The way Disney was able to defend the rights to Mickey Mouse is that Mickey has been continousley modified throughout its existance. Thus renewing the copyright each time.
No, whenever they change something, the new copyright only protects the things that were changed. Steamboat Willy hitting the public domain would let people use the mischievous, black and white, rubber hose Mickey of the 20's, but not later changes, like his voice, white gloves, color, losing his tail, acting pretty blandly, etc.
But if the copyright period on the derivative work runs out, it has perforce run out on the original copyright.
Well, a copyright on a derivative work only applies to the material in the derivative work that is original. The derivative parts are covered, if at all, by the copyrights on the works from which they derive. So losing the copyright in some manner on the derivative won't jeopardize the earlier work. This is part of the reason why Disney is so protective of Steamboat Willy; losing that would lose the copyright to Mickey Mouse as he was in 1928. The character has changed since then (e.g. becoming colorized), but it would still be a big loss for them if anyone could start using 1920's Mickey freely.
And as the present case notes, trademarks can't be used as a substitute for copyright; they'd lose significant amounts of trademark protection when the copyright was lost.
They need another retroactive copyright term extension in a few years or they'll have lost Mickey by the end of the decade. We'd better start to mobilize against them.
You can't "own copyright to" a concept. You can own a patent or trademark to a concept.
Well, none of those, really. You're right in that you can't copyright a concept; you can only copyright a creative work (although it is possible for an infringer to only use part of that work and still infringe). You can't patent a concept; you can only patent an invention. Inventions have to be a little more concrete than a mere concept or idea. You can't trademark a concept either; trademarks only apply to marks that identify goods or services in commerce as originating from the same source as other, so-marked goods. A trademark on a name or symbol has nothing to do with conceptual value, but instead the association made by customers of things bearing that mark. (E.g. things with the Apple logo come from Apple, Inc.)
As for character copyrights, like most mere elements of a story, they're usually not protectable. You can't copyright the plot element of a double-cross, nor can you copyright a character who amounts to little more than a double crosser. Characters are usually stock elements, or just faces to have around so that the plot moves along.
But sometimes, a character can be so creative and distinctive that to copy him would amount to copying a protectable part of the overall work which defines him. If you make your own Mickey Mouse cartoon, you're basically copying out a part of numerous previous works by Disney that define what he looks like, how he sounds, possibly some aspects of his behavior, etc. There's no copyright on the character per se, but the character part of those works in which those parts of him first appeared is protected, and you're infringing on that part of those works.
And, since copyright holders can generally divide up their copyrights as they see fit, it is possible that a copyright holder could assign to Alice the right to make unedited copies of works in which the character appears, but assign to Bob the right to make new works in which the character appears (i.e. works that copy from, and are derivative of, the works in which the character's attributes were defined in a protectable way). While this is still just a copyright on a portion of complete works, it amounts to a copyright on the character.
This is what the previous poster was talking about, I think: The plaintiff didn't have the copyright for the specific images used, and also didn't have a copyright that was carved out of various other works in order to basically just cover the character itself. They're separate things.
Copyright is there to benefit the public. That's the whole point. Whether or not an author benefits, and if so how much, is secondary, and merely a means to an end. The public doesn't care about authors -- it cares about the creative works that are the output of authors. If we could get works without needing the necessary evil of authors, that would be peachy.
The usage of Tolkien in that phrase has a meaning secondary to that of J.R.R. Tolkien, and thus is legally able to be trademarked.
Yes, but only in the context of a general sort of fictional elf, which isn't itself a good or service, I think. I don't believe that it's enough to show that there is some secondary meaning somewhere, to someone; it has to pertain to the goods or services at issue, surely.
No it wasn't. Copyright is intended to benefit the public.
Where in the hell did you come to that flatly wrong conclusion?
An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.
The full title of the Statute of Anne, the world's first modern copyright law
To promote the progress of science... by securing for limited times to authors... the exclusive right to their... writings....
The US Constitution
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
Thomas Jefferson (admittedly, talking about patents, but many have applied his argument to copyrights as well)
Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.
The Supreme Court in Sony v. Universal
The Supreme Court has recognized that "the monopoly created by copyright thus rewards the individual author in order to benefit the public."
The 11th Circuit Court of Appeals, quoting the Supreme Court, in SunTrust v. Houghton Mifflin
I could go on, if you like.
Plus it just makes sense: Copyright is a restriction on freedom of speech, and important and inherent right. Why would the public be willing to accept such a limitation, unless it provided a benefit to them greater than the cost?
If copyright were only about benefit to the public, there wouldn't be copyright at all. Period.
No. The public benefits when works are created, published, and in the public domain. Without copyright, we know from history that some, but perhaps not very many, works would be created and published, and instantly be in the public domain.
The idea behind copyright is that by tolerating some delayed gratification, we can encourage authors to create and publish works which they would not have done otherwise, and then after a time get them into the public domain. If it's done right, the benefit from the additional creation and publication will outweigh the detriment of not having them in the public domain immediately (though of course, they must ultimately enter). Ideally, the system will maximize the public benefit by encouraging the most amount of creation and publication for the least amount of copyright; it's basically a matter of finding the sweet spot before diminishing returns set in.
If you dissolve the benefit to its creators, by extension, you destroy the benefit to society; by lack of creation. You can't have one without the other.
No. History proves that there will still be some creation and publication even if there is no copyright. This becomes our baseline: copyright is only worthwhile if it causes a public benefit, measured in terms of works created, published, and in the public domain, greater than if there were no copyright at all. If we could not devise some sort of copyright that produced a greater public benefit than this baseline, we'd literally be better off not having copyright.
Whether we grant copyrights, and if so, how beneficial to authors they are, they have to be measured in terms of the net public benefit alone. Whether or not the authors like the deal they're offered is irrelevant, save for how it benefits the public. I've never minded if authors incidentally happen
As it stands now, a copyright cannot be lost through the failure to defend it; at most the copyright would only be rendered slightly less effective, and then only as to the person who was infringing.
I think that you're misunderstanding what a copyright is, how it works, and how it differs from other, unrelated things such as trademarks.
Briefly: A copyright is a right to prohibit other people from doing certain things with regard to a work; it is not a right to do those things oneself. (E.g. holding the copyright to a libelous book lets you stop other people from publishing it so that they cannot compete against you, but you effectively cannot publish it either.)
If someone infringes on the copyright, it means that they are doing those things which you have prohibited. Allowing them to do so basically just means that they get a pass. It doesn't invalidate the copyright as to the rest of the world. (Some have floated the idea of adverse possession as a solution to the orphan works problem, but we're not there yet)
Prohibiting the author from assigning his copyright to someone else has nothing to do with this at all.
In trademarks, a field completely unrelated to copyrights, a trademark can be lost under circumstances which involve allowing infringers to have their way with the mark. But the actual reason is that trademarks are only viable when, in the minds of the relevant customers, they serve to identify goods or services bearing the mark as originating from a particular common source.
For example, all computers labeled MACBOOK come from Apple, Inc. But computers labeled LAPTOP could come from anywhere. If a third party uses a mark in such a way as to confuse customers into not knowing whether the marked goods come from one source or the other, then the mark is no longer viable; that's why it is lost. It's the same thing if people start treating the mark in a generic sense, not caring whether it indicates a particular origin or not. ELEVATOR was a mark for a particular company's vertical conveyance device; because the public associated the mark with the device itself, as opposed to devices from that particular company, the mark was lost. (Marks like XEROX and KLEENEX have been hovering on the brink of this for years)
In extreme cases, and under the right circumstances, a mark could even be usurped, where instead of not knowing which source marked goods come from, the customers start to associate the mark with the infringer alone. But this is fairly rare.
Still, there's no obligation to defend a trademark except when needed to avoid consumer confusion, and then, it's not even so much an obligation as it is a desire to protect a mark; the trademark holder is allowed to give up. Not every little thing needs to be the subject of cease and desist letters or lawsuits in order for a trademark holder to protect himself.
and for some reason the USPTO thinks he's 'alive' (perhaps that word doesn't mean what I think it means).
It means the trademark is live, which means that it is the subject of a pending or current registration with the PTO. Dead marks have had their registrations or applications abandoned, expired, or canceled (which doesn't mean that the user of the mark lacks rights in it, just that it's not actively registered as a federal mark).
Copyright was intended to be a balance, an equal exchange.
No it wasn't. Copyright is intended to benefit the public. It's not supposed to be balanced or equal. It should produce the greatest possible net public benefit. If authors also happen to benefit, then I guess that's nice, but it's not important.
The original duration of copyright was 14 years. This was during the late 18th century.
14 years plus potentially another 14 year renewal term. And that was the early 18th century into the 19th.
Therefore, if anything, the original duration of 14 years should be reduced to maintain the same balance we once had.
Don't become enamored with a 14+14 term length just because it's historical. The number and length of terms should be determined by what best serves the public interest. Could be shorter, could be longer.
Instead copyright has been extended and in some cases it can be as long as the author's lifetime plus 120 years.
IIRC, in the US (your link was to a page about terms in the US) in most cases it's life+70, or 95 from first publication, or 120 from creation, depending on certain facts about the work.
Perhaps we need a "loser pays" system specifically for intellectual property laws.
In some circumstances, it is possible to get attorneys fees awarded. But generally I'd be wary of this; copyright, patent, and trademark laws are all heavily weighted in favor of the rightsholder. A strong loser-pays rule would probably only strengthen the rightsholders and cause there to be more lawsuits.
Well, you can't copyright a name, so this is probably a trademark case. The fair use doctrine of copyright would not apply. You may want to look at the (completely unrelated to copyright) fair use and nominative use doctrines of trademark law, however.
What kind of elves are they? Tolkien elves you say? Certainly fits the criteria of a secondary meaning.
I don't know. I think you may be confusing elves that originate from Tolkien, and elves that are in the same general vein as Tolkien's; Tolkienesque, if you like.
I don't think that the Tolkien estate can lay claim to high fantasy elves, even if Tolkien did create them, as distinguished from fairie-like elves, dwarf-like elves, Santa's elves, etc.
Well that would be nice (although perhaps it should depend on how long it's been since the resolution change; if it's been a long enough time, you might no longer prefer the previous setup), but I'm just reporting my experience with it; plugged into a 1080p tv, it's a roll of the dice every time I turn it on from hibernation as to where the desktop icons will be, and what size they'll be. There's some sort of screw up happening somewhere.
none of the icons on your desktop have a fixed position,
Tell me about it. I have an HTPC running Vista, and the damn thing is always shuffling around the locations (and sizes) of the icons on the desktop.
I'd love to be able to pin them into place and be able to rely on them not moving or changing. Or alternatively, to pin down the guy at MS responsible for this bad behavior -- with rail spikes.
Oh that's why it is so intuitive to put a floppy in the trash to eject it. Hmmmm?
I agree, it's weird, and in practice it tended to confuse people, but it helps to understand the history behind it.
Way back in the day, the Mac ran entirely from floppy disks. In fact, the original Mac couldn't use a hard disk at all (unless I've forgotten about some obscure third party disks, which is possible). For many years, it was not unusual to encounter Macs that had to be run from the floppy drive, popular as hard drives became. IIRC, hard drives were not standard equipment on all models until probably '91 or '92.
Worse, most Macs only had one floppy drive. You could get another one (usually external, though some Macs, like the SE or the II had a second bay that could be used for a floppy drive) but they were a bit pricey, and as long as you're spending money, you might as well get a hard disk instead.
This meant that you had an icon-based system that had to allow people to copy data between two different floppy disks, only one of which was physically present at a time. Masochists could even try putting the OS, applications, and documents on different disks, and swap between them as needed.
The solution that was devised was that if you selected a disk icon on the Mac, and used the 'Eject Disk' command (remember, the Mac didn't use eject buttons on the drives), it would eject the disk from the drive, but leave it mounted in the OS, with its icon still visible but greyed out. You could then insert a second disk, and then do something like copy a file from the second disk to the first, and the OS would prompt you to swap them as needed. (For people who remember the infamous Disk Swap Tango, see this page by Steve Capps, who explains a bug he caused that made this worse than it had to be)
Along with the 'Eject Disk' command, which ejected but did not dismount the disk, there was also the generally-forgotten and poorly named 'Put Away' command, which would, if a disk was ejected, get rid of the greyed out icon, and if a disk was not ejected, would eject it and get rid of the greyed out icon. It could also do some other things depending on context, though my memory is no longer clear as to whether those functions arose in System 7 or were around earlier, and I'm too lazy to look through my old manuals.
During usability testing, this was all found to be fairly annoying. So a shortcut was developed: If you dragged a disk icon to the trash, it invoked the Put Away command on it.
As it happened, everyone wound up doing this instead, and the Put Away command was almost entirely forgotten. Then, once hard disks were commonplace, and people rarely needed to swap removable media in this fashion, the Eject Disk command was changed to completely eject and dismount disks.
I believe that Tog (one of the Apple UI bigwigs) once discussed having the trash icon change to an eject icon when a disk was being dragged, but that they couldn't figure out a way to do it elegantly, and there was some concern over how people would respond to the change in the UI. Then, when OSX was brought out, which really drew from the NeXT UI more than the Mac UI anyway, this was implemented. Drag a disk to the Trash on a Mac now, and the Trash icon will change to an Eject symbol.
It probably didn't help that symbols for things like 'Eject' were not really universal yet. As near as I can tell, the symbol now in use is derived from top-loading VCRs and cassette tape players -- many of which would just use text instead anyway.
I didn't say that the GPL was complex. The GPL covers a situation more complex than: Here is one copy of a program, you may run it on one computer (making copies or adaptations as needed to accomplish that), and may make backups.
As v2 of the GPL says:
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted....
It is only in America in the developed world where the performers do not get royalties.
Yes, we are once again leading the way. Others could learn from our example.
The ideal copyright would be the absolute bare minimum possible that still causes an author (in this case a performer) to create and publish works that he otherwise would not have. That's just being efficient. Since we treat people equally, and can't grant rights on a case-by-case basis, we have to look for trends, and must watch out for diminishing returns, where the sweet spot of least rights / most output lies for a particular industry, etc.
The US has never suffered a drought of performers. Indeed, we've generally been incredibly prolific musically, and plenty of performers from abroad try to break into our market, come to tour, get airplay, sell records here, etc.
So clearly while the performers might prefer to get paid more -- and who can blame them -- they're willing to work regardless. If you go to get your car repaired, you don't decide to pay twice what you're billed just because the mechanic is a nice guy. That's foolish. And it would be just as foolish to pay performers more money when it's not absolutely necessary.
When performers go on strike, and refuse to record or perform music, then let's talk about how the US can treat them better. Until then it would simply be contrary to our own interests to do so.
It counts as a cover act (dj is required to crossfade and talk over music so it is not record quality).
No it doesn't.
Broadcasting music on the radio is a public performance. Copyright includes a right to prohibit public performances for musical works (i.e. songs and lyrics), but not for sound recordings (e.g. records and CDs) (except by digital means, a fairly recent change which has been kicking the shit out of Internet radio).
Therefore, you have to get a license from the copyright holder to broadcast CDs on the radio -- because of the underlying music, rather than the recording itself. This can be negotiated with every single songwriter, but it's far easier to get a license from the various performing rights organizations (e.g. ASCAP, BMI, SESAC) which have their own arrangements with the songwriters, and act as middlemen. Of course, nothing obligates them to grant permission. The same thing is true when you perform music live in public. The band (or more likely the venue) will have to have the proper licenses for that music to be performed by someone other than the copyright holder.
OTOH, a cover is when you make a sound recording of a performance of a song written by someone else, and then distribute copies of that new recording. There's a licensing procedure built into the law for this which avoids the need to get permission, though nothing stops you from negotiating separately if you like. There's a fee for doing it set up in the law, and various requirements that have to be complied with.
Whatever they do on the radio, it can't possibly fall under whatever sorts of protections are available for cover recordings.
Plus, I think you're just listening to crappy radio. I've heard plenty of songs in their entirety. If DJs are talking over the music, or crossfading the music, it's because that's what the radio station wants them to do.
Back in the old days, the rationale behind licensing software for ordinary use was that in order to run it, in order to copy it on to a different medium (e.g. installing something from tapes or floppies onto a hard disk), or in order to make backups, copies would have to be made, and making those copies could be unlawful if copyright law applied to computer software. Therefore, the user would need a license in order to do those things if copyright applied. If it didn't apply, better to have some sort of contract than none at all.
It wasn't until several years after the 1976 Copyright Act (which was a major revision of the law, replacing the 1909 Act, and is still what we use today) that the government finally worked out how it wanted to handle software copyrights. Section 117 of the Copyright Act was enacted, and it basically says that if you own a copy of a computer program, you have a right to make such copies and modifications as are necessary in order to make it run, and you have the right to make backup copies for your own use, provided that you don't keep the backups if you don't keep the original. (N.B. however that there are still serious problems with the intersection of computers and copyright, mainly involving the reproduction right, the inescapable fact that all computers copy things incessantly just in order to function, and the strict liability nature of civil copyright infringement)
Thus, the need for a license for ordinary users is obviated. Copies could be sold outright without preventing users from lawfully doing what they need to, and without jeopardizing the rights of the developers or publishers. Only more complex situations -- site licenses, distributing modified copies as per the GPL, etc. -- actually require licenses.
However, end user licenses are traditional, apparently, so the industry mostly still uses them despite not needing to. I've never been able to figure out why, nor have other lawyers I've asked who should be in a position to know, with the exception that it allows software companies to include pretty abusive power grabs against their customers without appearing to do anything out of the ordinary.
I'd sort of assumed that they were licensed the way that other media is licensed.
I guess that's true, in a way.
Virtually no media is licensed. When you buy a book from a bookstore, you simply buy it. There's no license. You can do anything you want with it, as long as you don't break the law. Making copies of copyrighted books is against the law (unless you fall within certain exceptions). Reading or lending copies of copyrighted books is not against the law, (provided that you lawfully have access to them -- you aren't allowed to break into a building in order to read a book, for example) therefore, you can do it.
In the US, anyone who owns a lawfully made copy of a book can lend that book out, rent it, sell it, use it to prop up uneven furniture, etc.
Ditto for CDs, DVDs, works of fine art, etc.
The only area where there's a significant trend of licensing instead of ordinary sales is for software, and while this may have developed for odd historical reasons, it's actually completely pointless now, due to changes in the law. Yet it is still the accepted practice, out of habit, I guess. Unfortunately, this tends to confuse people into thinking it is somehow normal, when in fact, it is abnormal.
However, since downloading necessarily involves the making of a new copy, and since making new copies of copyrighted works is not legal, unless you have permission (i.e.a license) from the copyright holder, licenses are relevant for downloading music, or movies, or games, or ebooks. Without changes to the law to handle new forms of what really should be distribution, power is shifting to copyright holders, and we can expect more of this sort of thing in the future.
(The 'wearing out' thing makes no matter; a well-cared for book can last for centuries)
They work when civilization collapses and they're found centuries later in a cave
Why would I care?
It's happened (more or less) before. Aside from just being nice to help future historians, religious scholars, readers of classical literature, etc., know about us for their own enlightenment, if civilization collapses, preserved books can keep knowledge alive. They helped out the Renaissance quite a bit, although had to be discarded as we progressed to the Enlightenment, since they hadn't gotten that far themselves.
You seem to be confusing e-books in general with DRM.
True, but even without DRM, there's nothing to indicate that electronic records are particularly robust or long-lived. It's a pain in the ass to read punch cards or paper tape, much less run software or understand the data encoded on them. And those media were in use within living memory. Human readable paper books are pretty durable and easy to copy, republish, and distribute (which are also important for long term survival of information).
I'd say that it would be a good idea to have computer printers that can output to stone tablets, but then HP's would probably bitch about being low on quartz or something.
Fair treatment of IP and adequate reward for authors is our means.
I disagree. First, the copyright system should only pursue the public benefit. Whether we have a copyright law or not, and if so, what it consists of, precisely, should be considered only through this lens. If a system benefits the public the most, it doesn't matter whether or not it is fair to authors. I suppose it would be nice if the copyright law that were best for the public also happened to be fair to authors, but the two things are wholly unrelated.
Likewise, while copyright is purely an economic incentive, copyright does not, and has never, provided an adequate reward for authors. Authors only get a monopoly on certain actions relating to their work. Whether or not they can exploit this monopoly in such a way as to get an adequate reward is their problem. Most works have no copyright-related economic value; their authors will get no adequate reward from copyright. The small number of works that do have a copyright-related value are usually not worth a great deal. The few works that are of substantial value are rare enough that it's akin to playing the lottery. The stereotype of the starving artist exists for a reason; art is not a good career choice if you want money. Fortunately, there are a number of other incentives at work which cause people to create art.
Registration is patently unfair to authors.
Funny. It worked so well in the US from 1790 to 1978, with renewal registrations required until 1992, and registrations still required if you want to enforce a copyright (or have worthwhile remedies).
Why? It introduces a workload and a cost to the creator than independents can't cover.
The workload is about on par with filing a change of address form. It's basically some brief information about the work, e.g. title, name of author, date of publication, what portion of the work is copyright claimed on, contact information, etc. Any adult faces far more challenging forms than this routinely. I suppose that you will next argue that artists should not have to file their tax returns -- a far more challenging task, I assure you -- because that also imposes an expense to them in terms of effort and cost.
I say grow up.
This means that SuperHeroMan 43 with its budget of millions of dollars will be registered worldwide in a flash but Independent Zombie Flick with it's $1000 shoestring budget will only be registered in one or two countries.
Probably because the former movie is expected to be released worldwide, while the latter movie will probably only be released in one or two countries. If they're going to release it abroad, they're going to have to clear some administrative hurdles anyway; they're going to need to draw up contracts with foreign distributors; they're going to need to deal with customs as they import copies into the foreign country; in many countries they're going to need to submit the film to the state censorship board; if they're making money abroad, they may need to file their taxes in the foreign country. Making sure that they have a foreign copyright is just another item for the checklist. It shouldn't be difficult or expensive, but it should require some affirmative action to get.
Otherwise, how are we supposed to distinguish an author who does want a copyright, from an author who doesn't want one, who doesn't care, and who isn't willing to even take affirmative steps to not get one? We can't give away copyrights willy-nilly, whether people want them or not. This is wasteful, and harmful to the public, who could be enjoying a public domain work, but for the automatically granted copyright. The people in the best position to know whether or not a copyright is wanted are the authors themselves. Let them apply for the copyright if they want one. Don't make it hard, but do require them to step up.
Because of copyright, each has to be new and unique rather than a recapitulation.
Not so. First, there is no requirement that books be copyrightable; a book that's just an unoriginal collection of factual information is still a book, copyright notwithstanding.
Second, copyright doesn't require uniqueness, only originality. That is, copyrighted material cannot be copied from some other source, but that doesn't mean that it cannot be identical to existing material. It's patents that have a novelty requirement.
Third, it's perfectly acceptable for books to be derivative works, so long as either the works they are based upon are either in the public domain or were used with permission. For example, 'Wicked' by Gregory Maguire is derivative of the book 'The Wizard of Oz,' which is in the public domain. Derivatives include sequels, adaptations (e.g. the book of the movie), translations, etc.
And for every Shakespeare, there are a million monkeys typing out Harry Potter fan fiction.
Meh. While most fan fiction is crap, most original books are crap too. This doesn't mean that there cannot be fan fiction that is as good as or even better than the source material. The Aeneid, a great work of classical literature is a piece of Roman fan fiction based on the Illiad. There's no rule that says that Rowling has to be the greatest Harry Potter author of all time.
If they were allowed to do more derivative work, do you think that they'd keep up with the production of original work.
They're allowed to do as much as they like, so long as they either use public domain materials or get permission from the copyright holder. Disney has made a specialty of doing derivative works with their animated movies,
Slashdot Mirror
The way Disney was able to defend the rights to Mickey Mouse is that Mickey has been continousley modified throughout its existance. Thus renewing the copyright each time.
No, whenever they change something, the new copyright only protects the things that were changed. Steamboat Willy hitting the public domain would let people use the mischievous, black and white, rubber hose Mickey of the 20's, but not later changes, like his voice, white gloves, color, losing his tail, acting pretty blandly, etc.
However, I wouldn't know because I wouldn't piss on Disney if they were on fire.
I am skeptical of your claims. I think we had better put it to the test. ;)
But if the copyright period on the derivative work runs out, it has perforce run out on the original copyright.
Well, a copyright on a derivative work only applies to the material in the derivative work that is original. The derivative parts are covered, if at all, by the copyrights on the works from which they derive. So losing the copyright in some manner on the derivative won't jeopardize the earlier work. This is part of the reason why Disney is so protective of Steamboat Willy; losing that would lose the copyright to Mickey Mouse as he was in 1928. The character has changed since then (e.g. becoming colorized), but it would still be a big loss for them if anyone could start using 1920's Mickey freely.
And as the present case notes, trademarks can't be used as a substitute for copyright; they'd lose significant amounts of trademark protection when the copyright was lost.
They need another retroactive copyright term extension in a few years or they'll have lost Mickey by the end of the decade. We'd better start to mobilize against them.
You can't "own copyright to" a concept. You can own a patent or trademark to a concept.
Well, none of those, really. You're right in that you can't copyright a concept; you can only copyright a creative work (although it is possible for an infringer to only use part of that work and still infringe). You can't patent a concept; you can only patent an invention. Inventions have to be a little more concrete than a mere concept or idea. You can't trademark a concept either; trademarks only apply to marks that identify goods or services in commerce as originating from the same source as other, so-marked goods. A trademark on a name or symbol has nothing to do with conceptual value, but instead the association made by customers of things bearing that mark. (E.g. things with the Apple logo come from Apple, Inc.)
As for character copyrights, like most mere elements of a story, they're usually not protectable. You can't copyright the plot element of a double-cross, nor can you copyright a character who amounts to little more than a double crosser. Characters are usually stock elements, or just faces to have around so that the plot moves along.
But sometimes, a character can be so creative and distinctive that to copy him would amount to copying a protectable part of the overall work which defines him. If you make your own Mickey Mouse cartoon, you're basically copying out a part of numerous previous works by Disney that define what he looks like, how he sounds, possibly some aspects of his behavior, etc. There's no copyright on the character per se, but the character part of those works in which those parts of him first appeared is protected, and you're infringing on that part of those works.
And, since copyright holders can generally divide up their copyrights as they see fit, it is possible that a copyright holder could assign to Alice the right to make unedited copies of works in which the character appears, but assign to Bob the right to make new works in which the character appears (i.e. works that copy from, and are derivative of, the works in which the character's attributes were defined in a protectable way). While this is still just a copyright on a portion of complete works, it amounts to a copyright on the character.
This is what the previous poster was talking about, I think: The plaintiff didn't have the copyright for the specific images used, and also didn't have a copyright that was carved out of various other works in order to basically just cover the character itself. They're separate things.
But I don't agree.
Copyright is there to benefit the public. That's the whole point. Whether or not an author benefits, and if so how much, is secondary, and merely a means to an end. The public doesn't care about authors -- it cares about the creative works that are the output of authors. If we could get works without needing the necessary evil of authors, that would be peachy.
The usage of Tolkien in that phrase has a meaning secondary to that of J.R.R. Tolkien, and thus is legally able to be trademarked.
Yes, but only in the context of a general sort of fictional elf, which isn't itself a good or service, I think. I don't believe that it's enough to show that there is some secondary meaning somewhere, to someone; it has to pertain to the goods or services at issue, surely.
No it wasn't. Copyright is intended to benefit the public.
Where in the hell did you come to that flatly wrong conclusion?
An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.
The full title of the Statute of Anne, the world's first modern copyright law
To promote the progress of science ... by securing for limited times to authors ... the exclusive right to their ... writings....
The US Constitution
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
Thomas Jefferson (admittedly, talking about patents, but many have applied his argument to copyrights as well)
Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.
The Supreme Court in Sony v. Universal
The Supreme Court has recognized that "the monopoly created by copyright thus rewards the individual author in order to benefit the public."
The 11th Circuit Court of Appeals, quoting the Supreme Court, in SunTrust v. Houghton Mifflin
I could go on, if you like.
Plus it just makes sense: Copyright is a restriction on freedom of speech, and important and inherent right. Why would the public be willing to accept such a limitation, unless it provided a benefit to them greater than the cost?
If copyright were only about benefit to the public, there wouldn't be copyright at all. Period.
No. The public benefits when works are created, published, and in the public domain. Without copyright, we know from history that some, but perhaps not very many, works would be created and published, and instantly be in the public domain.
The idea behind copyright is that by tolerating some delayed gratification, we can encourage authors to create and publish works which they would not have done otherwise, and then after a time get them into the public domain. If it's done right, the benefit from the additional creation and publication will outweigh the detriment of not having them in the public domain immediately (though of course, they must ultimately enter). Ideally, the system will maximize the public benefit by encouraging the most amount of creation and publication for the least amount of copyright; it's basically a matter of finding the sweet spot before diminishing returns set in.
If you dissolve the benefit to its creators, by extension, you destroy the benefit to society; by lack of creation. You can't have one without the other.
No. History proves that there will still be some creation and publication even if there is no copyright. This becomes our baseline: copyright is only worthwhile if it causes a public benefit, measured in terms of works created, published, and in the public domain, greater than if there were no copyright at all. If we could not devise some sort of copyright that produced a greater public benefit than this baseline, we'd literally be better off not having copyright.
Whether we grant copyrights, and if so, how beneficial to authors they are, they have to be measured in terms of the net public benefit alone. Whether or not the authors like the deal they're offered is irrelevant, save for how it benefits the public. I've never minded if authors incidentally happen
As it stands now, a copyright cannot be lost through the failure to defend it; at most the copyright would only be rendered slightly less effective, and then only as to the person who was infringing.
I think that you're misunderstanding what a copyright is, how it works, and how it differs from other, unrelated things such as trademarks.
Briefly: A copyright is a right to prohibit other people from doing certain things with regard to a work; it is not a right to do those things oneself. (E.g. holding the copyright to a libelous book lets you stop other people from publishing it so that they cannot compete against you, but you effectively cannot publish it either.)
If someone infringes on the copyright, it means that they are doing those things which you have prohibited. Allowing them to do so basically just means that they get a pass. It doesn't invalidate the copyright as to the rest of the world. (Some have floated the idea of adverse possession as a solution to the orphan works problem, but we're not there yet)
Prohibiting the author from assigning his copyright to someone else has nothing to do with this at all.
In trademarks, a field completely unrelated to copyrights, a trademark can be lost under circumstances which involve allowing infringers to have their way with the mark. But the actual reason is that trademarks are only viable when, in the minds of the relevant customers, they serve to identify goods or services bearing the mark as originating from a particular common source.
For example, all computers labeled MACBOOK come from Apple, Inc. But computers labeled LAPTOP could come from anywhere. If a third party uses a mark in such a way as to confuse customers into not knowing whether the marked goods come from one source or the other, then the mark is no longer viable; that's why it is lost. It's the same thing if people start treating the mark in a generic sense, not caring whether it indicates a particular origin or not. ELEVATOR was a mark for a particular company's vertical conveyance device; because the public associated the mark with the device itself, as opposed to devices from that particular company, the mark was lost. (Marks like XEROX and KLEENEX have been hovering on the brink of this for years)
In extreme cases, and under the right circumstances, a mark could even be usurped, where instead of not knowing which source marked goods come from, the customers start to associate the mark with the infringer alone. But this is fairly rare.
Still, there's no obligation to defend a trademark except when needed to avoid consumer confusion, and then, it's not even so much an obligation as it is a desire to protect a mark; the trademark holder is allowed to give up. Not every little thing needs to be the subject of cease and desist letters or lawsuits in order for a trademark holder to protect himself.
and for some reason the USPTO thinks he's 'alive' (perhaps that word doesn't mean what I think it means).
It means the trademark is live, which means that it is the subject of a pending or current registration with the PTO. Dead marks have had their registrations or applications abandoned, expired, or canceled (which doesn't mean that the user of the mark lacks rights in it, just that it's not actively registered as a federal mark).
It's supposedly time limited now. I don't see how making it inalienable would accomplish anything, though.
Copyright was intended to be a balance, an equal exchange.
No it wasn't. Copyright is intended to benefit the public. It's not supposed to be balanced or equal. It should produce the greatest possible net public benefit. If authors also happen to benefit, then I guess that's nice, but it's not important.
The original duration of copyright was 14 years. This was during the late 18th century.
14 years plus potentially another 14 year renewal term. And that was the early 18th century into the 19th.
Therefore, if anything, the original duration of 14 years should be reduced to maintain the same balance we once had.
Don't become enamored with a 14+14 term length just because it's historical. The number and length of terms should be determined by what best serves the public interest. Could be shorter, could be longer.
Instead copyright has been extended and in some cases it can be as long as the author's lifetime plus 120 years.
IIRC, in the US (your link was to a page about terms in the US) in most cases it's life+70, or 95 from first publication, or 120 from creation, depending on certain facts about the work.
Perhaps we need a "loser pays" system specifically for intellectual property laws.
In some circumstances, it is possible to get attorneys fees awarded. But generally I'd be wary of this; copyright, patent, and trademark laws are all heavily weighted in favor of the rightsholder. A strong loser-pays rule would probably only strengthen the rightsholders and cause there to be more lawsuits.
Well, you can't copyright a name, so this is probably a trademark case. The fair use doctrine of copyright would not apply. You may want to look at the (completely unrelated to copyright) fair use and nominative use doctrines of trademark law, however.
What kind of elves are they? Tolkien elves you say? Certainly fits the criteria of a secondary meaning.
I don't know. I think you may be confusing elves that originate from Tolkien, and elves that are in the same general vein as Tolkien's; Tolkienesque, if you like.
I don't think that the Tolkien estate can lay claim to high fantasy elves, even if Tolkien did create them, as distinguished from fairie-like elves, dwarf-like elves, Santa's elves, etc.
Was that the Apple Powerbook 540c (2.3" thick, 7.3 lbs, not counting the power supply)?
That was not a bad laptop in the mid-90's.
OTOH, the Mac Portable (4" thick, 15.8 lbs) from several years earlier was never a good portable computer.
Well that would be nice (although perhaps it should depend on how long it's been since the resolution change; if it's been a long enough time, you might no longer prefer the previous setup), but I'm just reporting my experience with it; plugged into a 1080p tv, it's a roll of the dice every time I turn it on from hibernation as to where the desktop icons will be, and what size they'll be. There's some sort of screw up happening somewhere.
none of the icons on your desktop have a fixed position,
Tell me about it. I have an HTPC running Vista, and the damn thing is always shuffling around the locations (and sizes) of the icons on the desktop.
I'd love to be able to pin them into place and be able to rely on them not moving or changing. Or alternatively, to pin down the guy at MS responsible for this bad behavior -- with rail spikes.
Oh that's why it is so intuitive to put a floppy in the trash to eject it. Hmmmm?
I agree, it's weird, and in practice it tended to confuse people, but it helps to understand the history behind it.
Way back in the day, the Mac ran entirely from floppy disks. In fact, the original Mac couldn't use a hard disk at all (unless I've forgotten about some obscure third party disks, which is possible). For many years, it was not unusual to encounter Macs that had to be run from the floppy drive, popular as hard drives became. IIRC, hard drives were not standard equipment on all models until probably '91 or '92.
Worse, most Macs only had one floppy drive. You could get another one (usually external, though some Macs, like the SE or the II had a second bay that could be used for a floppy drive) but they were a bit pricey, and as long as you're spending money, you might as well get a hard disk instead.
This meant that you had an icon-based system that had to allow people to copy data between two different floppy disks, only one of which was physically present at a time. Masochists could even try putting the OS, applications, and documents on different disks, and swap between them as needed.
The solution that was devised was that if you selected a disk icon on the Mac, and used the 'Eject Disk' command (remember, the Mac didn't use eject buttons on the drives), it would eject the disk from the drive, but leave it mounted in the OS, with its icon still visible but greyed out. You could then insert a second disk, and then do something like copy a file from the second disk to the first, and the OS would prompt you to swap them as needed. (For people who remember the infamous Disk Swap Tango, see this page by Steve Capps, who explains a bug he caused that made this worse than it had to be)
Along with the 'Eject Disk' command, which ejected but did not dismount the disk, there was also the generally-forgotten and poorly named 'Put Away' command, which would, if a disk was ejected, get rid of the greyed out icon, and if a disk was not ejected, would eject it and get rid of the greyed out icon. It could also do some other things depending on context, though my memory is no longer clear as to whether those functions arose in System 7 or were around earlier, and I'm too lazy to look through my old manuals.
During usability testing, this was all found to be fairly annoying. So a shortcut was developed: If you dragged a disk icon to the trash, it invoked the Put Away command on it.
As it happened, everyone wound up doing this instead, and the Put Away command was almost entirely forgotten. Then, once hard disks were commonplace, and people rarely needed to swap removable media in this fashion, the Eject Disk command was changed to completely eject and dismount disks.
I believe that Tog (one of the Apple UI bigwigs) once discussed having the trash icon change to an eject icon when a disk was being dragged, but that they couldn't figure out a way to do it elegantly, and there was some concern over how people would respond to the change in the UI. Then, when OSX was brought out, which really drew from the NeXT UI more than the Mac UI anyway, this was implemented. Drag a disk to the Trash on a Mac now, and the Trash icon will change to an Eject symbol.
It probably didn't help that symbols for things like 'Eject' were not really universal yet. As near as I can tell, the symbol now in use is derived from top-loading VCRs and cassette tape players -- many of which would just use text instead anyway.
The GPL example isn't complex, it's simple.
I didn't say that the GPL was complex. The GPL covers a situation more complex than: Here is one copy of a program, you may run it on one computer (making copies or adaptations as needed to accomplish that), and may make backups.
As v2 of the GPL says:
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of running the Program is not restricted....
It is only in America in the developed world where the performers do not get royalties.
Yes, we are once again leading the way. Others could learn from our example.
The ideal copyright would be the absolute bare minimum possible that still causes an author (in this case a performer) to create and publish works that he otherwise would not have. That's just being efficient. Since we treat people equally, and can't grant rights on a case-by-case basis, we have to look for trends, and must watch out for diminishing returns, where the sweet spot of least rights / most output lies for a particular industry, etc.
The US has never suffered a drought of performers. Indeed, we've generally been incredibly prolific musically, and plenty of performers from abroad try to break into our market, come to tour, get airplay, sell records here, etc.
So clearly while the performers might prefer to get paid more -- and who can blame them -- they're willing to work regardless. If you go to get your car repaired, you don't decide to pay twice what you're billed just because the mechanic is a nice guy. That's foolish. And it would be just as foolish to pay performers more money when it's not absolutely necessary.
When performers go on strike, and refuse to record or perform music, then let's talk about how the US can treat them better. Until then it would simply be contrary to our own interests to do so.
It counts as a cover act (dj is required to crossfade and talk over music so it is not record quality).
No it doesn't.
Broadcasting music on the radio is a public performance. Copyright includes a right to prohibit public performances for musical works (i.e. songs and lyrics), but not for sound recordings (e.g. records and CDs) (except by digital means, a fairly recent change which has been kicking the shit out of Internet radio).
Therefore, you have to get a license from the copyright holder to broadcast CDs on the radio -- because of the underlying music, rather than the recording itself. This can be negotiated with every single songwriter, but it's far easier to get a license from the various performing rights organizations (e.g. ASCAP, BMI, SESAC) which have their own arrangements with the songwriters, and act as middlemen. Of course, nothing obligates them to grant permission. The same thing is true when you perform music live in public. The band (or more likely the venue) will have to have the proper licenses for that music to be performed by someone other than the copyright holder.
OTOH, a cover is when you make a sound recording of a performance of a song written by someone else, and then distribute copies of that new recording. There's a licensing procedure built into the law for this which avoids the need to get permission, though nothing stops you from negotiating separately if you like. There's a fee for doing it set up in the law, and various requirements that have to be complied with.
Whatever they do on the radio, it can't possibly fall under whatever sorts of protections are available for cover recordings.
Plus, I think you're just listening to crappy radio. I've heard plenty of songs in their entirety. If DJs are talking over the music, or crossfading the music, it's because that's what the radio station wants them to do.
Back in the old days, the rationale behind licensing software for ordinary use was that in order to run it, in order to copy it on to a different medium (e.g. installing something from tapes or floppies onto a hard disk), or in order to make backups, copies would have to be made, and making those copies could be unlawful if copyright law applied to computer software. Therefore, the user would need a license in order to do those things if copyright applied. If it didn't apply, better to have some sort of contract than none at all.
It wasn't until several years after the 1976 Copyright Act (which was a major revision of the law, replacing the 1909 Act, and is still what we use today) that the government finally worked out how it wanted to handle software copyrights. Section 117 of the Copyright Act was enacted, and it basically says that if you own a copy of a computer program, you have a right to make such copies and modifications as are necessary in order to make it run, and you have the right to make backup copies for your own use, provided that you don't keep the backups if you don't keep the original. (N.B. however that there are still serious problems with the intersection of computers and copyright, mainly involving the reproduction right, the inescapable fact that all computers copy things incessantly just in order to function, and the strict liability nature of civil copyright infringement)
Thus, the need for a license for ordinary users is obviated. Copies could be sold outright without preventing users from lawfully doing what they need to, and without jeopardizing the rights of the developers or publishers. Only more complex situations -- site licenses, distributing modified copies as per the GPL, etc. -- actually require licenses.
However, end user licenses are traditional, apparently, so the industry mostly still uses them despite not needing to. I've never been able to figure out why, nor have other lawyers I've asked who should be in a position to know, with the exception that it allows software companies to include pretty abusive power grabs against their customers without appearing to do anything out of the ordinary.
I'd sort of assumed that they were licensed the way that other media is licensed.
I guess that's true, in a way.
Virtually no media is licensed. When you buy a book from a bookstore, you simply buy it. There's no license. You can do anything you want with it, as long as you don't break the law. Making copies of copyrighted books is against the law (unless you fall within certain exceptions). Reading or lending copies of copyrighted books is not against the law, (provided that you lawfully have access to them -- you aren't allowed to break into a building in order to read a book, for example) therefore, you can do it.
In the US, anyone who owns a lawfully made copy of a book can lend that book out, rent it, sell it, use it to prop up uneven furniture, etc.
Ditto for CDs, DVDs, works of fine art, etc.
The only area where there's a significant trend of licensing instead of ordinary sales is for software, and while this may have developed for odd historical reasons, it's actually completely pointless now, due to changes in the law. Yet it is still the accepted practice, out of habit, I guess. Unfortunately, this tends to confuse people into thinking it is somehow normal, when in fact, it is abnormal.
However, since downloading necessarily involves the making of a new copy, and since making new copies of copyrighted works is not legal, unless you have permission (i.e.a license) from the copyright holder, licenses are relevant for downloading music, or movies, or games, or ebooks. Without changes to the law to handle new forms of what really should be distribution, power is shifting to copyright holders, and we can expect more of this sort of thing in the future.
(The 'wearing out' thing makes no matter; a well-cared for book can last for centuries)
They work when civilization collapses and they're found centuries later in a cave
Why would I care?
It's happened (more or less) before. Aside from just being nice to help future historians, religious scholars, readers of classical literature, etc., know about us for their own enlightenment, if civilization collapses, preserved books can keep knowledge alive. They helped out the Renaissance quite a bit, although had to be discarded as we progressed to the Enlightenment, since they hadn't gotten that far themselves.
You seem to be confusing e-books in general with DRM.
True, but even without DRM, there's nothing to indicate that electronic records are particularly robust or long-lived. It's a pain in the ass to read punch cards or paper tape, much less run software or understand the data encoded on them. And those media were in use within living memory. Human readable paper books are pretty durable and easy to copy, republish, and distribute (which are also important for long term survival of information).
I'd say that it would be a good idea to have computer printers that can output to stone tablets, but then HP's would probably bitch about being low on quartz or something.
Fair treatment of IP and adequate reward for authors is our means.
I disagree. First, the copyright system should only pursue the public benefit. Whether we have a copyright law or not, and if so, what it consists of, precisely, should be considered only through this lens. If a system benefits the public the most, it doesn't matter whether or not it is fair to authors. I suppose it would be nice if the copyright law that were best for the public also happened to be fair to authors, but the two things are wholly unrelated.
Likewise, while copyright is purely an economic incentive, copyright does not, and has never, provided an adequate reward for authors. Authors only get a monopoly on certain actions relating to their work. Whether or not they can exploit this monopoly in such a way as to get an adequate reward is their problem. Most works have no copyright-related economic value; their authors will get no adequate reward from copyright. The small number of works that do have a copyright-related value are usually not worth a great deal. The few works that are of substantial value are rare enough that it's akin to playing the lottery. The stereotype of the starving artist exists for a reason; art is not a good career choice if you want money. Fortunately, there are a number of other incentives at work which cause people to create art.
Registration is patently unfair to authors.
Funny. It worked so well in the US from 1790 to 1978, with renewal registrations required until 1992, and registrations still required if you want to enforce a copyright (or have worthwhile remedies).
Why? It introduces a workload and a cost to the creator than independents can't cover.
The workload is about on par with filing a change of address form. It's basically some brief information about the work, e.g. title, name of author, date of publication, what portion of the work is copyright claimed on, contact information, etc. Any adult faces far more challenging forms than this routinely. I suppose that you will next argue that artists should not have to file their tax returns -- a far more challenging task, I assure you -- because that also imposes an expense to them in terms of effort and cost.
I say grow up.
This means that SuperHeroMan 43 with its budget of millions of dollars will be registered worldwide in a flash but Independent Zombie Flick with it's $1000 shoestring budget will only be registered in one or two countries.
Probably because the former movie is expected to be released worldwide, while the latter movie will probably only be released in one or two countries. If they're going to release it abroad, they're going to have to clear some administrative hurdles anyway; they're going to need to draw up contracts with foreign distributors; they're going to need to deal with customs as they import copies into the foreign country; in many countries they're going to need to submit the film to the state censorship board; if they're making money abroad, they may need to file their taxes in the foreign country. Making sure that they have a foreign copyright is just another item for the checklist. It shouldn't be difficult or expensive, but it should require some affirmative action to get.
Otherwise, how are we supposed to distinguish an author who does want a copyright, from an author who doesn't want one, who doesn't care, and who isn't willing to even take affirmative steps to not get one? We can't give away copyrights willy-nilly, whether people want them or not. This is wasteful, and harmful to the public, who could be enjoying a public domain work, but for the automatically granted copyright. The people in the best position to know whether or not a copyright is wanted are the authors themselves. Let them apply for the copyright if they want one. Don't make it hard, but do require them to step up.
This raises the bar for entry into the c
Because of copyright, each has to be new and unique rather than a recapitulation.
Not so. First, there is no requirement that books be copyrightable; a book that's just an unoriginal collection of factual information is still a book, copyright notwithstanding.
Second, copyright doesn't require uniqueness, only originality. That is, copyrighted material cannot be copied from some other source, but that doesn't mean that it cannot be identical to existing material. It's patents that have a novelty requirement.
Third, it's perfectly acceptable for books to be derivative works, so long as either the works they are based upon are either in the public domain or were used with permission. For example, 'Wicked' by Gregory Maguire is derivative of the book 'The Wizard of Oz,' which is in the public domain. Derivatives include sequels, adaptations (e.g. the book of the movie), translations, etc.
And for every Shakespeare, there are a million monkeys typing out Harry Potter fan fiction.
Meh. While most fan fiction is crap, most original books are crap too. This doesn't mean that there cannot be fan fiction that is as good as or even better than the source material. The Aeneid, a great work of classical literature is a piece of Roman fan fiction based on the Illiad. There's no rule that says that Rowling has to be the greatest Harry Potter author of all time.
If they were allowed to do more derivative work, do you think that they'd keep up with the production of original work.
They're allowed to do as much as they like, so long as they either use public domain materials or get permission from the copyright holder. Disney has made a specialty of doing derivative works with their animated movies,