they did.
Those versions we each make are then copyrighted, but only with respects to the portions of the story that are original to those versions. For example, the artwork, and the script and music in Disney's version is protected. The plot is generally not, nor the characters, situations, etc.
I was using it as an example to show that Disney likes to make movies based on public domain works, that they then trademark what they can with regards to those works, but it doesn't stop other people from directly competing with them, and even using very similar trademarks.
Well, I am a true artist. Or at least, I managed to support myself as an artist for several years before I decided to change professions into something vaguely art-related. (guess what my new job will be -- you may be surprised) So I'd like to think I have some sort of idea of what I'm talking about.
The issue isn't so much creativity as it is the audience, actually. If I wrote a novel in gibberish, it's going to be virtually devoid of impact. It has to be sufficiently closely related to existing art -- both in form and tropes -- in order to be understood.
For example, a lot of westerners now probably don't have the level of knowledge needed to understand the messages being conveyed by biblical art of several hundred to a thousand years ago. Not fully anyway; certainly I bet it would be difficult for people to tell one saint or apostle from another just by looking at them. But it was clear at the time. When you study the art of a different culture, the problem can be even greater, because there's a lack of common ground needed for communication.
Art as a sort of solo endeavor is nice, but I think it's not entirely unreasonable to expect art deserving of copyrights (i.e. art that is desirable to the public) to have something in common with the public.
Besides which, there is a seperate issue. If you're a wealthy, powerful, established artist, you will be prone to wanting to prevent people from horning in on your act. Therefore if someone creates something original but that threatens you and is not entirely dissimilar, you might claim infrigement to not just protect your own works, but expand the breadth of your control.
Anyway, I do suggest reading "Melancholy Elephants." It's by Spider Robinson, it addresses this issue very nicely, and it's online somewhere or other.
You're misinterpreting my statement, though I'll consent that in one area my statement overreached. It would be legal to display "Steamboat Willie" in any context, and to use the artwork in another form. It would not, however, be legal to create a new work with the character Mickey Mouse from the cartoon, since Mickey Mouse is a trademark continuously in use and thus protected.
;)
No, that's exactly how I interpreted your statement. I just think you're absolutely wrong.
Such a trademark would in effect create a copyright. This is blatantly unconstitutional. The commerce power (from which trademarks originate) CANNOT be used to create copyrights. Copyrights MUST be of limited duration. Much like how the Copyright clause cannot be used to create trademarks. (which was tried in the 19th century and held unconstitutional)
No, you could create a derivative work of other characters on a steamboat like that one, since the steamboat isn't a trademark. But if you include Mickey in the work, you'd be in court in no time. You could make videos and sell the cartoon, you could print images from the cartoon on t-shirts or in books or put them in big frames and sell that. You could absolutely not create an entirely new work, claim you're deriving it from "Steamboat Willie", and use Mickey, a currently enforced trademark.
Then in that case you're telling me that I cannot make any POSSIBLE derivative work of Steamboat Willy.
This means, in effect, that Disney by virtue of a mere trademark, is retaining a de facto copyright, that is, a power just like a copyright, with respects to SOME of the possible derivatives that could be based upon Steamboat Willy.
A derivative work can be amazingly derivative, so much so that it isn't a copyright infringement (such as recycling a basic plot, like two lovers from feuding families), or it can be just barely this side of an exact copy (the colorized version of Casablanca).
As long as the new work is based upon the original work, and is not an exact copy (or perhaps also not an adaptation, such as vidcapping the film version of Casablanca into a computer-readable format), it is derivative.
As for the Comedy III case, you left out the best part: If material covered by copyright law has passed into the public domain, it cannot then be protected by the Lanham Act without rendering the Copyright Act a nullity. See, e.g., Smith v. Chanel, Inc., 402 F.2d 562, 565 (9th Cir. 1968).
Just so you know, courts HATE having laws turn out to have no effect. Worse still, the Copyright Act contains an expiration date because the Constitution requires it to. If that date didn't mean anything for ALL of the rights granted in a copyright, including the right to make any and ALL derivative works, it would mean that the Lanham Act was contradicting the Constitution. You can't really get a bigger no-no than that.
The real problem is that this has not been squarely addressed by the courts due to the extreme (extremely stupid, I should say) length of copyright terms, and the relatively recent practice of trademarking characters. The Amos 'n Andy case got close, but managed to dodge the issue as well. I've been looking, but have not managed to find anything better than Comedy III. Let me know if you see something that's on point.
Anyway, while I doubt I'll ever see Steamboat Willy hit the p.d., there are other trademarked fictional characters in the p.d. out there. My plan is actually to create a comic book (since trademarks are for specific channels of commerce), then file for a declaratory judgment, instead of waiting around to get sued. By filing prior to sale, but where entry into commerce is imminent, I avoid the possibility of having to pay damages if I lose, God forbid. After all, the work is p.d. so mere creation is irrelevant as grounds for damages.
Should be interesting, but it'll have to wait for a few years so I can take care of prior commitments and gather the necessary resources.
Assuming all goes well, I'll send you a copy.
they actually represent Spiderman
Yeah, but the purpose of trademarks is not to identify a product so much as it is to indicate that different instances of the same product share a common source.
If Marvel makes Spider-Man comics, and I make Spider-Man comics, then the Spider-Man trademark no longer indicates that all Spider-Man products originate from a particular source.
Even though it's perfectly clear in both instances that it IS Spider-Man.
You've pointed out the nominative use of a mark, that is using a mark to refer to the product, as being okay. But that doesn't excuse using a mark to refer to a product from a different source.
Even when you take Coca-Cola, mix it with vodka (sounds disgusting) and resell that, you're probably not claiming to have manufactured that Coca-Cola, nor is there confusion regarding the source of it.
Here, someone else is claiming to be a source of Spider-Man stuff, and this can lead to confusion regarding source, which is the basis for an infringement action.
With only a few limited exceptions, you should be aware that people CANNOT get the right to use Spider-Man in their own products without permission. Parodies are about the only significant way that it's possible. Nominative uses are really just using a mark to refer to products of the mark holder, by and large. I.e. our conversation would be stupid if we had to dance around the subject by talking about a 'male, spider-oriented costumed superhero' (which could in fact refer to several superheros). But that's not an excuse to make your own Spider-Man stuff.
You have to read the Act documentation as a whole.
No, not really. But I do. I love the general concept of copyright law, and I read through it for fun. With luck I should be practicing IP law in the not too distant future, next Sunday A.D..
Most of this Act focuses on laws, penalties, and processes for duplicating an exact copy of an original work.
No.
The law treats all of the 17 USC 106 rights more or less equally. There are exceptions to everything, but overall it is just as bad to illegally make a movie based on a book as it would be to xerox that book to begin with.
Certainly there's a lot of effort put into things like statutory licensing of music with regards to derivative works and public performances.
This Copyright Act seems to be the result of reactive procedures the 'interests' take to keep the money rolling in to them and only them.
Yeah, a lot of laws are like that. Squeeky wheels get the grease and so forth.
Should D.C. Comics get a cut or a royalty off a kid who puts on a Red Cape with an 'S' on the back and flys around the yard pretending he's Superman?
Should they? No. Do they now? No. Is that germane to this issue? No, not really.
To me whole issue with Marvel and the Skin site is just a modernized version of running around the yard with a Red Cape as a kid as Players like to fantasize about playing Superheros.
Which is great, but the copyright aspect of this case is pretty unconcerned with fantasy. It's concerned with people making and distributing those capes, as it were.
This site provided a resource for On-Line Gamers to put the proverbial cape on for free. How, in the weak wording of both the Acts/Laws, is the Skin site Violating Copyright or Trademark infringement laws?
There are several different sources of law. Statutes, as you've figured out, are passed by Congress. Caselaw, and common law, OTOH, are created by the courts -- either as the definitive interpretations of ambigious statutes, or as filler where there has been no legislative activity.
Thus, although it's not really mentioned much (though it is recognized) in the stautes, there are doctrines of contributory and vicarious copyright infringement, whereby one person's direct infringement will cause other people to also become liable.
Napster, for example, did nothing more than provide a resource for music fans to distribute and copy music for free. But those music fans were distributing and copying illegally. And Napster helped in such a way that they were responsible too. (if they'd acted differently, they might have gotten away with it; but they didn't try to work within the law and still do what they were trying to do)
These guys are little different. They're, if not direct infringers, are helping other people to directly infringe.
That's not really a bad thing, you know. Smoke is about the stupidest delivery system for a drug ever. Skin patches might not be as romantic, and might require more infrastructure, but they're probably a lot healthier than getting crap stuck to the insides of your lungs!
Pft. The fucking Berne convention came from Europe. Moral rights came from Europe.
The US was doing _great_ until the 1976 Copyright Act. Hell, we have the foundation to be great again. It'll actually take a lot more work for Europe to fix their IP.
Oh? Well, let's see. In the actual LAW, 17 USC 102, the only thing really discussed is this:
Didn't seem to say anything about 'fine art' there did it?
Congress made the following comment discussing this law in the legislative history:
So now it sounds as though you can be Rembrandt, or you can be a three year old child playing with fingerpaints. As long as you didn't copy your work, and it's sufficiently creative, which is an amazingly low standard that's meant only to exclude preexisting facts, it's copyrightable.
Certainly I cannot imagine why a picture of Lethargic Lad would not be copyrightable as opposed to a Rembrandt. Certainly it would seem to leave Roy Lichtenstein in a perilous situation.
If that picture is copied directly, or if a new picture is based on the original (as surely happened here), then it is infringing. It doesn't matter if the particular form of the derivative is a comic book, a novel, a movie, or a skin for a video game. It is clearly based upon a copyrighted work. It is derivative of that work. It's infringing.
If you think skins are a grey area, it's because you can't see clearly. In fact, it's absolutely clear.
Commercial use is that which is regulated by Congress/Law. Skin trading is anything but that it's just plain and simple Hobby. Last time I checked, Hobbies aren't regulated.
Ok. You say you checked. That is, you say you actually LOOKED AT THE LAW. Then you will have no problem whatsoever in showing me where noncommercial copyright infringement -- perhaps in the form of a hobby -- is made allowable?
Fair use MIGHT cut it -- but it just as easily might not. And if you claim Fair Use, you'll have to actually run through the entire analysis just like a court would, since a mere allegation of fairness is worthless. But you've just indicated that you can back up your statements. Now I'm calling on you to do it.
But I'll bet you $20 that this is infringement; that it's cut and dried.
Yeah -- I can't imagine why we allow Disney to have copyrights on films like Aladdin, or Cinderella, when they're just rehashing stories that have been around for fucking ages.
Or perhaps we allow it because someone's reinterpretation of an existing story -- the way they tell it, the changes they do make that serve as a counterpoint to what we're already familiar with -- these things are important, and are new.
Are you aware of the concept of people 'standing on the shoulders of giants?' Or of the possibility that there is a finite amount of creativity? (At least in a world where people vigorously try to expand their rights at the expense of people who come later)
Go read Spider Robinson's "Melancholy Elephants" or something.
Talented people OFTEN create derivative works. Good ones. Shakespeare couldn't come up with an original plot to save his life. But he still was amazingly talented. And how many thousands of talented artists have built on what he did? You didn't like "West Side Story" or "Rosencrantz and Guildenstern Are Dead" or "The Lion King?"
What's wrong with you, guy? I've seen no end of derivative works better than the original source material. In part BECAUSE they could put their own spin on the original material. Sometimes they're even by the same person!
There are movies that were better than the book. And there are sequels better than the original. (e.g. Empire was much better than Star Wars, and is in fact derivative of it!)
I'm amazed you can't figure this out. It's not always true, granted, but there's no end of crappy original works either.
Originality isn't necessarily what makes something good. It might, it might not. There's other factors at play too.
You're basically right, but be aware of some exceptions.
There are statutes of limitations: if you don't sue within a certain period of time, you lose your chance to do so. The courts are not generally going to tolerate people bringing lawsuits decades after the fact. Things like murder don't have statutes of limitations -- copyright infringement is only a few years (possibly with the clock starting after the copyright holder did, or should have discovered it).
There is estoppel: if you lead someone to believe that it's okay to use your works, you cannot turn around and sue them given their reliance on what you did.
But overall, copyrights and patents don't expire early due to lack of enforcement. They may merely not be effective against SPECIFIC people for lack of enforcement. And even that probably doesn't happen all that much when there's significant money at stake.
Skins are a form of art, to the degree that they're graphics (see 17 USC 102(a)(5)) and are literary works, to the degree that they're software or computer data that's copyrightable (see 17 USC 102(a)(1) and the legislative history. And anyway, 17 USC 102 is pretty open-ended in offering protection to any "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."
As for your inane reference to 17 USC 109, you clearly didn't read it or understand it.
The way that the law here is organized is, there is a title that embodies the entire subject of the law. Here, it's title 17 of the US Code, which is all of the copyright law. It's divided up into chapters (which no one really bothers with much), and those are divided into sections. Thus, here we discuss Title 17, Chapter 1, Section 109. (Again, no one hardly ever cares about chapters -- Bankruptcy is the most notable exception I can think of. When people talk about chapter 11 bankruptcy, etc. they mean the type of bankruptcy set out in chapter 11 of the bankruptcy title of the USC, which is Title 11, IIRC)
Anyway, the section you quoted from was 17 USC 109. It says, basically, that it is not an infringement of the exclusive right of the copyright holder to distribute the work (which was set out in 17 USC 106(3)) for other people to REdistribute a copy of a work that has already been sold off in the first instance by the copyright holder. Redistribution includes selling, renting, leasing, lending, etc.
That is, if you buy a book, you can legally sell that book used. Doesn't mean you can copy it, or sell copies you yourself made. Just that you can sell the copy you bought, that the artist somewhere upstream, sold.
There is an exception to that, in 17 USC 109(b) that computer software and sound recordings cannot be rented, leased, or lent, for commercial purposes, basically.
There is an exception to that exception however, in 17 USC 109(b)(1)(B) in that the above subsection 109(b) doesn't apply to computer software embodied in hardware, or programs for videogame consoles.
Notice the word SUBSECTION. The exception in 17 USC 109(b)(1)(B), which YOU QUOTED, only, ONLY, applies to 17 USC 109(b). It does NOT apply to even a single word anywhere else in any part of Title 17.
Plus it's amazingly irrelevant to this case, as the exclusive right of the copyright holder being asserted is NOT the right to distribute, but the right to create derivative works!
Regarding the issue on the Lanham Act, I'd just ask you this question: what do you think constitutes commercial use? Could it possibly be construed by the courts to include uses that have some commercial advantage (such as drawing users who will see advertising for which they get a kickback) even if it isn't blatantly commercial, with money trading hands?
New cartoons using their characters are already protected by trademark law, and will be so long as Disney continues to enforce the mark.
That's patently absurd.
To claim that would be to claim that trademarks are capable of establishing a de facto copyright that might never expire with regards to derivative works based upon earlier, public domain works.
It would be grossly unconstitutional.
When copyrights expire so does the exclusive right of the author to create works derivative of earlier works. If "Steamboat Willy" ever does hit the public domain, I CAN make my own Mickey Mouse cartoons. Or books. Or art. And print it on t-shirts.
Most likely the trademark would be partially genercized, that is, partially lost, once the copyright expired. Disney could still attach their name to distinguish their OWN cartoons. I couldn't claim that my own Mickey Mouse works were their works, just as if I made a Cinderella cartoon I couldn't stick the Disney name on it, though both our films would share the 'Cinderella' title, story, characters, etc.
But trademarks on characters are comparatively new as these things go. The best case regarding this that I've seen so far has been, IIRC, New Line Cinemas v. Comedy III Productions, where copyright expiration trumped persisting trademarks.
But I'd be happy to continue discussing the issue with you. Personally, I hope to have the opportunity to test this out in the future with other fictional characters that are trademarked, yet who's original appearances are in the public domain.
The purpose of a trademark is that it distinguishes a specific source of some goods.
Thus, if I see a can of soda with the word 'Coca-Cola' printed on it, then that allows me to know that it _is_ Coca-Cola, and that it comes from, and was made by, the Coca-Cola people. It needn't indicate who the manufacturer is, just that it's coming from the same overall source as other things so marked.
If everyone was making Coca-Cola, and using that name, it would not be possible to know that it all came from the same place; in fact it wouldn't be. Thus, the trademark would've become generic, and anyone can use it.
Xerox has been on the verge of this for years. People commonly use the word to refer to any brand of photocopier, as well as the output and the process. They advertise heavily to have something to point to as a counter to that.
Other trademarks have been lost through generic use. E.g. escalator.
Basically the test is done by gathering evidence in the form of carefully conducted surveys. If a lot of people are confused regarding source, it's been genericized. If some are, but it's not as widespread, then that indicates infringement that can be stopped, since it isn't too late. Use of a trademark in a non-infringing way (as I've been doing here) doesn't confuse people at all, and so is perfectly allowable.
I doubt that here people think that anyone can do anything with the Spider-Man trademark; it doesn't seem to have gotten to the extreme of genericide yet.
It demonstrates how fu**ed the copyright system is which requires you to send cease-and-desist letters to protect your rights.
Hm? Well, you don't HAVE to send a C & D letter with regards to copyrights. But of course, if you don't ever take action to protect your rights, why should anyone care? In fact, if you don't protect some rights you can eventually lose them -- think of how squatters can take land from people by using it for a period of years when it otherwise would've been ignored.
Anyway, I think you might want to further study this subject; I don't think you're quite getting it yet, although I do endorse support of noncommercial fans. It's dumb to alienate one's audience, after all.
That would be interesting, but that's not how it's been interpreted by the courts.
And so it does. If you say something, why shouldn't I be able to say it too?
Hardly anyone argues that the making of a creative work is speech protected by the First Amendment. Movies, books, photos, etc. are, when challenged, pretty much always protected.
Why should the EXACT SAME SPEECH be any different, merely because a different person did it the next time around? The First Amendment applies equally to both, after all.
HOWEVER, speech rights can be limited -- to a degree -- by copyright, as it's a Constitutional power that Congress can exercise if it chooses.
I never said that the First Amendment caused copyright law to be unconstitutional though. That's entirely different from the First Amendment guaranteeing the right to copy creative works. You need to read my earlier post MUCH more closely.