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Public Domain Burden of Proof

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Roygbiv666:
Let's say I publish a comic using characters that I believe to be public domain (based on a lazy search of PDSH and LOC First Renewals, etc.).

Then someone tries to "cease and desist" or sue me, claiming they are the copyright holder.

Presumbably, the burden of proof is on the claimant.

Is that me or them? I cannot produce a document saying such and such is PD, but they can produce a document saying they have a copyright (especially if it's registered).

John C - thoughts?

bchat:

--- Quote from: Roygbiv666 on August 19, 2013, 08:42:39 AM ---Let's say I publish a comic using characters that I believe to be public domain (based on a lazy search of PDSH and LOC First Renewals, etc.).

Then someone tries to "cease and desist" or sue me, claiming they are the copyright holder.

Presumbably, the burden of proof is on the claimant.

Is that me or them? I cannot produce a document saying such and such is PD, but they can produce a document saying they have a copyright (especially if it's registered).

John C - thoughts?

--- End quote ---

I'm not John C, but here's my opinion:  You have to prove that your comic was based off of Public Domain material and not the copyrighted works of another.  DC Comics (for example) can provide proof that they have a Copyright for a version of the character Cat-Man from the 1960s.  A solid defense would start with being able to show anyone that your version of Cat-Man was based off of something that predates DC's copyright.  This would be best accomplished by physically having a copy of the Public Domain book, along with records from the Copyright Office showing the book's original registration and possible "evidence" (i.e. lack of renewal) regarding the book's Public Domain status.

John C:
My personal sense of things (not legal advice, etc.) is that yes, the burden of proof is on the accuser, in theory, but in practice, nobody has an obligation to provide proof of anything until the party is presenting evidence in court.

It's said that's why Microsoft gets more money from Android phone sales than Windows phone sales.  They apparently send a letter claiming that the manufacturer infringes on "as many as" some number of patents, and they'll go to court to reveal which patents unless the manufacturer agrees to a royalty scheme.

http://www.asymco.com/2011/05/27/microsoft-has-received-five-times-more-income-from-android-than-from-windows-phone/

Patent cases easily run into the millions of dollars and can be stretched pretty much as long as the judge.  Plus, it's a crap-shoot as to whether the judge can even spell computer, let alone read a software patent and understand whether it applies in very minor cases.  So paying the royalties can be the easier choice.

In copyright, even the boring "you downloaded stuff without paying for it" sense, there's this newer variation:

https://www.eff.org/deeplinks/2013/07/eff-calls-court-sanctions-copyright-trolls-public-humiliation-tactic

No evidence even of the download, just the assertion and threat that the evidence will be a significant embarrassment when presented.  Judges are getting tired of what amounts to extortion, but they only have authority over cases that have been brought to them and you still need to be before a judge who gets it.

Also, keep in mind that there's very minimal case law on copyrights on "characters," and what's there isn't encouraging.  The Arthur Conan Doyle estate is usually successful in convincing courts their copyrights on Holmes and Watson are absolute, for example, whereas any sensible interpretation would say that a work derived off the earliest stories is legitimate.

http://free-sherlock.com/

If it was me, and didn't want to involve a lawyer, I'd probably try to politely outline the sources I've used (for writing, not copyright research) and ask if they have renewal numbers that contradict your conclusion.  I'd have to guess that (with rare exceptions like the late John Carbonaro) most Cease and Desist letters are going to be generated by someone who's just overzealous and expecting some bitter, argumentative jerk knowingly doing Bad Things, rather than extorting a settlement.  Being curious and polite should defuse it to the point where it's a discussion and not a shakedown.  Nobody wants to sue on the wrong side of an infringement case, since the loser pays the winner's legal fees.

My understanding gets far more limited past that point, but I believe the defense is to show the paper trail as best as it can be assembled, that the original copyright is or is not valid, and the renewals should be on one of these pages or queries and doesn't.  A search of the Copyright Office files turns up nothing, as documented by a specialist who signed off on it.  Wherever you stop, obviously.

The amount of work put in wouldn't affect the verdict, but should affect the fine, since it's unfair to make someone pay much over a renewal that it'd take thousands of dollars (either legal fees or hotel charges) to find.

Roygbiv666:
Would there be any value in a "good faith" defense, i.e. I checked this appearance of Character X, checked the Copyright Office listings for renewals, found no renewal listed, therefore I concluded the work was PD?

If I flip it around and I published Captain Underpants #1 and someone else later published The Adventures of Captain Underpants, I could very readily say in court - I am the (ideally registered) copyright holder of Captain Underpants #1, he ripped me off, etc. But the onus would be on me to say how I have a claim on it (i.e. my name on some paperwork or credited in the work as creator and copyright holder). It seems stupid to say "well prove that I don't have ownership" to the defendant.


--- Quote from: John C on August 19, 2013, 04:07:08 PM ---If it was me, and didn't want to involve a lawyer, I'd probably try to politely outline the sources I've used (for writing, not copyright research) and ask if they have renewal numbers that contradict your conclusion.  I'd have to guess that (with rare exceptions like the late John Carbonaro) most Cease and Desist letters are going to be generated by someone who's just overzealous and expecting some bitter, argumentative jerk knowingly doing Bad Things, rather than extorting a settlement.  Being curious and polite should defuse it to the point where it's a discussion and not a shakedown.  Nobody wants to sue on the wrong side of an infringement case, since the loser pays the winner's legal fees.

My understanding gets far more limited past that point, but I believe the defense is to show the paper trail as best as it can be assembled, that the original copyright is or is not valid, and the renewals should be on one of these pages or queries and doesn't.  A search of the Copyright Office files turns up nothing, as documented by a specialist who signed off on it.  Wherever you stop, obviously.

The amount of work put in wouldn't affect the verdict, but should affect the fine, since it's unfair to make someone pay much over a renewal that it'd take thousands of dollars (either legal fees or hotel charges) to find.

--- End quote ---

narfstar:
The Cat-Man example has more to do with Trademark than copyright. The original Cat-Man is clearly PD. The only think DC could do (not legal advice) is to not allow Cat-Man to be the main selling point of the cover or advertisement.

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