With all the sound and fury about people "stealing" copyrighted materials, how is Apple getting away with this?
Best as I can tell, EACH Instance should be punishable with thousands of dollars of fines and jail terms for those at Apple who authorize this.
It's not illegal. Apple either has permission from the rightsholders for the music they offer, or a statutory right to offer it, and doesn't offer the music for which they don't have permission or a right.
Well, looks like/. ate and posted an incomplete post of mine. I guess I won't try writing any posts from my phone in the future, if their UI is going to be this crappy. Let's try again, with a few revisions:
I think she's calling for a bit too much out of Apple.
Apple is a hardware company; any products or services they offer other than hardware are only relevant to them because they think it'll help them sell hardware. Apple also has a justified complex regarding self-sufficiency. More on that presently.
When listening to compressed music on computers began to take off, Apple responded by buying SoundJam MP, modifying it, and releasing it as iTunes. Mostly this was to sell computers -- making sure that people knew that Macs were well-suited to storing, organizing, and playing music files, and could also rip and burn CDs. It was also part of their complex to not rely on third parties to provide important features, and this was now deemed an important feature, with the iPod beginning development shortly after the purchase of SoundJam, and with iTunes to be the syncing software for it.
Releasing a Windows version of iTunes, and selling music via the iTunes Music Store were both just strategies to sell more iPods. Apple figured that some people would buy downloaded music at the 99 cent price point, and that some of them might even be former pirates. The store's label-mandated use of DRM would also help lock customers into the iTunes ecosystem, helping to sell more iPods.
Streaming is just more of the same; because of free streaming, many people who would buy music, or who would pirate music, have flocked to listen to music legally for free (at the expense of having to use bandwidth to stream, not having offline copies, and losing some degree of choice in what you're listening to when. Also, ads). While the iPhone is now more important than the iPod, Apple likes having people locked into the iOS ecosystem. They like having people buy iOS devices, on which music listening is still a core feature (and will continue to be, e.g. with the CarPlay platform). Streaming has become important, and like all important things, it can't be left in the hands of third parties. Therefore Apple must provide music streaming.
But music streaming is a crappy business. Almost all the users stay in free tiers; a mere handful actually pay. Apple's plan is to draw users in with a free time period and then hope for a good attach rate when the time comes for users to either cancel or pay to subscribe. I doubt that Apple will get more than 10 million paying customers (and therefore will only get revenues of around $200 million their first year, and around $300 million in later years after accounting for payments to rightsholders). Frankly, they can find more money than that in their couch cushions. Apple isn't interested in streaming for how profitable it is (read: it really isn't). And I'm sure that they know that in the absence of free streaming, most people will go right on back to pirating music again (with some returning to the iTunes Store, which suits Apple fine).
The whole point of Apple's streaming service therefore is just to keep their hand in, and to prevent a potential rival from being in a position where Apple is so dependent on the rival that the rival has power over Apple.
So can Apple pay rightsholders during the free period? I'm sure they can afford it. Although it makes no economic sense for Apple, as it would cost over $20 million per million free users, and with low attach rates expected, this could easily run over a billion dollars in payouts for a business expected to generate far far less than that. It's frankly not important enough to them to do it. Putting up with Taylor Swift whining at them, and rightsholders loudly complaining that the world is no longer stuck in the 80's and early 90's, is not too big of a cross to bear.
Apple's options other than a free trial period are a free tier, or no free anything. We already know what Swift thinks about
ASCAP, BMI, and SESAC are the three main performing rights organizations in the US. All of them represent the holders of the music copyrights (e.g. songwriters), not the sound recordings made by artists.
An author's copyrights can be assigned or transferred to a third party. This leaves the author with only the same rights as any member of the general public. (There are a few narrow exceptions, but nothing that would prevent the possibility of an author infringing on the copyright of a work he created)
It's also possible for a person who prepares a work to not be considered the author. This is the case for works made for hire.
And of course copyright isn't mandatory, though that just leads to works being in the public domain, so at least there's no danger of infringement there.
However, bear in mind that copyright only applies to original material, not to pre-existing material. A review which includes a quote is copyrightable, but the new copyright for the review only covers the portion original to the reviewer; the material quoted is only covered by the copyright of the work the quotes are drawn from.
17 USC 103(b):
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
Though there was a good reason for the original compact Macs to discourage users from opening them up -- there were exposed high voltage monitor electronics in there which could give you a hell of a zap of not properly discharged.
The later all in one Macs of the 90s were better in that regard. Their user suitable parts (motherboard, drives) all were easy to get at, but the monitors and power supplies were fully enclosed.
Local delivery (Fed Ex, UPS etc) will still have an operator (or perhaps two or more) that can jump out with the package while the delivery truck drives around the block
That's what the Amazon drones are for. The truck just has to cruise through the neighborhood. Meanwhile, small drone aircraft that it carries will work to carry packages out of the truck and to front doors. A human will still be needed for heavy or bulky packages, or for deliveries that have to be brought inside or where there's no convenient place for the drone to land to deposit them, but those packages and destinations can be separated from the others at the local depot, and all put on a smaller number of trucks, therefore needing a smaller number of humans. You won't need a human for every truck if you work out the routes each day based on the nature of the packages you've got and where you're taking them.
Google does have an effective monopoly in search, and it's not a bad idea to have some degree of regulation in place to make sure that it doesn't harm consumers. (Though nonsense like a 'right to be forgotten' is going too far, and should be dropped)
The problem is that that very well may not be the EU's only motive here. At about the same time that the charges were announced, Gunther Oettinger, the EU's Digital Commissioner gave a speech where he said:
A great challenge is also Europe's position in the development of the next digital platforms that will gradually replace the current Internet and mobile platforms. We have so far missed many opportunities in this field and our online businesses are today dependent on a few non-EU players world-wide: this must not be the case again in the future.... We need European industry 4.0 champions to win the global game in industry 4.0.... Industry in Europe should take the lead and become a major contributor to the next generation of digital platforms that will replace today's Web search engines, operating systems and social networks.
Maintaining a level playing field and ensuring fair competition is one thing. Using the law to rig the market in order to engage in protectionism, however, is not acceptable. If the EU wants to pursue Google, they're going to need to do so in a way that is justifiably beyond reproach. Otherwise it's relatively easy for Google to restructure the way it does business internationally to avoid the EU from having any power over them, while still offering its services to persons in the EU, and to have many people cheer them on in the process.
The mafia style tactics were probably a reference to the sad case of Karen Silkwood, a whistleblower in the nuclear industry who had died under mysterious circumstances only a few years earlier.
Then you fall into the second category. Or you're just ignorant.
Well, I'm a copyright lawyer, so I doubt I'm "completely and totally ignorant of the law." Have you considered the possibility that your analysis is wrong?
Since we're talking about works that haven't been around long enough to have their copyrights expire, that's totally irrelevant.
Just thought I'd mention it, since you did make a rather broad statement suggesting that works cannot enter the public domain unless deliberately placed there by the copyright holder. While copyright holders can put works into the public domain, it's not true that that is the only way for works to enter the public domain.
"Um, no. That would not be the scenes a faire doctrine."
The scenes a faire doctrine, which I don't have to google for, thanks, permits people to copy without fear of infringement, stock elements from works, which are typical, if not indispensible, for works that have a particular setting, genre, theme, etc.
In this case, where you have a show about teenagers fighting monsters with martial arts and giant robots, it would not infringe if you had a five person team, each member of which had personalities as described above, and where the members of the team were color-coded. It's simply expected of the genre, and therefore fair game, even if you copied it from another copyrighted work.
Now if the specific thing you copied was a very detailed example, and you kept all the details, you might then have a problem. So it depends on how much Power Rangers embellished on this standard device, if they did, and if so, how much of that embellishment, if any, was used in this case.
If you disagree as to my explanation, please feel free to actually say what you think the scenes a faire doctrine is.
I didn't say Disney's Peter Pan. I was talking about JM Barrie's Peter Pan, which Disney's Peter Pan is based on.
A new version of Peter Pan, based on Barrie's, could still tarnish the character well enough (if done right, and if widely published) so as to harm Disney's Peter Pan merely by association. But it would be lawful to do this. Disney's copyright on their version of Peter Pan does not extend to stopping other people from making their own derivatives of Barrie's work, even if they're very unwholesome derivatives.
Spock in Amok Time is good Spock, just rageful and murderous. Evil Spock (with a goatee -- that's how you can tell he's evil) was from episode 33, "Mirror, Mirror."
And time shifting doesn't use just one. Time shifting monetized (when done by a company) is almost always not fair use. Tivo is the only one that survived legal challenges.
Time shifting is typically something that the end-user does. Tivo, like Sony before it (The original time shifting lawsuit was against Sony for their Betamax), merely makes the machine. So long as there is at least a potential lawful use for the recording function of the machine, they can go on making them. The Supreme Court found that at least some time shifting would be fair, and that was enough.
Space shifting is another example, the original case was against Diamond for their Rio MP3 players, but Apple's iPod relied on it, as did basically everyone else.
But it meets more than just one criteria. It's non-commercial.
No, the purpose of the use for time shifting, while not precisely commercial, is to simply use the work in the way that an ordinary user, who did not time shift, would use it. It's not strongly against fair use, but it certainly doesn't weigh for it in the way that an educational or transformative use would. At best it is a wash.
I don't think the parody exemption for copyrighed works applies to things protected by trademark, which I wouldn't be surprised if the Power Rangers are.
It does.
(Though the question of parodying a mark directly is different from parodying a work which happens to contain a mark. Parodying Star Wars, which includes X-Wings, and the Millennium Falcon, and Lightsabers, and so on is different from parodying the Star Wars logo all by itself)
Also, remember that trademarks are inferior to, and cannot be used as a substitute for, copyrights. And that trademarks themselves are subject to various limitations to allow for certain types of unauthorized use.
Peter Pan is in the public domain in the US. You can absolutely have Peter Pan promoting drug use ('fairy dust' can be the street name; a side effect might be paranoid hallucinations of ticking crocodiles, etc.), and publish it widely enough to detract from Disney's ability to keep Peter Pan a wholesome character that they can make tons of money off.
Go nuts.
But because people can ignore that -- In fact, I'm confident that there are bad porn versions of Peter Pan floating around -- it doesn't really detract from the original, or from the Disney movies, unless you allow it to. It's up to you, the audience member.
a parody is allowed to use however much of the original work it wants to.
That's not quite right.
There's no special status for works which are parodies. Some parodies can be fair uses, but not all parodies are. And not all fair uses are parodies, though some fair uses are.
In any case, one factor in determining whether a use is fair or not is how much, and of that how substantial a part, of the original work is used. It's possible to have a fair use that uses all of a work, but also possible to have a use which uses very little of a work, but which is not fair.
While it all depends on the circumstances at hand, a good rule of thumb is to take only so much as you need. If you wanted to make a parody of Star Wars about how Luke waving the lightsaber around in Obi-Wan's house is dangerous, because Luke is a klutz, you could probably use some footage of that scene from the movie. You would have a harder time justifying using the entire movie, but only changing that one scene for the purposes of parody.
You're allowed to use copyrighted material to parody that specific material, but not to parody something else.
This is the oft-cited parody/satire dichotomy.
No seriously, some people really get into this stuff.
Anyway, it's not a bright line rule or anything, though some people like to pretend that it is. Satire is just as able to be a fair use as a parody can be, and a loss on the third fair use factor does not by itself prevent a use from being a fair use. There are no bright lines in fair use; it's all case-by-case analyses, utterly dependent on the specific facts at issue.
That's not really true. There is no hard and fast rule to this effect. Certainly fair use allows for both some parodies (but not all parodies) and some satires (but not all satires).
Courts generally are more likely to find fair use where the use was limited to what was needed, and generally find that satires don't need to use particular works so much as parodies do (because a parody is aimed at the work itself, whereas satires merely employ a work to aim at a different target altogether). But there's nothing in the law that prevents a satire from being a fair use depending on the overall circumstances. It's just a little harder to show.
No, he was right. It's not the character that's copyrighted per se -- though it can be a useful shorthand to talk as if it is -- it's the works containing the character that are copyrighted.
Using the character is no different from using any other part of the work that the character appears in.
Also trademarks are inferior to, and no substitute for, copyrights. When the copyright for Steamboat Willy ends, a significant amount of the trademark protection for Mickey Mouse will end with it. This is because the use of a trademark indicates that all such marked goods originate ultimately from a common source. If anyone is allowed to make new works which are derivative of public domain Steamboat Willy, as copyright permits, the MICKEY MOUSE trademark for such works cannot serve to indicate a single source. Therefore the trademark suffers genericide.
The mark can still survive in other contexts -- Peter Pan is both a public domain character in the US and also a trademarked brand of peanut butter and intercity bus services -- but the copyright does some serious damage to it.
Look into the Shredded Wheat case for a similar situation involving the expiration of a patent dragging down a trademark, and the Dastar case for trademarks not being permitted to serve as a substitute for copyrights.
If there is no original footage, there can be no copyright violation on the original works. Fan-fiction, whether the author allows it or not, is not part of the original author's copyright. The author has legally no say in what other people can and cannot write (and any legal decision that says they do is unconstitutional).
It's a derivative work. Copyright includes an exclusive right to prepare derivative works. Good luck with your argument about it being unconstitutional.
But the copyright that we're talking about is not a copyright on the original work, it's a copyright on the characters.
Technically there is no copyright on the characters standing alone. The copyright is on the work the characters first appear in. (Or for later traits of the characters, the works in which those traits first appear) When you use characters, you're really making a new work which is derivative of that part of the previous work in which the characters are defined.
Character copyright is just a sort of shorthand for this idea, but it's not a distinct thing.
Possibly not in this case, but fair use is not applied in a strict way. Consider time shifting: It's not creative, it uses fictional works, it uses all of the work, but it doesn't materially harm the market for the work. Only one of the four factors is in favor of fair use, but time shifting is generally considered to be fair.
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With all the sound and fury about people "stealing" copyrighted materials, how is Apple getting away with this?
Best as I can tell, EACH Instance should be punishable with thousands of dollars of fines and jail terms for those at Apple who authorize this.
It's not illegal. Apple either has permission from the rightsholders for the music they offer, or a statutory right to offer it, and doesn't offer the music for which they don't have permission or a right.
Well, looks like /. ate and posted an incomplete post of mine. I guess I won't try writing any posts from my phone in the future, if their UI is going to be this crappy. Let's try again, with a few revisions:
I think she's calling for a bit too much out of Apple.
Apple is a hardware company; any products or services they offer other than hardware are only relevant to them because they think it'll help them sell hardware. Apple also has a justified complex regarding self-sufficiency. More on that presently.
When listening to compressed music on computers began to take off, Apple responded by buying SoundJam MP, modifying it, and releasing it as iTunes. Mostly this was to sell computers -- making sure that people knew that Macs were well-suited to storing, organizing, and playing music files, and could also rip and burn CDs. It was also part of their complex to not rely on third parties to provide important features, and this was now deemed an important feature, with the iPod beginning development shortly after the purchase of SoundJam, and with iTunes to be the syncing software for it.
Releasing a Windows version of iTunes, and selling music via the iTunes Music Store were both just strategies to sell more iPods. Apple figured that some people would buy downloaded music at the 99 cent price point, and that some of them might even be former pirates. The store's label-mandated use of DRM would also help lock customers into the iTunes ecosystem, helping to sell more iPods.
Streaming is just more of the same; because of free streaming, many people who would buy music, or who would pirate music, have flocked to listen to music legally for free (at the expense of having to use bandwidth to stream, not having offline copies, and losing some degree of choice in what you're listening to when. Also, ads). While the iPhone is now more important than the iPod, Apple likes having people locked into the iOS ecosystem. They like having people buy iOS devices, on which music listening is still a core feature (and will continue to be, e.g. with the CarPlay platform). Streaming has become important, and like all important things, it can't be left in the hands of third parties. Therefore Apple must provide music streaming.
But music streaming is a crappy business. Almost all the users stay in free tiers; a mere handful actually pay. Apple's plan is to draw users in with a free time period and then hope for a good attach rate when the time comes for users to either cancel or pay to subscribe. I doubt that Apple will get more than 10 million paying customers (and therefore will only get revenues of around $200 million their first year, and around $300 million in later years after accounting for payments to rightsholders). Frankly, they can find more money than that in their couch cushions. Apple isn't interested in streaming for how profitable it is (read: it really isn't). And I'm sure that they know that in the absence of free streaming, most people will go right on back to pirating music again (with some returning to the iTunes Store, which suits Apple fine).
The whole point of Apple's streaming service therefore is just to keep their hand in, and to prevent a potential rival from being in a position where Apple is so dependent on the rival that the rival has power over Apple.
So can Apple pay rightsholders during the free period? I'm sure they can afford it. Although it makes no economic sense for Apple, as it would cost over $20 million per million free users, and with low attach rates expected, this could easily run over a billion dollars in payouts for a business expected to generate far far less than that. It's frankly not important enough to them to do it. Putting up with Taylor Swift whining at them, and rightsholders loudly complaining that the world is no longer stuck in the 80's and early 90's, is not too big of a cross to bear.
Apple's options other than a free trial period are a free tier, or no free anything. We already know what Swift thinks about
ASCAP, BMI, and SESAC are the three main performing rights organizations in the US. All of them represent the holders of the music copyrights (e.g. songwriters), not the sound recordings made by artists.
An author's copyrights can be assigned or transferred to a third party. This leaves the author with only the same rights as any member of the general public. (There are a few narrow exceptions, but nothing that would prevent the possibility of an author infringing on the copyright of a work he created)
It's also possible for a person who prepares a work to not be considered the author. This is the case for works made for hire.
And of course copyright isn't mandatory, though that just leads to works being in the public domain, so at least there's no danger of infringement there.
However, bear in mind that copyright only applies to original material, not to pre-existing material. A review which includes a quote is copyrightable, but the new copyright for the review only covers the portion original to the reviewer; the material quoted is only covered by the copyright of the work the quotes are drawn from.
17 USC 103(b):
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
Though there was a good reason for the original compact Macs to discourage users from opening them up -- there were exposed high voltage monitor electronics in there which could give you a hell of a zap of not properly discharged.
The later all in one Macs of the 90s were better in that regard. Their user suitable parts (motherboard, drives) all were easy to get at, but the monitors and power supplies were fully enclosed.
These people are increasingly rare, given that more gas stations lack "full-service" pumps.
Well, chalk one up for electrics, I guess.
Tesla's working on automated full-service battery swapping stations. And apparently also on charging cords that can plug themselves in:
http://www.theverge.com/2014/1...
Robots of that sort already exist, so you can see the sort of thing he's probably referring to:
https://www.youtube.com/watch?...
Local delivery (Fed Ex, UPS etc) will still have an operator (or perhaps two or more) that can jump out with the package while the delivery truck drives around the block
That's what the Amazon drones are for. The truck just has to cruise through the neighborhood. Meanwhile, small drone aircraft that it carries will work to carry packages out of the truck and to front doors. A human will still be needed for heavy or bulky packages, or for deliveries that have to be brought inside or where there's no convenient place for the drone to land to deposit them, but those packages and destinations can be separated from the others at the local depot, and all put on a smaller number of trucks, therefore needing a smaller number of humans. You won't need a human for every truck if you work out the routes each day based on the nature of the packages you've got and where you're taking them.
Google does have an effective monopoly in search, and it's not a bad idea to have some degree of regulation in place to make sure that it doesn't harm consumers. (Though nonsense like a 'right to be forgotten' is going too far, and should be dropped)
The problem is that that very well may not be the EU's only motive here. At about the same time that the charges were announced, Gunther Oettinger, the EU's Digital Commissioner gave a speech where he said:
Maintaining a level playing field and ensuring fair competition is one thing. Using the law to rig the market in order to engage in protectionism, however, is not acceptable. If the EU wants to pursue Google, they're going to need to do so in a way that is justifiably beyond reproach. Otherwise it's relatively easy for Google to restructure the way it does business internationally to avoid the EU from having any power over them, while still offering its services to persons in the EU, and to have many people cheer them on in the process.
The mafia style tactics were probably a reference to the sad case of Karen Silkwood, a whistleblower in the nuclear industry who had died under mysterious circumstances only a few years earlier.
Then you fall into the second category. Or you're just ignorant.
Well, I'm a copyright lawyer, so I doubt I'm "completely and totally ignorant of the law." Have you considered the possibility that your analysis is wrong?
Since we're talking about works that haven't been around long enough to have their copyrights expire, that's totally irrelevant.
Just thought I'd mention it, since you did make a rather broad statement suggesting that works cannot enter the public domain unless deliberately placed there by the copyright holder. While copyright holders can put works into the public domain, it's not true that that is the only way for works to enter the public domain.
"Um, no. That would not be the scenes a faire doctrine."
The scenes a faire doctrine, which I don't have to google for, thanks, permits people to copy without fear of infringement, stock elements from works, which are typical, if not indispensible, for works that have a particular setting, genre, theme, etc.
In this case, where you have a show about teenagers fighting monsters with martial arts and giant robots, it would not infringe if you had a five person team, each member of which had personalities as described above, and where the members of the team were color-coded. It's simply expected of the genre, and therefore fair game, even if you copied it from another copyrighted work.
Now if the specific thing you copied was a very detailed example, and you kept all the details, you might then have a problem. So it depends on how much Power Rangers embellished on this standard device, if they did, and if so, how much of that embellishment, if any, was used in this case.
If you disagree as to my explanation, please feel free to actually say what you think the scenes a faire doctrine is.
I didn't say Disney's Peter Pan. I was talking about JM Barrie's Peter Pan, which Disney's Peter Pan is based on.
A new version of Peter Pan, based on Barrie's, could still tarnish the character well enough (if done right, and if widely published) so as to harm Disney's Peter Pan merely by association. But it would be lawful to do this. Disney's copyright on their version of Peter Pan does not extend to stopping other people from making their own derivatives of Barrie's work, even if they're very unwholesome derivatives.
Spock in Amok Time is good Spock, just rageful and murderous. Evil Spock (with a goatee -- that's how you can tell he's evil) was from episode 33, "Mirror, Mirror."
And time shifting doesn't use just one. Time shifting monetized (when done by a company) is almost always not fair use. Tivo is the only one that survived legal challenges.
Time shifting is typically something that the end-user does. Tivo, like Sony before it (The original time shifting lawsuit was against Sony for their Betamax), merely makes the machine. So long as there is at least a potential lawful use for the recording function of the machine, they can go on making them. The Supreme Court found that at least some time shifting would be fair, and that was enough.
Space shifting is another example, the original case was against Diamond for their Rio MP3 players, but Apple's iPod relied on it, as did basically everyone else.
But it meets more than just one criteria. It's non-commercial.
No, the purpose of the use for time shifting, while not precisely commercial, is to simply use the work in the way that an ordinary user, who did not time shift, would use it. It's not strongly against fair use, but it certainly doesn't weigh for it in the way that an educational or transformative use would. At best it is a wash.
I don't think the parody exemption for copyrighed works applies to things protected by trademark, which I wouldn't be surprised if the Power Rangers are.
It does.
(Though the question of parodying a mark directly is different from parodying a work which happens to contain a mark. Parodying Star Wars, which includes X-Wings, and the Millennium Falcon, and Lightsabers, and so on is different from parodying the Star Wars logo all by itself)
Also, remember that trademarks are inferior to, and cannot be used as a substitute for, copyrights. And that trademarks themselves are subject to various limitations to allow for certain types of unauthorized use.
Peter Pan is in the public domain in the US. You can absolutely have Peter Pan promoting drug use ('fairy dust' can be the street name; a side effect might be paranoid hallucinations of ticking crocodiles, etc.), and publish it widely enough to detract from Disney's ability to keep Peter Pan a wholesome character that they can make tons of money off.
Go nuts.
But because people can ignore that -- In fact, I'm confident that there are bad porn versions of Peter Pan floating around -- it doesn't really detract from the original, or from the Disney movies, unless you allow it to. It's up to you, the audience member.
a parody is allowed to use however much of the original work it wants to.
That's not quite right.
There's no special status for works which are parodies. Some parodies can be fair uses, but not all parodies are. And not all fair uses are parodies, though some fair uses are.
In any case, one factor in determining whether a use is fair or not is how much, and of that how substantial a part, of the original work is used. It's possible to have a fair use that uses all of a work, but also possible to have a use which uses very little of a work, but which is not fair.
While it all depends on the circumstances at hand, a good rule of thumb is to take only so much as you need. If you wanted to make a parody of Star Wars about how Luke waving the lightsaber around in Obi-Wan's house is dangerous, because Luke is a klutz, you could probably use some footage of that scene from the movie. You would have a harder time justifying using the entire movie, but only changing that one scene for the purposes of parody.
You're allowed to use copyrighted material to parody that specific material, but not to parody something else.
This is the oft-cited parody/satire dichotomy.
No seriously, some people really get into this stuff.
Anyway, it's not a bright line rule or anything, though some people like to pretend that it is. Satire is just as able to be a fair use as a parody can be, and a loss on the third fair use factor does not by itself prevent a use from being a fair use. There are no bright lines in fair use; it's all case-by-case analyses, utterly dependent on the specific facts at issue.
Parody is protected; satire is not.
That's not really true. There is no hard and fast rule to this effect. Certainly fair use allows for both some parodies (but not all parodies) and some satires (but not all satires).
Courts generally are more likely to find fair use where the use was limited to what was needed, and generally find that satires don't need to use particular works so much as parodies do (because a parody is aimed at the work itself, whereas satires merely employ a work to aim at a different target altogether). But there's nothing in the law that prevents a satire from being a fair use depending on the overall circumstances. It's just a little harder to show.
No, he was right. It's not the character that's copyrighted per se -- though it can be a useful shorthand to talk as if it is -- it's the works containing the character that are copyrighted.
Using the character is no different from using any other part of the work that the character appears in.
Also trademarks are inferior to, and no substitute for, copyrights. When the copyright for Steamboat Willy ends, a significant amount of the trademark protection for Mickey Mouse will end with it. This is because the use of a trademark indicates that all such marked goods originate ultimately from a common source. If anyone is allowed to make new works which are derivative of public domain Steamboat Willy, as copyright permits, the MICKEY MOUSE trademark for such works cannot serve to indicate a single source. Therefore the trademark suffers genericide.
The mark can still survive in other contexts -- Peter Pan is both a public domain character in the US and also a trademarked brand of peanut butter and intercity bus services -- but the copyright does some serious damage to it.
Look into the Shredded Wheat case for a similar situation involving the expiration of a patent dragging down a trademark, and the Dastar case for trademarks not being permitted to serve as a substitute for copyrights.
If there is no original footage, there can be no copyright violation on the original works.
Fan-fiction, whether the author allows it or not, is not part of the original author's copyright. The author has legally no say in what other people can and cannot write (and any legal decision that says they do is unconstitutional).
It's a derivative work. Copyright includes an exclusive right to prepare derivative works. Good luck with your argument about it being unconstitutional.
I don't want to see a rageful, murderous Spock.
Well, while I would say it's a classic, I would advise you not to watch Star Trek episode 30, "Amok Time," which features a rageful, murderous Spock.
I don't want to see a Superman film that makes me want to kill myself.
Also skip Superman III and Superman IV.
Yeah!
But the copyright that we're talking about is not a copyright on the original work, it's a copyright on the characters.
Technically there is no copyright on the characters standing alone. The copyright is on the work the characters first appear in. (Or for later traits of the characters, the works in which those traits first appear) When you use characters, you're really making a new work which is derivative of that part of the previous work in which the characters are defined.
Character copyright is just a sort of shorthand for this idea, but it's not a distinct thing.
Any one alone wouldn't be fair use
Possibly not in this case, but fair use is not applied in a strict way. Consider time shifting: It's not creative, it uses fictional works, it uses all of the work, but it doesn't materially harm the market for the work. Only one of the four factors is in favor of fair use, but time shifting is generally considered to be fair.