Digital Comic Museum
General Category => Comic Related Discussion => Topic started by: Yoc on April 04, 2010, 12:47:37 AM
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Here's an interesting blog entry we here might enjoy on the principles of Copyright law I found on usenet.
Never an easy concept to understand.
http://tinyurl.com/ybeacpu (http://tinyurl.com/ybeacpu)
Feel free to comment or correct if you find anything.
-Yoc
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While I agree with the basic premise that copyright law needs reform, it's a weird approach to use the Kirby case to make it. I mean, if the New York Times Science Section ran a story on Venus, would there be outcry that there wasn't a single mention of Mars? The case has nothing to do with the public domain unless you're an agitator.
I might also take issue with the "corporate behemoth" crack at the end. Without Marvel's reach, I imagine the Fantastic Four would be as popular as other superhero properties Kirby did mostly on his own, like Fighting American, Captain Victory, and Silver Star.
And to take the author's own approach, nowhere in HIS article does he mention all the rise in Creative Commons material, licensed openly for anybody to use, regardless of copyright. (No, I wouldn't expect him to, which is partly my point above.) Does it matter that blonde-haired pseudo-Shakespearean Thor isn't public domain when (warning: I'm making this example up, don't ask me who) someone has published a Marvel-free Thor and given license to use it as long as credit has been given? Where it does matter, doesn't that make the author every bit the "copyright vampire" Marvel has been...?
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True enough John, but this post and his own were made to encourage people to investigate the concept and speak about it.
:)
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While I agree with the basic premise that copyright law needs reform, it's a weird approach to use the Kirby case to make it. I mean, if the New York Times Science Section ran a story on Venus, would there be outcry that there wasn't a single mention of Mars? The case has nothing to do with the public domain unless you're an agitator.
I might also take issue with the "corporate behemoth" crack at the end. Without Marvel's reach, I imagine the Fantastic Four would be as popular as other superhero properties Kirby did mostly on his own, like Fighting American, Captain Victory, and Silver Star.
And to take the author's own approach, nowhere in HIS article does he mention all the rise in Creative Commons material, licensed openly for anybody to use, regardless of copyright. (No, I wouldn't expect him to, which is partly my point above.) Does it matter that blonde-haired pseudo-Shakespearean Thor isn't public domain when (warning: I'm making this example up, don't ask me who) someone has published a Marvel-free Thor and given license to use it as long as credit has been given? Where it does matter, doesn't that make the author every bit the "copyright vampire" Marvel has been...?
The problem, as I see it, John,
is that it should be possible for someone else to create a blonde, thee and thou-spouting Thor who transforms into Donald Blake if they wanted to. And, just as Walt Disney's versions of Snow White and Cinderella and The Little Mermaid and Zorro and Treasure Island and 20,000 Leagues Under the Seas, and etc. etc. have become the new defacto "versions" of those stories, perhaps someone else could create one for Thor. It's been done several times (Why does Walt Simonson spring suddenly to mind?) under the corporate aegis of Marvel, but think of what might happen if Thor was in the Public Domain.
Disney mined the public domain and made it meaningful (and commercially viable) to a new audience. The point is that neither Marvel nor Disney were corporate behemoths when they started. And Marvel and Jack Kirby managed 100 issues of the FF without benefit of corporate stature or support. Now, the corporate heirs of both companies are trying to prevent using material they DID NOT CREATE from being mined by creatives as source material for modern works.
I have no belief that the heirs of either Kirby or Disney should still be profiting, any more than I think the heirs of Robert Louis Stevenson should have benefited from Disney's 1950 adaptation.
And I agree with you that the Kirby case has nothing to do with the Public Domain. It WAS a poor choice of examples. Also I agree as to Kirby's past achievements being less than memorable, and I said as much in the last issue of The Jack Kirby Collector (#54). But I state again that FF and Thor established themselves and succeeded without any "Corporate Behemoth" behind them - so I don't see the mention of same as being a "crack" but more of a salient point in the argument.
Your analogy of Venus and Mars doesn't hold up, I don't think. The analogy would be better stated as talking about Venus without mentioning Outer Space. Anything that is not copyrighted is public domain. Together they(copyrighted material and public domain material) comprise everything being talked about. So I believe that the mention of public domain is germane to any discussion of copyright. And the "Creative Commons" aspect may have implications in the future, but has little impact on the discussion at hand.
As always, thanks for an interesting post.
Peace, Jim (|:{>
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Thanks for your post as well Jim!
:)
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The problem, as I see it, John,
is that it should be possible for someone else to create a blonde, thee and thou-spouting Thor who transforms into Donald Blake if they wanted to. And, just as Walt Disney's versions of Snow White and Cinderella and The Little Mermaid and Zorro and Treasure Island and 20,000 Leagues Under the Seas, and etc. etc. have become the new defacto "versions" of those stories, perhaps someone else could create one for Thor. It's been done several times (Why does Walt Simonson spring suddenly to mind?) under the corporate aegis of Marvel, but think of what might happen if Thor was in the Public Domain.
You're not wrong at all. However, I also look at it as, well, Marvel isn't done with Thor, yet. They paid for it, and they should be allowed to get what use they can out of the idea.
Don't get me wrong, I'm no fan of the pseudo-libertarian, nicely-fascist "corporations are people too" concept. But even (especially?) today when the cost of entry for self-publication is almost nil, publishers serve an important service of getting ideas INTO currency so that they're worth protecting. I think Kirby's career speaks well to that.
(For what it's worth, I don't care how long the copyright terms are, though they're probably too long. I care that they last forever without any effort. If they needed to be renewed every ten years in perpetuity, I'd be happy, because the fact that someone's filing the paper means that they're aware of what they're sitting on, and I can find them if I need to license it. But without renewals, the world is basically forbidden to get fresh, analyzed copies of the later Jimmie Dale novels, just because the rights are stranded in some Disney vault from the time Walt had a great idea for a TV series.)
That's not to say that I wouldn't be thrilled to see what happens if the world plays around with a public domain Superman or Fantastic Four or Iron Man, of course. But I also see that wall as good for innovation, hopefully one day giving us the NEXT Superman or Fantastic Four or Iron Man to capture our imaginations. I realize it's unpopular to say, these days, but I still think there's plenty of room for innovation in the field that not being allowed to copy the Hulk shouldn't be all that painful.
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John C,
I agree with you regarding that there shouldn't be things locked away just because some one bought the rights years ago.
With todays publishing capabilities and the internet I think it should be possible to go to some site and get a copy of any out of print book, paying a fee depending on if I wanted a digital copy or was willing to pay more to get an actual paper version of it. If this means that some Mark Twain novel is not available for purchase there could be several companies offering the book or if it was some more recent author, just the publisher that owns the rights.
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(For what it's worth, I don't care how long the copyright terms are, though they're probably too long. I care that they last forever without any effort. If they needed to be renewed every ten years in perpetuity, I'd be happy, because the fact that someone's filing the paper means that they're aware of what they're sitting on, and I can find them if I need to license it. But without renewals, the world is basically forbidden to get fresh, analyzed copies of the later Jimmie Dale novels, just because the rights are stranded in some Disney vault from the time Walt had a great idea for a TV series.)
I see the major disadvantage to automatic Copyright renewals being ideas virtually locked-away well after the original publisher has disappeared. I think of the fly-by-night publishers of the 1980s & 90s who disappeared years ago without transferring the Copyrights to another company. Maybe they didn't have great concepts, but who knows if there is some creative individual out there who has great ideas for those characters. They have nobody to contact & legally can't touch those characters/concepts without the consent of a company that no longer exists for fear of being sued when someone claiming they own the Copyrights pops-up out of nowhere.
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BChat, I agree, and I'll go a step further. History is slipping away (except among pirates, basically). A book, as you say, might not be good, but what if it had the seeds to Byrne's Superman reboot, for example (Lancelot Strong comes to mind further back, as does Hero Alliance)? It'd be an important artifact for research, because it shows the flow of influence and ideas, but instead it would be something we're not allowed to share because someone (who presumably doesn't care about it, and may not even be aware of the ownership) has exclusive reprint rights and isn't exercising them.
BBBrown, I would agree if that didn't sort of violate the central principle in copyright, which is that the owner has the, well, right to make the decisions. I'd love that kind of system, but it means creators giving up the option to actively suppress their work for whatever reason.
(This was longer and better-reasoned a couple of nights ago, but the upgrade got in my way. Apologies for the haste.)
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The Pirates of Preservation exist. The obscure titles from the 80's and 90's are being scanned and placed on the internet. Illegal as it may be, it makes worries about most books disappearing forever not seem very warranted.
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Actually, the government is looking into creating a new class for intellectual properties called, "Orphaned Works." The gist is, if you don't know who (if anyone) rightfully owns a work, and you've made every effort to find out, you place some kind of symbol or something on the work in recognition of the fact that it is an "orphaned work." It means, that you may legally publish the work, until such time as a rightful owner of the work comes forward. It is protection against a lawsuit. I have been very interested in this, because my website (see my sig), is an effort to collect information on usable characters, and I'm thinking about adding characters from a 1980's action figure line (with mini comics) called "Eagle Force" which was produced by a company called MEGO. Mego is now completely disbanded and the rights to Eagle Force, as far as I know, were never sold to anyone. At least, nobody has used the characters in 30 years. They have been orphaned, and I would love to give them a new home. But I admit, I'm a little afraid to tell people they can use these characters, until I have contacted a known artist who was about 80 percent responsible for creating the characters. I imagine the same dilemma exists with fly-by-night comic companies. Many of those were creator owned, so their creations will be owned by them until well after their deaths. However, if there is evidence that a now defunct comic company hired the creators, and legally owned the character copyrights, then those works would be considered PD or at least, orphaned. As far as posting comics online, you can probably get away with posting any comic if it is not making anyone any money, regardless of the law. But, if you plan to make money off of something, you need to do your research.
I am actually in favor of companies like Marvel maintaining the copyright to works like Thor which they actively use. I just wish the corporate giants weren't so stingy about all their long forgotten characters. People say, "well, why not just invent new characters?" The invention of new characters is great, but my problem is that a lot of "new characters" are just rehashes of the old ones. There is something to be said about the familiarity of an old character, and demonstrating some pride in that character's heritage, while creating something new and amazing. You can take Dracula or King Arthur and run with it a million different ways. Let Marvel have their Thor if they use him. There are still plenty of specific characters, including alternate versions of Thor, which us creative types can use. The key is to give them the kind of recognition that Marvel's version has. The difference between Marvel and Kirby, isn't the characters, but the support given to the characters. With sites like mine, and enough people supporting them, we can make PD characters just as recognizable as anything in the Marvel stable. Some of the PD superheroes are even better than some of the ones Marvel has going for it. Let them have their crazy Shakespeare talking Thor, if we can generate a PD version with even more presence.
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Actually, the government is looking into creating a new class for intellectual properties called, "Orphaned Works."
You'll forgive my cynicism, but this is a "I'll believe it when I see it" situation. There's no motivation, these days, for the government to make material freely available, and plenty of motivation to give lawyers more opportunities to sue.
With organizations like SPA and RIAA throwing a tantrum any time they don't get what they want, I don't see this going any further than the Supreme Court overturning the DMCA or the "it costs a dollar every twenty-five years to keep copyrights current" bill.
I'd love to see it, but the odds of it happening...?
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Actually, the government is looking into creating a new class for intellectual properties called, "Orphaned Works." The gist is, if you don't know who (if anyone) rightfully owns a work, and you've made every effort to find out, you place some kind of symbol or something on the work in recognition of the fact that it is an "orphaned work." It means, that you may legally publish the work, until such time as a rightful owner of the work comes forward. It is protection against a lawsuit. I have been very interested in this, because my website (see my sig), is an effort to collect information on usable characters, and I'm thinking about adding characters from a 1980's action figure line (with mini comics) called "Eagle Force" which was produced by a company called MEGO. Mego is now completely disbanded and the rights to Eagle Force, as far as I know, were never sold to anyone. At least, nobody has used the characters in 30 years. They have been orphaned, and I would love to give them a new home.
And the new law also limits the penalties anyone has to pay for ripping YOU off, so the incentive to really look for you as the copyright holder is pretty much eliminated. So, if Wal=Mart decides to use your superhero in one of their ads, AND YOU CATCH THEM at it, they have to pay you the "reasonable rate" that you normally would charge with perhaps a small "penalty" fee that YOU wouldn't even notice.
Just remember that every time you are happy that other people are giving up their rights, that same law applies to YOUR rights, too. I wouldn't be so quick to lobby for any "orphaned works" bill. It's all dependent on who is defining "orphan" and which people/companies are behind the bill
(|:{>
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I agree Jim that the rights of the copyright holder should be protected. Which I think the idea of cheap renewal is good. If the company is not interested enough to renew then let be open to the world. If a company wants to renew they should be able to.
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Actually, the government is looking into creating a new class for intellectual properties called, "Orphaned Works." The gist is, if you don't know who (if anyone) rightfully owns a work, and you've made every effort to find out, you place some kind of symbol or something on the work in recognition of the fact that it is an "orphaned work." It means, that you may legally publish the work, until such time as a rightful owner of the work comes forward. It is protection against a lawsuit. I have been very interested in this, because my website (see my sig), is an effort to collect information on usable characters, and I'm thinking about adding characters from a 1980's action figure line (with mini comics) called "Eagle Force" which was produced by a company called MEGO. Mego is now completely disbanded and the rights to Eagle Force, as far as I know, were never sold to anyone. At least, nobody has used the characters in 30 years. They have been orphaned, and I would love to give them a new home.
And the new law also limits the penalties anyone has to pay for ripping YOU off, so the incentive to really look for you as the copyright holder is pretty much eliminated. So, if Wal=Mart decides to use your superhero in one of their ads, AND YOU CATCH THEM at it, they have to pay you the "reasonable rate" that you normally would charge with perhaps a small "penalty" fee that YOU wouldn't even notice.
From what I read about "Orphaned Works", the person who is infringing on a Copyright has to prove that they exhausted all avenues of research in determining who the Copyright owner is (EDIT: adding that they have to show they made an attempt to contact the owner as well if they found evidence of one). It wouldn't be enough to say "we couldn't find anyone to contact", they would have to prove that they did everything they could to figure-out WHO owned the work. In short, if Wal-Mart decided to steal something that they claimed falls into the "Orphaned Work" category, and then attempted to convince a court that they "tried" to contact someone when/if they get sued for it, the court will ask "show your work". Again, from what I understand, it's this "show your work" aspect of the "Orphaned Works" idea that is causing it to get hung-up in the law-making process, as some people are worried that it would open the door to "legal Copyright Infringement".
By the way, of what I've read about the subject, the main focus of the "Orphaned Works" idea isn't movies, comics or music, it's photographs. The owner of a picture may not have registered a Copyright, or the photo itself, if reproduced in a magazine, may not have clearly noted who the Copyright owner was.
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Boy, I didn't think this was all that new or controversial.
And the new law also limits the penalties anyone has to pay for ripping YOU off, so the incentive to really look for you as the copyright holder is pretty much eliminated. So, if Wal=Mart decides to use your superhero in one of their ads, AND YOU CATCH THEM at it, they have to pay you the "reasonable rate" that you normally would charge with perhaps a small "penalty" fee that YOU wouldn't even notice.
Just remember that every time you are happy that other people are giving up their rights, that same law applies to YOUR rights, too. I wouldn't be so quick to lobby for any "orphaned works" bill. It's all dependent on who is defining "orphan" and which people/companies are behind the bill
(|:{>
First up, the orphaned work law, as I understand it, is not that controversial, nor do I think the loopholes are all that big. The thing that's important is it's not just about the amount of effort that was put into finding the author, it's the very provable fact of whether the author could realistically be found by ANYONE. If it is possible, the work is not orphaned.
Let's say I post a photo on my website, someone else rips it and posts it on another site called "Pretty Photos" without attributing it to me. Then, WalMart finds my picture and uses it in their ad. Walmart doesn't have a valid claim that it doesn't know who the photo belongs to, just because they don't know my name. WalMart knows it got the photo from "Pretty Photos" and it should have received permission from "Pretty Photos." Pretty Photos is in violation of copyright in the first place for posting my photo without getting my permission, and it has no authority to grant permission to WalMart. If it did, it could even be considered fraud on behalf of Pretty Photos.
Now, let's say my photo went viral on the Internet and nobody knows where it came from. IT DOESN'T MATTER. If I have proof that it is, in fact, my photo, then EVERY website that posts my photo without getting my permission is in violation of my copyright. Just because nobody knows where it comes from doesn't mean they are off the hook....it just means they are lazy. There is still a trail back to me. It is the existence of the trail, not the effort that is made, which counts. So long as one person got the image from someone else, there is a trail. So, nobody can legitimately state that the work is orphaned, especially if I personally contact people that are trying to use my work.
If you are that concerned about people stealing your copyrighted materials, you should also take it upon yourself to register your work or create some kind of proof, as that kind of IP theft is possible regardless of any orphaned work law. I'd say that if you want to post share something with the world, and you don't want it to get out of hand, make sure your name is on it and that there are plenty of witnesses who know where the work came from, so confusion can be avoided. By now, any intelligent artist should be keenly aware of the fact that piracy is standard operating procedure for the Internet.
By the way, if WalMart was stupid enough to use a superhero that someone else created, without doing any due diligence, the orphaned work law would not hold up as a reasonable excuse, and you would likely win an amount equal to damages you suffered. Although, personally, I think I would owe WalMart for getting my character more exposure than I could ever give him.
There are legitimate cases of orphaned works and I support giving people access to them. It is ridiculous for useful works to rot in limbo because there is no known author, or because a company went out of business without transferring rights.
You make it sound like people who are using PD works, or orphaned works are stealing from someone. It's not stealing if nobody owns the thing you are using. In fact, using forgotten works should be considered an homage. If I found a rusty old bike, laying in the garbage, is it really wrong to dig it out and take a ride? Sure, someone made the bike, and someone used to own it. But those people are done with it, and it's just going to rot in a landfill, so why shouldn't I recycle it? Why shouldn't I take it to the park, for all the kids to ride? Is it really necessary for me to go buy a shiny new one, if I can polish up the old one and take care of it? Believe me, if someone was still using my characters after I was dead, I'd consider it an honor.
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Great post argosail and I like the bike analogy too.
:)
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Boy, I didn't think this was all that new or controversial.
And the new law also limits the penalties anyone has to pay for ripping YOU off, so the incentive to really look for you as the copyright holder is pretty much eliminated. So, if Wal=Mart decides to use your superhero in one of their ads, AND YOU CATCH THEM at it, they have to pay you the "reasonable rate" that you normally would charge with perhaps a small "penalty" fee that YOU wouldn't even notice.
Just remember that every time you are happy that other people are giving up their rights, that same law applies to YOUR rights, too. I wouldn't be so quick to lobby for any "orphaned works" bill. It's all dependent on who is defining "orphan" and which people/companies are behind the bill
(|:{>
First up, the orphaned work law, as I understand it, is not that controversial, nor do I think the loopholes are all that big. The thing that's important is it's not just about the amount of effort that was put into finding the author, it's the very provable fact of whether the author could realistically be found by ANYONE. If it is possible, the work is not orphaned.
It's hard to track down who owns the rights to a picture when it's not registered. Photographers usually don't register their work (due to the sheer volume of pictures they take), nor do they have to in order to have enjoy Copyright protection. One of the main issues raised about "Orphaned Works" that I've read about is that some photo shops actually follow the Copyright laws, and someone looking to have a picture copied or reproduced runs into a virtual brick wall because the photo shop won't "break the law" since they don't enjoy the idea of being sued should the Copyright owner learn about it.
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I definitely don't understand, Argosail. What you're describing is that, basically, you can use whatever you want until somebody sues you over it. If someone is around to sue, then they can be found.
But that's the existing situation. Copyright infringement isn't (yet) a criminal act. The owner must learn about the infringement, locate you, and decide to sue you. And the work needs to be registered--you can't get damages from a period during which the work wasn't registered unless it was published only very recently.
In other words, what you describe already is the law.
Do you have a reference (a bill number or the bill's author) so I can't find out what's what? It doesn't sound like an EFF thing, for example. As Jim suggests, it actually sounds more like something for big business to use things posted semi-anonymously to the Internet without repercussions.
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You should read Brad Holland's take on the law, argosail.
http://www.sellyourtvconceptnow.com/orphan.html (http://www.sellyourtvconceptnow.com/orphan.html)
My point about WalMart was not that they would actually do something like that, or that they would be able to get away with it. My statement was that the penalties would be insufficient to induce them to even bother to search more than cursorily. And the rewards to you, as the damaged party would not be subject to a lawsuit and jury but be set by law at your usual rates.
I'm curious when you say "If I have proof that it is, in fact, my photo..." just what anyone can offer (other than registration) as that proof? And is ANYONE going to make the effort to register every single thing that they do?
Everything you say about legitimate orphan works is perfectly true - and I agree 100% with your stance. I've been saying so for years. This law makes stealing from works that are NOT orphaned much more possible and much less financially risky.
There has been a great column in Photoshop User magazine on the benefits of registering your works with the copyright office, but it DOES cost money and it DOES take time. So, yeah, I certainly agree that registration is good and that orphan works should be available to modern creators, but you're missing my point. It's the definition of "orphan works" in this law that I find disturbing - and so do a LOT of other creative types.
as always, the devil's in the details.
(|:{>
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I definitely don't understand, Argosail. What you're describing is that, basically, you can use whatever you want until somebody sues you over it. If someone is around to sue, then they can be found.
But that's the existing situation. Copyright infringement isn't (yet) a criminal act. The owner must learn about the infringement, locate you, and decide to sue you. And the work needs to be registered--you can't get damages from a period during which the work wasn't registered unless it was published only very recently.
In other words, what you describe already is the law.
Right. That's my point. I think that the concerns people are expressing about an orphaned works law, are things you should already be concerned about with the current state of affairs.
It's hard to track down who owns the rights to a picture when it's not registered. Photographers usually don't register their work (due to the sheer volume of pictures they take), nor do they have to in order to have enjoy Copyright protection. One of the main issues raised about "Orphaned Works" that I've read about is that some photo shops actually follow the Copyright laws, and someone looking to have a picture copied or reproduced runs into a virtual brick wall because the photo shop won't "break the law" since they don't enjoy the idea of being sued should the Copyright owner learn about it.
It may be hard to track down the author of an unregistered work, but it is not impossible and you are still legally obligated to do so. Regardless of any "orphaned works" bill, it is illegal to reproduce copyrighted work, and yes, even now, some print shops will not print materials if they suspect that you don't own the rights to them (like a closeup of Sandra Bullock accepting her academy award). That is based on general copyright law, and I don't think it has anything to do with orphaned works. I do think there are more ways to prove you are the creator of a work than official registration, though I'm not sure how solid each of those means would be in court. That's why I stated:
If you are that concerned about people stealing your copyrighted materials, you should also take it upon yourself to register your work or create some kind of proof, as that kind of IP theft is possible regardless of any orphaned work law.
JVJ,
Let me be honest here, I do not know the specifics of the current legislation being worked on. What I do know, is that there does need to be SOME KIND of orphaned works bill that frees up legitimate orphaned works. If the current proposal only requires a company to "make an effort" to find or contact the author, then that is obviously ridiculous and a breach of our rights. But if they can be held accountable for not exhausting the possible options, then I think the law is quite reasonable and important. I think that if you don't register your work and want to rely on the honor system, you shouldn't be surprised if someone tries to get away with something. Anyway, even if the current congressional proposal in unsatisfactory, work should continue towards a reasonable solution, so that good work doesn't end up in the intellectual landfill. I think there are plenty of reasonable conditions which could be used to determine a legitimate orphan from a work that's been kidnapped.
One thing I find funny is that everyone seems to think that corporate America is the driving force behind the desire to limit copyright protections. Actually, quite the opposite is true. The concept of copyright is to offer exclusivity, mainly for financial gain. Therefore, strong and lasting copyright protections are much more favorable to corporate entities. It allows them to buy up someone else's creativity and then block off access to that creative "property." Copyright laws LIMIT an artist's freedom. It is only favorable to an artist who can actually make some money off their own creations, and form their own corporation. But there are blessed few artists in the entire world who have actually benefited from copyright laws. Maybe if you are J.K. Rowling, or Todd McFarlane, then copyright laws are working for you and your new corporation. But the rest of us really don't gain much from copyright. We might make some modest amount of money for our art within our lifetime, and for that I support reasonable protections. But most of us won't make much of anything for our work and drawing a familiar mouse with round ears and red pants, that people would want to buy from us, has been off limits for nearly a century. Eternal exclusivity. That is the corporate way. The big wigs at Marvel had nothing to do with creating any artistic representation of Spider-Man, but they reap the profits of anything even remotely associated with that work.
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I think it's all been scrapped, argo,
The 2008 bill failed. According to that stellar authority, Wikipedia,
"A petition authored by conceptual artist Steve Lehman helped influence Members of Congress (MOC) and in a startling turn around, legal scholar Larry Lessig signed the petition. His declaring the bill unfair wilted support of the legislation in legal circles. The House and the Senate never agreed on a final version of the bill, which thus never reached a vote in the House of Representatives and was killed. Most Americans were unaware of the proposal.
You can read the entire text of the proposed legislation here:
http://www.govtrack.us/congress/billtext.xpd?bill=s110-2913 (http://www.govtrack.us/congress/billtext.xpd?bill=s110-2913)
One of the provisions was that damages be limited to "reasonable compensation", which was defined as:
(3) REASONABLE COMPENSATION- The term ‘reasonable compensation’ means, with respect to a claim of infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.
(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the owner of the exclusive right under the infringed copyright for the use of the infringed work.
Lots of little details like that were scary. If you can't even get your attorney fees back from the infringer, how likely are you to sue for infringement in the first place.
I'm glad it didn't pass, but hopefully any new version will be more "artist-friendly."
(|:{>
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I favor creator rights but also favor registration. How else can one reasonably locate a copyright holder?
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Yeah, narf,
but there's no way anyone can make registration retroactive and we still have to deal with ALL the unregistered stuff that's out there.
Sadly, with the new laws that are in place, probably NOTHING will ever fall into the public domain in your or my life time. It's either PD now or not, and in the case of the orphaned works, we'll probably never know which.
It is a puzzlement.
(|:{>
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One of the provisions was that damages be limited to "reasonable compensation", which was defined as:
(3) REASONABLE COMPENSATION- The term ‘reasonable compensation’ means, with respect to a claim of infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.
(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the owner of the exclusive right under the infringed copyright for the use of the infringed work.
Lots of little details like that were scary. If you can't even get your attorney fees back from the infringer, how likely are you to sue for infringement in the first place.
As I understand it, what that ("Reasonable Compensation" & "General Rule") is saying is that the Owner could have sued for an amount equal to what they would have (or might have) received had the Infringer legally obtained the right to use the Copyrighted material. Keep in mind that this would have (had the law passed) depended on the Infringer's ability to prove that they did everything they could to determine the identity of & attempted to contact the actual Copyright Owner.
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Right. The law is saying that, if the true copyright owner catches you, you're only obligated to retroactively license the work from them, nothing more. And they must sue to get that.
(This is why it's pro-big-business, incidentally: By the definitions provided, it basically says that whoever's biggest wins. If you infringe on DC, they can sue you for lost revenue of arbitrarily large size. If they infringe on you, they pay "reasonable compensation." And you can't collect legal fees if they show evidence that "they tried really hard.")
Having read the bills, I can't help but notice that it just codifies the existing (insufficient) system. In fact, it never orphans the damned work! If you use the work successfully without getting sued, there's no reason to expect that I can't be sued for doing exactly the same thing.
The right way (if nobody minds me crossing the streams) is simply to revoke a single line in the 1976 Act. It says that copyright is never lost by failure to comply with the Copyright Office. Remove it, and we have a process: I want to print and continue a webcomic that hasn't been updated in years, let's say. I notice there's no registration or copies placed on file at the Library of Congress, so I petition to have them demand it happen (which I believe can happen now). If the owner doesn't comply with the request, the copyright is void.
That doesn't introduce any anti-Berne "formal requirement," doesn't create a burden on the artist or owner, and creates a clear path for declaring the work orphaned and in the public domain. Too simple, though, when the entire system runs on lobbyists.
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Yes, indeed, John,
VERY slanted towards the big guns and to the detriment of the "starving artists".
Sadly, your suggestion for solving the problem won't ever happen - no lawyers = no lawyer fees. And after all, laws are made by lawyers, for lawyers, not as logical solutions to real life problems.
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And after all, laws are made by lawyers, for lawyers, not as logical solutions to real life problems.
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Which I have always considered a huge conflict of interest. As a teacher I can not be on the school board but lawyers can make laws to keep lawyers high paid
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Sadly, your suggestion for solving the problem won't ever happen - no lawyers = no lawyer fees. And after all, laws are made by lawyers, for lawyers, not as logical solutions to real life problems.
True, it errs on the Shakespearean ("kill all the lawyers," and so forth), but I did throw them the bone of the petition. I'd certainly hire a lawyer to file it and make sure everything checks out.
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Were copyrights renewed on Pines Dinky Duck comics? Dinky was from CBS
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Were copyrights renewed on Pines Dinky Duck comics? Dinky was from CBS
I see a bunch of renewals (thankfully, it's post-1950, so I can search the database instead of guessing at years!) for some Dinky Duck periodicals from 1951 through 1958, so while I couldn't say for sure, it's a pretty good bet.
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Thanks my Dinky will have to stay unscanned
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Right. This is a family show, after all...
Meanwhile, getting back to the original topic, for those who care. I took my questions and found an contact page for the folks at the Library of Congress. Good news is they got back to me quickly. Bad news is they decided simple factual questions ("where would I find a list of works whose deposit was demanded?") were "too complex" for e-mail, and directed me to their phone number.
That, admittedly, weirds me out. "This might be too complicated to type out whenever we have free time, because you're not a priority, so let's get together on the phone so that we can dedicate a resource to answering your questions live when he or she could be doing normal work" doesn't quite follow for me...
Even so, I'll give it a shot during the week and see what I can squeeze out of them with regard to the deposit requirements.
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Ha Ha
BTW remember when dealing with any government agency justify their job is their top priority. If they are needed to talk to you for hours on the phone they must be essential employees.
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Granted, but I had also assumed that basic human laziness, coupled with the ability to say "I have a taxpayer question to research" whenever they want, would make e-mail more palatable. Plus, I'm used to government agencies just wanting you to go away as quickly as possible...
Anyway, if I get a chance to call, I'll report back whatever I learn.