General Category > General Discussion
Public Domain Burden of Proof
Roygbiv666:
Presumably one could not use the name "Cat-Man" on the cover, but could use the image of the PD Cat-Man. Similar to using the Golden Age Daredevil on a cover, but either not using the name or changing it - to Death Defying 'Devil, or RedDevil, or DoubleDare, etc.
Also, I just noticed this monkey icon: :(|(
--- Quote from: narfstar on August 20, 2013, 04:58:50 AM ---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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John C:
Maybe it's just trademark, but there's more potential for a lawsuit, since the two Cat-Man characters look so similar. Accidentally take a step too far in the wrong direction, and the issue is now Substantial Similarity. That is, even if your elements from exclusively public domain sources start to ape something under copyright (say, Fawcett's Diamond Jack learns he's part of the Diamond Jack Platoon, with Diamond Jacks from every Stellar Precinct as set forth by the Commissioners of All Space), there's gonna be some 'splainins to do.
As another example, figure that using random Quality characters on a modern superhero team is almost certainly OK, as long as there's no chance someone will assume your book is published by DC (which is what trademark's all about). If that team happens to be Uncle Sam, Doll Man, Black Condor, the Ray, Phantom Lady, and sometimes Firebrand, you're probably right on the border, even though you're not taking anybody else's copyrighted idea--neither the characters nor a roster can be protected. If the early Star Trek episodes are in fact public domain (it's a surprisingly close call that needs a lot of definitions hammered out), and you bring these Quality characters into action in the timeline where Edith Keeler's survival allows the Nazis to conquer the world, you're probably living dangerously close to the old Freedom Fighters series, even though you've authenticated every element as coming from a public domain source and, depending on the judge, even if you could somehow prove you knew nothing of DC's history with the characters.
As for good faith, a judge could use it to wipe out the fines (which is what I was getting at, in terms of keeping track of the research and going as deep as possible), but it's not going to get the case thrown out, and a malicious plaintiff (the real danger, in my eyes--big companies probably play straight) can still drag the suit out until you settle or run out of money. Generally, being unable to continue the case is a loss, as far as I know. In the end, it's an "ignorance is no excuse for breaking the law" kind of situation.
Overall, though, the fact that there's any documented proof of copyright protection, even if the only copy is in the hands of the owner you couldn't find, you still didn't do "enough" work. The assumption, now that copyright has become about "rewarding the artist," is that you're supposed to wait for permission from the artist's representation. (Don't feel bad, they want the right of refusal on technology, too.)
Roygbiv666:
Wait - what?
Everything in "Star Trek" is after 1963, which doesn't require a renewal. Isn't it?
--- Quote from: John C on August 20, 2013, 04:36:59 PM ---If the early Star Trek episodes are in fact public domain (it's a surprisingly close call that needs a lot of definitions hammered out)
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John C:
Sorry, I thought that was common knowledge. Yes, renewals are irrelevant if it was published with a notice. But definitions like "publish" are a little fluid, when it comes to television.
If "publish" means something obvious like "make available to the general public," then my understanding (I'm too young to have seen it by nearly a decade) is that the first season or so aired with no copyright notice and the episodes were put into syndication (where the film is rented to any organization who wants it for unlimited times, which could arguably be "offered for sale") with no notices.
If you watch the episodes at StarTrek.com, they don't end with a copyright notice, and the versions on Netflix (restored and enhanced) have very modern CBS animations for copyright.
The way I heard the story (which at least makes some sense), pirate Laserdisc collections sent Paramount to court arguing that none of the foregoing constituted "publication," because they never let the syndication packages out of their sight, so it couldn't have been a "sale"...even though they never collected them back or even confirmed who was renting, which is why so many fans have 8mm copies of episodes and where all those pirate editions got sourced in the first place.
So, it's not a terribly thorough legal analysis, but the upshot seems to be that they have copyrights by fiat (not the car company), but those copyrights aren't particularly legitimate (since it assumes that the viewing audience doesn't matter as a customer) and potentially not stable in the face of a modern legal threat, seeing as how they weren't established until 1978, twelve years after millions of people had seen the episodes and they were in physical possession of thousands.
The folks at Desilu were apparently fairly lazy with copyright notices at the time. It's generally accepted that there are bunches of public domain episodes of The Lucy Show, for example, and rumors that a huge chunk of Mission: Impossible--which came later and ran longer--might be in the same boat.
Mind you, I don't know how anybody would be able to use any part of the series without tripping over some copyright or other. It's possible that any number of design, script, or other content elements are protected by someone else's copyright, after all. The Courage and Roddenberry estates famously own the theme music, Roddenberry because he secretly wrote half-assed lyrics before submitting to the Library of Congress...
bchat:
--- Quote from: John C on August 21, 2013, 04:36:56 AM ---Sorry, I thought that was common knowledge.
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Interesting, and something I had never heard before (Star Trek episodes possibly being Public Domain). Learn something new every day!
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