It may sound quaint to say, but principled application of the law is vital to a free society.
Ultimately, law is about power.
Under the U.S. Constitution and the Bill of Rights, the federal government is one of limited powers, meaning (at least it theory) that the federal government cannot lawfully act beyond the scope of its enumerated powers as expressly set forth in the constitution.
So, consider how profound (again, I know it sounds quaint) is the responsibility of those elected officials to act responsibly in how they legislate about such enumerated powers.
Copyright is part of the legislative power defined in Article I of the constitution. Right there in Article I, Section 8 you can see it among the fewer than 20 items set forth for what the Congress is supposed to do: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . To borrow Money . . . To regulate Commerce . . . To establish a uniform Rule of Naturalization . . . To Coin Money . . . To provide for the punishment of Counterfeiting . . . To establish Post Offices . . . To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . To constitute Tribunals inferior to the supreme Court . . . To define and punish Piracies . . . To declare War . . . To raise and support Armies . . . To provide and maintain a Navy . . . And To make Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
I elided a few of the enumerated powers but the above sets forth the great majority of them.
Thus, while it might be and often is argued that copyright protection does not actually achieve the things ascribed to it (promoting creative works, protecting artists’ rights in their creative works, etc.), the fact is that our laws are profoundly to the contrary: the idea of promoting the progress of science and useful arts via copyright protection (and patent protection) is right there among the fundamentals defining the essence of the legislative power of the federal government. And, to be listed at all among such powers is in itself profound because the states that formed the United States and ultimately ratified the constitution as a compact among them were jealous not to give any more authority to the federal government than was absolutely necessary.
That authority was granted only on the biggest of issues and was checked and balanced by and among the legislative power (Article I), the executive power (Article II), and the judicial power (Article III).
And yet there it stands: the power to promote the progress of science and useful arts, "by securing for limited Times to Authors . . . the exclusive Right to their respective Writings". Right there among the powers to print money, to declare war, to lay and collect taxes, to establish federal courts, and the like.
And that is why it was so utterly reprehensible when in 1998 the Congress took existing copyright terms that were to have run for 75 years and retroactively made them 95 years. Yes, the 1923 copyrights were to have expired in 1998 and, here we are, 20 years later, grateful to have them come into the public domain at last.
And in what sense did this retroactive copyright extension serve to promote the progress of science and useful arts? Well, in no sense at all. It imposed new rules retroactively. It provided for absurdly long lengths of copyright protection. It had no bearing at all on the idea of promoting the arts. As such, it constituted nothing more than a crude exercise of naked power utterly divorced from the principled reason for having copyright protection at all.
I believe in the value of copyright protection. I think there are excellent arguments to be made in its favor. But the cause of copyright protection was not promoted by the 1998 extension. It was significantly set back because people looking at what that Congress did are rightly revolted by the cronyism that cynically gave special favors to a privileged few and, suffering from the pain thereby inflicted on those who were needlessly burdened by completely arbitrary restrictions on being able to use works that deserved to be in the public domain, concluded that copyright protection itself is a great evil burdening society for no good purpose.
To repeat, principled application of the law is vital to a free society. What happened with copyright in 1998 was a gross departure from that important truth. Let us hope it does not happen again as the 2018 expirations are about to occur.
There are no studies because the only data set we have is the world we live in, where all the wealthy nations have some notion of copyright.
It seems obvious that IP provides some incentive to create, although how much is completely unknown. It also seems obvious that even in a world with no legal protection, people would still want to create, though again, how much is unknowable.
That's true, though it should be possible to study the effects of the Act of 1976, which extended copyright duration in the US from a maximum of 56 years to life of author + 50 years.
And it seems this was done:
"Despite the logic of the theory that increasing copyright protection will increase the number of copyrighted works, the data do not support it. Instead, our findings demonstrate that the historic long-run growth in new copyrighted works is largely a function of population"
That also doesn't seem surprising in the least, though some properly incentivized individuals might feign surprise. Using the same gut logic, very few people are thinking 100 years in the future when they decide to take on a project. 56 years seems long enough that a creator would be able to work without worrying about getting ripped off.
An argument could be made that traders at large holding firms would value IP more highly with a longer term, thus allocating more money, and incentivizing production, but there are so many links involved that I seriously doubt much of that could hope to make it back to the artist.
Anyway, I was just responding to the implication that a lack of objective data is enough to seriously consider abolishing copyright altogether.
At my former employer they started getting massive numbers of returns on a product they sold. We exchanged hundreds of the devices and when the numbers got unbearable we started diagnosing the problems. Some returns, mainly from faulty installations, were expected but hundreds was unprecedented.
They noted out-of-spec components on the boards, counterfeit components, and slight manufacturing defects.
This led to months of back-and-forth, often very heated, bickering between manufacturing, quality control, the service department, distributors, component suppliers, dealers, and the engineers who designed the product.
Eventually it was determined that cosmetically-identical boards were being manufactured by someone in a country that rhymes with Dyna and had made it into the supply chain.
The company then spent hundreds of thousands of dollars on a holographic label printer, and hundreds of thousands more on personnel, procedures, and specifications to attach in-house printed serialized holographic stickers in predetermined locations and orientations that varied based revision and board serial number.
We also completely changed how we sent out new boards, implementing an expensive process where every board was tracked from production to installation, frustrating many of our distributors.
This was a small/medium-sized privately-held company in the commercial/industrial sector. We estimated that almost $10 million was spent honoring bogus RMAs (which they continue to do), determining the source of the RMAs, and implementing a solution to reduce future RMAs.
If that $10 million had not been spent fighting someone ripping off my employer's IP, at least one and probably two new products could have been developed, considering that entire teams of people, from Management to Engineers to Technicians, were redirected to work on the RMA issue. Who knows how much money end users lost from downtime, because someone somewhere between us and the end user, decided to rip them off.
Software folks don't care. The last thing they do, both free and proprietary vendors, before releasing software is attach language like this:
THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
or this
IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
So who cares if their IP is ripped off?
My former employer can't do that. People may die if our products fail. There are statutory requirements to comply with. So we charged a lot for our products and offered iron-clad, no-exceptions, on-site support.
Instead of engineering down to a price point, we engineered for maximum safety and reliability.
But Wang Da Nian somewhere in Shenzhen decided that ripping off our designs, firmware, and trademarks and using the shittiest parts possible to insure that it would operate when installed all while taking the time to make it look EXACTLY like our product was a good business decision.
That hardly sounds like a success story for the current copyright/patent regime. Given that you had to resort to technical measures anyway, it sounds like the law was entirely useless to you. Meanwhile, we're all still paying the costs of it.
The term 'useful arts' does not refer to creative works and is in fact an antonym for endeavors like performing or fine art. I believe any protections of this sort actually flow from the interpretation of 'authors' and 'writings'. Article I is not intended to 'promote the arts' in the way any modern person would interpret the statement.
"And in what sense did this retroactive copyright extension serve to promote the progress of science and useful arts? "
Well it brought money to disney and they did produce art (...at least sometimes, the last Star Wars was not soo bad)
So if they would no have revoked it, all this money would have instead been spend on drugs or worse, instead of cementing the monopoly of our lovely family entertainment company.
Your "at least in theory" is not true in practice.
The 10th Amendment states:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
And the Supreme Court has ruled that "added nothing to the [Constitution] as originally ratified".
The Commerce Clause lets the federal government get away with just about anything.
The tenth amendment obviously did add nothing substantive to the Constitution. The Constitution explicitly enumerates the things the various branches of government can do. Explicitly stating that they can't do other things is no more necessary than an explicit inclusion of "No cheating" in the rules of a game.
The commerce clause thing is a separate issue. Wickard v. Filburn had nothing to do with the tenth amendment, as it is based on a (particularly broad) interpretation of one of those enumerated powers.
I am not a lawyer, this is not legal advice, you should hire a lawyer if you are somehow in a situation where this is directly relevant to you.
Might be obvious to most here, but the article should probably clarify that the version of the 10 Commandments being made public domain is not the famous Charlton Heston version but an earlier one.
Technology is one of the drivers of remakes. When movies first came along, a lot of them were remakes of written material (a book or play). Then when sound became available, a lot of silent films were remade as "talkies." Then came Technicolor, and you had an excuse to remake a B&W film in color. After a long period of incremental improvements in various areas, we got usable CGI, which gave you an excuse to remake an analog film (or "enhance" it, and that's in quotes because of George Lucas' fiddling about adding digital stuff to every shot seemingly for ADHD reasons). Speaking of Charlton Heston, Planet of the Apes went from guys wearing rubber ape masks in the 70s to a pretty successful modern-day POTA franchise that is almost completely CGI, with apes talking and using vivid facial expressions and such. Not sure it's "better" per se... it's almost a different art form, apples and oranges. Which is why I end up thinking a lot of remakes are justified, in that they're almost working in a different medium in some cases.
People have always told the same stories over and over, updating them with tweaks along the way. Most if not all of Shakespeare's works were "remakes" of older versions of the same tales. Operas, ballets, and religious music of the 18th, 19th, and 20th centuries retread the same source material over and over. The main difference now is that we've entrapped ourselves into a false idea that perpetual copyright is a cornerstone foundational right, not only for creators, but for their kids, grandkids, and great-grandkids.
For decades there's been a growing vein of economic and legal scholarship that goes something like:
1) Strong property rights are good: they make economic transactions efficient and promote investment
2) Copyrights are property rights
3) Strong copyrights are good: they make economic transactions efficient and promote investment
The scholarship is literally just that simple, and almost completely discounts or ignores all the obvious costs and caveats. This type of reductionism and equivocation is endemic to the modern economic and legal academies and doesn't show much sign of abating anytime soon.
But I think an important difference is that in classical literature and in Shakespeare the author does a lot to put his own spin on the story, including often substantially changing the plot (Ovid's Metamorphoses is notable for doing this... which also happens to mean we're not sure what the "real" version of myths that we only have in Ovid now are). Does every new Spider-Man film really have something new to say?
It seems like one of those evergreen topics that applies to every Hollywood Age. Many early Hollywood films were adaptations of books. The Golden and Silver Ages involved a lot of adaptations of plays and musicals. Greek and Biblical history/myths have always been huge recurring topics. Most of the Disney Princessess are centuries old fairy tale characters of one sort or another. As much as we can laugh at how dumb their attempt at making the Dark Universe happen this decade, Universal really did get their start by churning out as many famous monster movies as possible and then blowing early moviegoers' minds by having those monsters meet and team up; it was film making's original franchise.
I don't think anyone has done a full inventory, but I think overall the risk-to-reward equations for original screenplays versus adaptations and franchises has hardly ever shifted over the years. If anything, the larger numbers of "indie" studios, non-traditional "studios" in play (Amazon, Netflix, YouTube), and the increasing ability for everyone to access filmmaking by modern technology likely lead us to a place where we may actually be at the height of original entertainment in films, whether or not Hollywood is leading or following that trend.
I doubt that's right, because the average American went to the theater way more often (and things like double features were more common, and studios were able to compel theaters to take one movie if they wanted another) in the earlier days of film. Now the pressure is much greater to produce blockbusters (itself a pretty recent concept).
Less risk: people in the targeted demographic like this story, they already like these actors, they already watch this directors movies.
They will buy the movie, will buy the products placed in it, will buy the merchandise, will bring their children and allow them to be invested as consumers in the media's financial system under the suggestion of cultural input, ...
I have no idea how you can say that... just look at the original (business) ideas out of Hollywood in the last few decades:
- pretty much any popular movie got sequels (whether or not there was more story to tell was irrelevant... an innovation in itself!)
- which led to trilogies
- which led to series of trilogies
- then became never ending series
- which has morphed into endless reboots of never ending series
Aren't you looking forward to seeing the 14th Spiderman reboot in your lifetime? Revel in the fact that Hollywood has perfected the audiovisual version of Coca-Cola: no aftertaste... 10 minutes after the movie ends, you forget what you watched and are ready for the next installment/reboot!
It's ultimately harder to create a great, original story than it is to film one, which is why it's a shame that screenwriters get paid so little compared to actors and directors.
Very few movies made today, or in the past, are original.
And it's not just remakes of movies. If you look at the last century, probably 90% of the hit films were actually adaptations of books.
But it's not unique to Hollywood. At one time the same could be said of plays. Though these days, a lot of movies are being transformed into plays instead of books.
In the 1980s, at least, nine of the top ten films were original. Four of those were sequels, but all in recently created franchises. Only one of the top ten was adapted from other media.
Those original films were: ET, two Star Wars movies, three Indiana Jones movies, Ghostbusters, Beverly Hills Cop, and Back to the Future.
The two Star Wars movies were still sequels, even if the franchise was new in the 70s. Star Wars wore many of its pulp Hollywood adventure series and World War 2 movie influences on its sleeve.
The three Indiana Jones were two bankable directors' hobby project. In turn, they were heavily based on early Hollywood adventure serials and pulp adventure novels.
Ghostbusters was bankable comedians' hobby project.
Beverly Hills Cop was a "cheap" film in a bankable genre (cop film), that was easy to franchise if successful (which it was, and did).
I won't directly harp on BTTF that much, but some combination of all the above applies to it, too.
5 of those 9 all directly involved Spielberg, in one capacity or another, which is another way for Hollywood to avoid risk by betting on the non-riskiest "risk taker" they can find. (Given Lucas' relationship with Spielberg, you can argue that Star Wars also benefited indirectly from Spielberg's "golden touch" in the 80s, bringing the count to 7 of 9.)
But looking at the Top 10 isn't particularly fair in any decade. For every ET and Ghostbusters there were six of the seven Police Academy movies and seven James Bond films, for two easy 80s examples.
Beverly Hills Cop was pioneering, though. I can't think of any action-comedy buddy cops films that predate it (it came out before Lethal Weapon, the other film often cited as the first in the genre).
Sure, but as my point is that pioneering isn't mutually exclusive with "risk averse". Buddy cop films had a long history before it, so adding comedy had some risk, but not as much risk than if there hadn't been as much interest in buddy cop films elsewhere in the 70s and 80s.
That's fair enough, but I don't think what people are lamenting is some golden age when studio executives weren't primarily concerned with movies they thought they could make money from.
Sure, but it's that risk/reward pendulum that determines Hollywood's "original" output, and BHC here is a good reminder that what can be perceived to be very original to us the audience can still fit well known genres/forms that Hollywood studios may not perceive to be a risk.
It's also maybe an reminder that Hollywood can only bottle that Lightning every so often. "It's a standard buddy cop film, but with Eddie Murphy, so it's the first funny buddy cop film," only really works once.
"Bankability" is a variable in the risk-reward equation, certainly.
I think I was more trying to get a point across that most of those probably were perceived to be relatively "low risk" original or not.
If you compare apples to apples you could probably find an equal number of relatively bankable directors/stars making mostly original stuff.
Guillermo del Toro is a big one in my mind thinking about this decade; Paul Feig and Edgar Wright also come to mind as bankable directors. Between them you can probably point to plenty of original films that might stand toe to toe with ET or Ghostbusters.
Don't forget to take off any rose-colored glasses when comparing of course; there's always that nostalgic factor when comparing one's childhood favorites to today's output.
If there is a big difference between the Top 10 list in the 80s and the Top 10 list this decade so far might be that audiences rewarded the big experiments in ET and Ghostbusters a bit more fondly at the box office than any equivalents this decade, but mainstream favor is always the hardest part of that risk/reward equation for Hollywood.
Not to mention on top of that you have the market shifts of bigger international audiences, smaller domestic theater audiences (shifting to home theater setups), etc.
How do you even compare Okja, for instance? (That one is a bankability "hire", too, in that the director proved himself in adaptation and foreign market work.) One of the most original films in the last decade, and who knows what its equivalent box office numbers might be except maybe some formula of a Netflix accountant somewhere?
There's been a trend in all the mainstream entertainment divisions to avoid risks and maximise profitability. The result is bankable but bland and homogenised "content".
There used to be indie scenes in music and movies that would kickstart the careers of the next wave of creators. Ironically, making the tools affordable and accessible has killed that next wave, because success depends as much on access to mainstream distribution and monetisation as it does on creation - and there's far less money available to distribute, promote, and monetise non-mainstream projects than there used to be.
Not only is there no money in true indie originality now, there isn't even much chance of exposure.
The article just mention a bunch of stuff that will enter the public domain. Does anybody have a better list of significant works? I believe there must be a lot of nice music.
The descriptions are written by the producers, and explicitly donated to the public domain as part of the production.
Covers are interesting. The imprint has gone for a “classic oil painting” style as a general rule of thumb and those need to be PD as well of course. That’s trickier than it sounds in the US, as to be PD they need to have been published in a book in the US pre-1923. For example, the edition of Crime and Punishment I worked on has an Edvard Munch as cover art.[1] I managed to find that reprinted in a copy of “Scandinavian Art”, published in the US in 1922.[2] Unfortunately just looking at the PD tags on commons.wikimedia isn’t good enough as they rarely provide proof and anyone can edit them; the project could get into real copyright trouble without having proof of PD.
Dr. Martin Luther King wrote and delivered his famous “I Have a Dream” speech more than fifty years ago. When he obtained copyright protection on the speech in 1963... the copyright on the “I Have a Dream” speech will not expire until the end of 2058. Because the Estate of Martin Luther King, Jr., Inc. and its affili- ates have closely guarded the speech in a copyright enforcement and li- censing sense, the public seldom sees more than snippets of one of the most highly regarded speeches in history.
And there are many more examples like this. Copyright was supposed to foster creativity and the distribution of knowledge. Know it's used to stifle competition, and to protect corporate interests.
I don't think one can really blame the Estate of Martin Luther King for enforcing the rights given to them by law. I think instead of "closely guarding" the speech, it's just enforcement of their copyright.
More blame should be laid that copyright law in general has extended the time frame all at a time when receiving the compensation from the works happens faster than ever. And it has extended it to such a length, it increases the chances of losing works to missed archival for all but the most popular material.
They are under no obligation to give out something for free just because others think they should. Do we blame authors for not giving away their books for free?
Archiving under some strict prohibitions are possible, but it's sort of a narrow window which is difficult for e.g. abandoned commercial works.
> They are under no obligation to give out something for free just because others think they should
In the same vein, they are under no obligation to _not_ give it away from free. Their actions are purely a choice, free from obligation. That said, lack of obligation does not act as a shield from criticism. Quite the opposite.
Do we equally criticise the children of Frank Sinatra for holding and enforcing copyrights to his songs, what about Walt Disney, or the widow of Dr. Seuss. Why are the descendants of Martin Luther King singled out, but not those of other culturally popular works? Whose works do we get to morally appropriate and shame people for not giving away for free?
Personally, I might blame the descendants of Disney the most if they had significant voting shares in Disney Corp, but as to the rest I doubt played a key role in the expanding copyright to the degree it has today.
I think we can really blame Disney here as well, but the really terrible thing is that the 'benefits' are not even accruing to Walt's descendants, but to shareholders of the corp.
I personally think that children shouldn't have any rights, and ideally copyright would expire after a reasonable time (not even for a creator's full lifetime, and certainly not after their death). However, it seems more reasonable for those rights to be held by the creator's descendants rather than a publicly traded corporation.
> I don't think one can really blame the Estate of Martin Luther King for enforcing the rights given to them by law.
You can absolutely blame people for doing that. An action's legality and blameworthiness are completely separate things. Many legal things are blameworthy (e.g. talking in a movie theater, adultery, tricking people into eating items their religion forbids). The idea that you can't blame people for doing things they're allowed to do under the law seems to assume that everything bad should be illegal, which would result in a pretty draconian state of affairs.
> You may not remove, copy, alter, reproduce, modify, create derivative works of, republish, post, publicly perform, publicly display, broadcast, download, transmit, distribute, license or commercially exploit, in whole or in part, the Content or this Site, except as expressly permitted by these Terms, the functionality of the Site, or, if applicable, by the respective content owner as indicated in any end user license agreement, if any, that accompanies such Content, provided that you include without modification all copyright and other proprietary notices contained in the Content. [1]
>may be used in personal and educational setting //
No such Fair Use exemptions exist in a lot of countries. We have relatively Draconian Fair Dealing in UK, in which there is no general personal exemption nor an educational exemption.
Schools are supposed to have music licences if they have a TV licence because music played in a TV broadcast would otherwise amount to an illegal performance/distribution. It's beyond ridiculous.
Ripping a CD using iTunes is tortuous in the UK, for example. In theory Apple are contributory infringers but the absurd breadth of the copyright law isn't there to hold corporations to account ...
Presumably tortuous use of King's works would be prosecuted in the jurisdiction in which it is used.
Minor note, maybe you're just the victim of autocorrect: you want "tortious" (with an 'i'), not "tortuous". The latter is "pertaining to torture", not "to torts".
In their prior comment, the parent said "the public seldom sees more than snippets" of the speech, which obviously isn't true (see both my and icebraining's replies for many examples). Now the parent is criticizing the license but that doesn't seem to be stopping anyone from watching or reading the speech. What is really the point here?
No, the parent is correct. While it is possible to find the original, it is legally tricky to show it. Thus somebody who doesn't go out of their way probably will not see it.
Copyright is often so complicated. Fixed dates are easier than year of death + N years, because in some cases an author's death date isn't public. You end up with works which are technically public domain, but which can't be safely used because if you want to avoid any risk of being sued, you have to assume the worst case. Perhaps the author was young when it was created and lived to be 110.
Note also that the US 1923 rule applies to the date of publication: works that were created earlier may not have been published until much later. This typically happens with photographs.
Edit: and don't expect stock images sites to tell you when an image has fallen into the public domain. They will go on issuing licenses forever. The licenses are bogus, but there don't seem to be any legal repercussions.
This is excellent. Now I just hope they all get converted to text by project Gutenberg and then hopefully some mashing together with Mycroft [0] and finally I'll have Jeeves.
>When that expires, Steamboat Willie can be given away, sold, remixed, turned pornographic, or anything else.
Rule 34 indeed. I honestly wonder, in this age of memes and YouTube, if we will see a sudden spasm of creative remixing of the newly open content. Think of the movie Kung Pow but with much more 4Chan-like variety.
Since Mickey Mouse was first debuted in 1928, does this mean that Mickey Mouse will become public domain in 5 years if the copyright law doesn't change?
Mickey has been on the verge of entering the public domain for decades now. Every time it gets close Disney and other companies are successful in re-writing copyright law to whatever they want it to be. No, Mickey probably won't be in the public domain in 5 years.
No, but trademark protections are very limited compared to copyright protections. For instance, if you wanted to make a movie like League of Extraordinary Gentlemen but with cartoon characters, once Mickey Mouse's copyright has expired you would be free to use his character in the movie, you would just have to avoid using him in advertisements for the movie in a way that would mislead people into thinking the movie was affiliated with Disney.
> When that expires, Steamboat Willie can be given away, sold, remixed, turned pornographic, or anything else. (Mickey himself doesn’t lose protection as such, but his graphical appearance, his dialog, and any specific behavior in Steamboat Willie—his character traits—become likewise freely available. This was decided in a case involving Sherlock Holmes in 2014.)
And at the end :
> And in 2024, we might all ring in the new year whistling Steamboat Willie’s song.
Talking of Sherlock, this has been problematic in the past but people have come up with inventive ways to get around it. For example, Maurice Leblanc wrote a set of stories about a “gentleman-thief” named Arsène Lupin[1] (you may have seen a Miyazaki film of the same name starring the character’s grandson). The last story in the first compilation co-starred Sherlock Holmes, much to Conan Doyle’s consternation, and he threatened legal action if it happened again. Leblanc’s cunning workaround was to title his next collection of Lupin stories Arsène Lupin versus Herlock Sholmes[2] :)
I am not a lawyer, let alone an imaginary property specialist, however I do not believe that second point is technically true.
Trade marks are intended for consumer protection. As long as you made it abundantly clear (everywhere) that your work was NOT a Disney work, and that it was instead a distinctly branded other work which happened to include Mickey Mouse (even in a leading role), based off of the features of the public domain version of the character (and possibly mixing in elements obvious to contemporary authors in a generic sense), then it would PROBABLY be worth talking to an actual trademark/imaginary property lawyer to see if the idea is uniquely expressive enough to be a new work.
I'm not a lawyer either. You make a good argument. If anyone wants to try it, be prepared for a long, expensive court battle with many appeals. There are many other arguments and I don't think the law is clear enough.
No. The cartoon steamboat Willie should enter public domain. You should be able to create a character based solely on steamboat Willie but none of the other films. But you couldn't call him Mickey mouse was he is (and sighs be) protected by trademark
This seems like a good place to throw this out there and get some feedback. My proposal on how to fix copyright:
1. Everyone must register their copyright in a searchable database. Registration is free and good for 10 years.
2. At the end of 10 years, you must renew your copyright. If you have transferred ownership, you must submit the chain of custody.
Edit: New option 3a.
3. The cost of renewal will be 10% of the estimated value of the copyright to the rights holder for the next ten years.
3a. The cost of renewal will be 10% of what you made off of it in the last 10 years. If you made nothing you pay nothing. You can renew two times and pay nothing. After that you either have to commercialize or release the copyright. This fee will be on top of income taxes, but be enforced the same way, through audits similar to the IRS. This would obviate the need for 4a/b.
4a. To keep the rights holder honest, after they submit their estimated value, any other person may buy the copyright from them for 110% of the estimated value within 90 days.
4b. Another way to keep them honest instead is to make the rights holder submit tax forms to prove their estimate was valid, and pay a penalty if they were too far off.
5. If it's not in the database or the fee isn't paid, it's public domain.
6. Initial registrations for existing copyrights will be done on a rolling basis on the closest decennial anniversary of the initial copyright. The person registering must show proof that they currently own the copyright by demonstrating that they were the creator or they purchased the or inherited the rights from the creator.
7. You may extend your copyright for as long as you want, as long as you pay the fee.
I think this addresses most everyone's concerns.
- Disney gets to keep Mickey Mouse forever, as long as they keep making money from it.
- The public no longer has to wonder if a particular work is copyrighted or not, because if it's not in the database then it isn't copyrighted.
- Creators are still incentivized to create because they can hold a monopoly as long as it's valuable to them.
- If you go with option 4a, then it might actually make for even greater works. For example, Fox owns the rights to Star Wars Episode 4. But that alone is not nearly as valuable to them as it is to Disney, who could put it in box sets. So Fox is now incentivized to sell their copyright since it Disney could come in and buy it for 110% of what they claim it is worth to them.
This is a work in progress, and I'd love to know where I missed things.
The cost of renewal will be 10% of the estimated value of the copyright to the rights holder for the next ten years
This alone would force many things that are actively being developed into the PD, because people won't have the funds on hand. Unless I misunderstand your proposal.
EDIT:
And, the impact of that would be that richer companies would swoop in and get free work. Sounds bad. Real bad.
Good point. What if we switched it around to being 10% of anything you made in the previous 10 years. Renewal for in development would then be free. And then maybe put a limit on the number of free renewals. So either commercialize it or release it after some number of years.
Lookup "Hollywood accounting" to see how well that will go.
For example, from the Wikipedia page (https://en.wikipedia.org/wiki/Hollywood_accounting): According to Lucasfilm, Return of the Jedi, despite having earned $475 million at the box office against a budget of $32.5 million, "has never gone into profit"
Disney could renew the copyright on "Return of the Jedi" for pennies on the dollar.
I suppose you could set it up so things that are still under development and not being sold (and hence the creators can't have extracted any value) don't need copyright protection and are instead treated like trade secrets.
> 4a. To keep the rights holder honest, after they submit their estimated value, any other person may buy the copyright from them for 110% of the estimated value within 90 days.
So if my copyright is legitimately worth $1000 (because I'm not a big company, I just wrote some eBook that sells 100 copies a year) someone can steal it from me for $1100?
More subtle; if you are willing to pay $1,000 for the renewal, then a company can buy it from you for $11,000. If you only make $100/year on it, then a company can buy it from you for $1,100, which is more than you would make in the next ten years from holding the copyright. I think the multiplier should be a little higher, or potentially you should get the right of first refusal -- if someone says "I want to steal it from you for $1,100" you can then name your price instead, and as long as you are willing to pay 10% of that price you basically get to override the attempt.
Also note that the initial copyright grant is free in this proposal; so you get 10 years of monopoly on distribution.
> Also note that the initial copyright grant is free in this proposal; so you get 10 years of monopoly on distribution.
Good point.
> If you only make $100/year on it, then a company can buy it from you for $1,100, which is more than you would make in the next ten years from holding the copyright. I
Sometimes these things are more sentimental then monetary.
Also, the way you word that, essentially it is a 10% tax on copyrighted work. Though the point about it being a 10 year monopoly is a fair one.
But doesn't this basically mean that if you only have $1,000 in your pocket, anyone with $11,000 can outbid you for your creations? You will not be able to name a price you can't literally pay right away.
TV and Film industry would not like that at all. Average script to screen is 7-11 years (depending on whom you ask) and TV series are a model of geo locks with semi-perpetual licensing fees along with an added value for pushing new stuff (in packages with these, older, titles). That's the only way to make them profitable if they aren't hit series (most aren't). 10% of the estimated value where you can't make an estimate is ridiculous.
What if we switched it to being 10% of what you made in the last 10 years instead. And removed the purchasing copyright part, and instead kept it honest through auditing like tax returns?
The issue is with value. Here's just one example. Let's say you have a TV series from the 80's. Doesn't matter it's 80+ shows, it doesn't sell at all anymore. Value is, if you look at it that way - zero. However, you have new films which aren't all that hot, but TV networks and stations are interested to buy three year rights for their geography if you package that show (and several others) with it. How do you value that show then? As part of the package pricing (not gonna happen) or as zero value? It obviously has some value, but it's hard to price it. Especially with hardcore accounting at these companies.
Another example is development and development hell. Let's consider the same show. Its value is still zero on the books. It ain't sellin', yo! For years! However, there's a script and development for a movie based on it. Trouble is, it's been in development (money gathering, mostly) for the past seven or so years. Once the movie is made and has a venue run, maybe that old IP will be of some value again... or like in the case before, as a package or gratis with the movie. Who knows?
These are just trivial examples. TV business revolves around producing 'packages'. Be it a single show of 80+ shows or packages that offer the same or anything in between. It's easier to sell it that way, because time slots can then be populated during the season easily. No one wants to buy one of anything, unless it's Star Wars or anything of that calibre. By selling those packages to TV networks and stations, with rights anything between 1-5 years (one viewing + one re-run, or unlimited re-runs) and for their particular geographical location only, distributors and studios have a constant stream of revenue. They do various combinatorics with their portfolio in order to ensure constant stream. Without geo locks and without numbers (of shows), TV networks and stations won't buy, and they are A LOT better market than one or two providers like Netflix. That's also the reason why Netflix sucks outside of US and why they're moving towards their own production (Amazon also).
I think, and I may be wrong (but I am in that business), is first you have to break that revenue model. Once producers have another model to get revenue, then options will arise to get rid of stupidities around IP. One cannot look into other directions, like music business, since production costs are magnitudes higher and most TV and film stuff produced already calculate 10-20+ years of revenue down the stream. As it is now, once you produce 80+ of anything, it's guaranteed revenue (either for that or as an added bonus for something else) forever practically. How do you break that first? They will fight that aggressively.
Aside from all that, Lynda Obst talked about ( https://www.youtube.com/watch?v=t_oHW31jQfg ) how Netflix killed DVD market and how that cascaded into what we have now, considering quality and other stuff. Interesting interview, and all true, if you're interested in the problem space from TV and Film perspective.
If Netflix put a value on 'pretty much any piece of content' and they lack said content, that tells you something, right? It's not that value. If you were making deals for IP, then you very well know where and how these deals are made. Throwing away dozens, if not hundreds, of buyers for one or two and have them dictate the value is not that business, as evidenced by catalogue at Netflix. It's a dynamic system of sales with dozens of combinations and not even owners of IP can value them properly (apart from initial runs for certain movies).
I like this solution, especially 4a, since I'm a big fan of the Heinlein idea of taxes that represent an estimate of the expected value, with the market providing an enforcement mechanism. I think the multiplier needs to be larger, though, to make it possible to defend inconsequential copyrights. On the other hand, the first 10 years being free is probably enough that small-time content creators can't just be put out of business by Disney. Involuntary sale of the copyright is also problematic because voluntary sales often include things like artifacts of the creation of the work, and merchandising agreements have to be negotiated and transferred as well -- compelling companies to forfeit the work would be complicated by these factors.
We have to be careful, though, not to let the idea of a clever solution get in the way of defining the problem. What, fundamentally, is the societal benefit of expiring the copyright?
In my opinion, the main condition that a copyright holder has to satisfy is to make the work available at a reasonable price. Increasingly this is the problem, that copyright holders both make a work unavailable and continue to hold the copyright, preventing the access to the material in any form. I feel that this is the tradeoff that society makes in exchange for allowing the monopoly. Once the holder can no longer (or will no longer, or does no longer) distribute the material, then it should revert to the public domain, as the public interest is no longer served by that copyright.
The solution above lets holders keep copyright as long as they're making money off of it, but offers no societal benefit other than the money paid into the copyright renewal fund.
Sort of an aside, but I love how the headline of this article: "Hollywood Says It's Not Planning Another Copyright Extension Push" implies that Congress is basically powerless against Hollywood's whims (or money).
In the past they were. Congress loves celebrities as much as anyone. Play a doctors on TV and congress will ask you medical questions, and pass laws based on your "medical expertise". As a result when Hollywood asks congress listens more than they should.
However there is something far more important to Congress than celebrities or money: votes. Hollywood and congress knows that there are a significant number of voters who are not happy about copyright extensions and are watching. They know very well that if a copyright extension passes some of them will lose their job, and that is not something few are willing to risk.
I think that's a lot of tech bubble thinking. The majority of people vote along party lines. Even those who don't won't have "this person voted for copyright extension" on the top of their list of concerns.
Then when you back out to the primaries, how many primaries are going to be won because the incumbent voted for copyright extensions?
This is like the tech hysteria against Facebook, I'm not saying it wasn't warranted, but most people who do know the details just shrugged and kept posting cat videos....
The majority of people don't vote in primaries, they consider themselves independent.
I don't know if they vote alone party lines, but the fact that we have switched between democrat and republican presidents regularly is proof that enough people change their vote.
Even ignoring that, those who do vote parties lines and vote in primaries are also likely to be the ones doing volunteer work to get their guy elected. Make them mad and they will vote the party, but they won't do as much work and that can swing an election.
> The majority of people don't vote in primaries, they consider themselves independent.
“independent” voters show the same degree of partisan consistency as those identifying with a party.
> I don't know if they vote alone party lines, but the fact that we have switched between democrat and republican presidents regularly is proof that enough people change their vote.
It's more proof of the fact that the composition of the eligible electorate and which of them actually turn out to vote changes; the assumption that the same people are voting in every election so changed party outcomes are driven by voters flipping from one party to another is inaccurate.
The people who vote in the primaries are the "true believers". It doesn't matter how many vote in the primaries. When you win the primary depending you are narrowing your choices down to two people who realistically have a chance for winning.
The presidential election is skewed by the electoral college, congressional voting isn't.
> the fact that we have switched between democrat and republican presidents regularly is proof that enough people change their vote
Not really. Only half the eligible voters actually vote in presidential elections. Different voters come out to vote at different times in different states for different reasons, and some of those may switch their vote, but the majority vote along party lines as noted in the above articles.
The presidential elections are swung by having more ideologically extreme past presidents. Two terms of Clinton led to two terms of Bush led to two terms of Obama leads into two terms of Trump, and then we'll have two terms of Bernie or something equally extreme, like a transgender asexual black mexican jew. (And I just looked it up - there is a transgender queer black mexican rabbi in Chicago, but unfortunately you can't get elected in this country without being a proud Christian)
That's not why they're not fighting it. They're not fighting it because it takes millions of dollars to lobby and they aren't going to make millions of dollars back from films from the 1950s. Nobody will vote an incumbent congressman out of office for extending copyright.
"Included in the 2019 tranche: William Carlos Williams's The Great American Novel; Charlie Chaplain's The Pilgrim, and Cecil B DeMille's 10 Commandments."
Anyone eagerly awaiting any other big hits from yesteryear? Which ones?
They are just protecting their business, which is legit. It's not their fault that the flaws of the system where never really fixed since it's creation >150 years ago. Copyright was never ment to work for such long times, nor were there things like franchises and trademarks when it was created. It's time for something new, something that is more balanced for everyone. But so far nobody came up with good solutions.
While it might not be their fault those flaws were never fixed, it certainly is their fault that they exploited those flaws willingly and knowingly, to the detriment of the culture at large. Let's stop pretending that "they are just protecting their business" is a valid defense.
It seems to me like it kinda was their fault though:
"This law, also known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or (derisively) the Mickey Mouse Protection Act..."
https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
I wouldn't be so sure. We humans tend to agree about what's right and wrong. Most disagreements seem to stem from divergent factual beliefs. Take a libertarian and an anarchist for instance. One will typically say owning a factory is perfectly legit, the other is more likely to see it as immoral. But that's not because they have different morals. It's because they disagree about the factual consequences of owning a factory.
Resolve the factual disagreements, and most moral disputes go away.
There are good solutions and even easy ones. The simplest I've heard is just make folks pay to extend the copyright. The longer the extension the more expensive it is. Everything else falls into public domain. if Disney wants Mickey copyrighted for a hundred years, they can pay a million or ten million or whatever a year for it. If it's not worth it to them, then it should be in the public domain.
The solution that I've liked the best is aftera fairly short standard time period, 25 years perhaps, copyrights go to an annual renewal where the cost to renew goes up (substantially) over time. Maybe Year 26 only costs $50, but Year 100 costs $5,000,000.
Ultimately, law is about power.
Under the U.S. Constitution and the Bill of Rights, the federal government is one of limited powers, meaning (at least it theory) that the federal government cannot lawfully act beyond the scope of its enumerated powers as expressly set forth in the constitution.
So, consider how profound (again, I know it sounds quaint) is the responsibility of those elected officials to act responsibly in how they legislate about such enumerated powers.
Copyright is part of the legislative power defined in Article I of the constitution. Right there in Article I, Section 8 you can see it among the fewer than 20 items set forth for what the Congress is supposed to do: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . To borrow Money . . . To regulate Commerce . . . To establish a uniform Rule of Naturalization . . . To Coin Money . . . To provide for the punishment of Counterfeiting . . . To establish Post Offices . . . To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . To constitute Tribunals inferior to the supreme Court . . . To define and punish Piracies . . . To declare War . . . To raise and support Armies . . . To provide and maintain a Navy . . . And To make Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
I elided a few of the enumerated powers but the above sets forth the great majority of them.
Thus, while it might be and often is argued that copyright protection does not actually achieve the things ascribed to it (promoting creative works, protecting artists’ rights in their creative works, etc.), the fact is that our laws are profoundly to the contrary: the idea of promoting the progress of science and useful arts via copyright protection (and patent protection) is right there among the fundamentals defining the essence of the legislative power of the federal government. And, to be listed at all among such powers is in itself profound because the states that formed the United States and ultimately ratified the constitution as a compact among them were jealous not to give any more authority to the federal government than was absolutely necessary.
That authority was granted only on the biggest of issues and was checked and balanced by and among the legislative power (Article I), the executive power (Article II), and the judicial power (Article III).
And yet there it stands: the power to promote the progress of science and useful arts, "by securing for limited Times to Authors . . . the exclusive Right to their respective Writings". Right there among the powers to print money, to declare war, to lay and collect taxes, to establish federal courts, and the like.
And that is why it was so utterly reprehensible when in 1998 the Congress took existing copyright terms that were to have run for 75 years and retroactively made them 95 years. Yes, the 1923 copyrights were to have expired in 1998 and, here we are, 20 years later, grateful to have them come into the public domain at last.
And in what sense did this retroactive copyright extension serve to promote the progress of science and useful arts? Well, in no sense at all. It imposed new rules retroactively. It provided for absurdly long lengths of copyright protection. It had no bearing at all on the idea of promoting the arts. As such, it constituted nothing more than a crude exercise of naked power utterly divorced from the principled reason for having copyright protection at all.
I believe in the value of copyright protection. I think there are excellent arguments to be made in its favor. But the cause of copyright protection was not promoted by the 1998 extension. It was significantly set back because people looking at what that Congress did are rightly revolted by the cronyism that cynically gave special favors to a privileged few and, suffering from the pain thereby inflicted on those who were needlessly burdened by completely arbitrary restrictions on being able to use works that deserved to be in the public domain, concluded that copyright protection itself is a great evil burdening society for no good purpose.
To repeat, principled application of the law is vital to a free society. What happened with copyright in 1998 was a gross departure from that important truth. Let us hope it does not happen again as the 2018 expirations are about to occur.