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 The Screwy Public Domain (Wizard of OZ)

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kevinryanvt



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PostSubject: The Screwy Public Domain (Wizard of OZ)   Mon Jul 18, 2011 9:15 am

Use of public domain characters, whether from comic books or not, can indeed be tricky. here’s a brand new case, Warner Brothers versus X One X, which regards a company using publicity stills, specifically from MGM’s the Wizard of Oz, Tom & Jerry and Gone with the Wind, to create new products, such as action figures, snow globes and T-Shirts. Here’s the rub:

1. The appeals court ruled that the publicity stills WERE public domain, and in and of themselves, could be used however the defendant wanted.

2. The court went on to point out the example that, in the case of Amos and Andy, public domain radio scripts could be used to make further stories, any elements of stories that were created after 1948, copyrighted by CBS, were protected in and of themselves, and could not be used…..makes sense.

And……(sigh)….

3. Putting a PD publicity photo of Judy Garland as Dorothy on a T-Shirt is ok, putting the phrase “There’s no place like home”, which is from the PD book, is also ok, but putting both on the same T-Shirt somehow “evokes” the MGM movie, and is a copyright violation. One prominent IP attorney, Aaron Moss, said this decision makes determining PD quite murky. Another IP lawyer, Barry Werbin, said that this case is “ripe for appeal”.


None of this seems to take into account the US Supreme Court decision “Dastar v. Twentieth Century”, which specifically says that in order to use PD works, one need “not search for the source of the Nile and all its tributaries." The Appeals Court can't overturn the USSC, can they? So, beats me as to what impact this has, but it certainly shows that public domain is sometimes much more mud than concrete.

-K

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020110705129.xml&docbase=CSLWAR3-2007-CURR


Last edited by kevinryanvt on Mon Jul 18, 2011 9:19 am; edited 1 time in total (Reason for editing : couple of quick proofreads later....)
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Transmooky

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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Tue Jul 19, 2011 2:45 pm

Just when I think I've got my head round the use of public domain charcaters something like this happens.

I'm going to stick to little used characters from now on and hopefully the 'BIG BOYS' won't try and sue the arse off me! Smile
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argosail

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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Tue Jul 19, 2011 6:44 pm

Actually, this does make sense. The two elements may be public domain individually, but the combination of elements is clearly derivative of a copyrighted work. The photo may be public domain, but nothing about it inherantly evokes the line from the book except the copyrighted movie, so it's clearly not coincidental.

I think the comment in the Dastar case is simply pointing out that someone shouldn't be held liable if there is no way to track down, contact and recieve permission from every potentially interested contributor to a work. In this case, it wasn't as if it were a mystery who made the movie or who needed to be contacted. The shirt designers took a gamble with their interpretation of the law and the judge didn't agree with that interpretation.

Transmooky, I recommend erring on the side of caution, but don't give up. You just have to be smart and not use ideas that are under copyright. It is a good idea to know exactly what elements are copyrighted, so you can avoid them. If you stick to material that you know is PD you'll be fine.

There are a lot of gray areas that can go either way with a judge's ruling. My advice is just to stay out of those gray areas until there is a solid precedent. But if you do your homework on an IP, you'll find plenty of room to swim before you reach the muddy water.
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kevinryanvt



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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Wed Jul 20, 2011 1:18 am


I’m going to take one issue with your response Argosail, if I may, and that is to remind you that copyright does NOT protect IDEAS, but rather the EXPRESSION of those ideas.

I’ve been thinking about this case a lot over the last few days, just the idea that what copyright IS, essentially, is a combination, unusually, of several public domain elements, into something which is a “unique expression”. For instance:

1. There is certainly a “batman” in baseball…and there are families named Batman. PD
2. Bruce Wayne is named for Robert the Bruce and Anthony Wayne, both PD.
3. Commissioner Gordan is named for the pulp era character James “Wildcat” Gordon, a police commissioner, PD.
4. Gotham City, as a name, was coined by Washington Irving and means “City of Fools”. PD

But, the story of Bruce Wayne, the Batman, living in Gotham City and assisting Commissioner James Gordon, under copyright.

However, that being said, I disagree with the panel of judges in this case. The publicity stills came out BEFORE the movie, and without notice, which is what makes them PD. The “No place like home” phrase comes from the clearly PD book. So, when the film itself combines the image of Judy Garland with the phrase “No place”, that combination is not an original and unique expression of the film, but rather derived from the photo and the book. Now, the photo was specifically designed based on the then unreleased film, but the photo has the “lead”, in terms of publication. Oddly enough, the t-shirt itself might be the only unique expression in the case, and, the uniqueness lies with the defendant, not MGM.

The problem here is that the lead judge in the case says that the violation comes from the idea that the combination “evokes” the film. In fact, the film evokes the other PD elements, the judge has it the wrong way round. Copyright protection does not evolve from the “Iconic” nature of the film, but rather the work of the creators and the claims they make (or lack thereof in this case). What the judge did here, by referencing the “Iconic” nature of the film and the “evocation” created by the combined PD elements, is to give MGM an unregistered trademark. This speaks directly to the Dastar Case, which says, you can’t do exactly what the judge just did.

-K
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Wed Jul 20, 2011 9:48 pm

kevinryanvt wrote:

I’m going to take one issue with your response Argosail, if I may, and that is to remind you that copyright does NOT protect IDEAS, but rather the EXPRESSION of those ideas. ...

The problem here is that the lead judge in the case says that the violation comes from the idea that the combination “evokes” the film. In fact, the film evokes the other PD elements, the judge has it the wrong way round. Copyright protection does not evolve from the “Iconic” nature of the film, but rather the work of the creators and the claims they make (or lack thereof in this case). What the judge did here, by referencing the “Iconic” nature of the film and the “evocation” created by the combined PD elements, is to give MGM an unregistered trademark. This speaks directly to the Dastar Case, which says, you can’t do exactly what the judge just did.


You're much more versed in the law than I am, K, but I'm going to guess that what the judges were reacting to was the intent of the t-shirt makers (whether that legally should be taken into account or not). When you put up a picture of Judy Garland in costume with a quote from the Wizard of Oz, you're obviously TRYING to make people think of the movie.

To use an example like yours, hamburgers are public domain. The cursive letter "M" is public domain. The color yellow is public domain. But if I open a hamburger joint with big, yellow cursive "M"s everywhere, McDonalds is going to sue my tail off, and probably win ... in no small part because I'd obviously be trying to make people think of Micky D's when they see my place.

Maybe the law doesn't say that matters, but (for better or worse) the law doesn't exist in a vacuum. It's interpreted by human beings and, therefore, human prejudices are going to creep into things, no matter how much we may want or wish it to be otherwise. On the other hand, if you're right, hopefully the case will be overturned either on appeal or by a later ruling in a similar case. Time will tell...
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Wed Jul 20, 2011 9:54 pm

Transmooky wrote:
Just when I think I've got my head round the use of public domain charcaters something like this happens.

I'm going to stick to little used characters from now on and hopefully the 'BIG BOYS' won't try and sue the arse off me! Smile

I'm right there with you, Transmooky, especially because I don't see much need to take the risk. Why should I use Captain Marvel, knowing DC is going to sic their lawyers on me, when there are plenty of other PD characters that nobody cares about that are so close to the Shazam family that I can't think of anything I could do with one that I couldn't do with the others? Similarly, Argosail mentioned that Superman will technically be PD in a year or so. Maybe, but what can I do with Superman that I couldn't already do with Atoman (or American Crusader or any one of a bunch of other characters)?
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Thu Jul 21, 2011 2:57 am

Golden Bard-

What I have been trying to put forward here in the forum, since I started posting, is that if we’re going to discuss Public Domain, we’d all better damn well know what it is, and how it works, rather than how we’d like it to work, or how DC and Marvel would like us to think it works. I have said it before here, I am NOT a lawyer, but it’s not all that difficult to read up on some of this stuff.

Copyright protects the creative elements, the “unique expression” of an idea, in order to “encourage the useful arts and sciences”, by providing authors with protection. Trademark offers the PUBLIC protection by safeguarding marks of trade or service, so as to protect the public from “the likely confusion of the source of origin of goods.” Very different things, but simply, Copyright protects ART, Trademark protects BRANDS.

Pardon me if I’m repeating myself, but here’s another way to look at the Wizard of Oz case. The phrase “there’s no place like home” is from the 1900 book, “The Wonderful Wizard of Oz”…absolutely in public domain. A photo of Judy Garland as Dorothy was taken, for a publicity shot, and given to theaters on posters and handbills BEFORE the 1939 MGM film version was released. Under copyright law, any subsequently released work is a derivative work of the original, which in this case, means the 1939 Wizard film itself! The unique things in the film, such as dialogue, music, movement, etc, are still under copyright, but the images FIRST RELEASED in the photos ARE public domain, said the Appeals Court. However, mixing the two things together, they said, does not make either one unique or protectable under copyright law, but bizarrely, “evokes” memories of the 1939 film in people’s minds, and therefore, is a copyright violation. HUH?

Nope, sorry, “evoking” things in people’s minds forms a trademark, not a copyright. Also, the Appeals Court said if you want to use the public domain posters, you must use them in their ENTIRITY, rather than a piece of them. I’ve seen this idea bantered about on various PD forums, but this flies in the face of he last 100 years of copyright rulings. This could mean two things, legally. One, lets take Frankenstein. Using this ruling, if I wanted to, I could reprint the original Mary Shelly novel, from cover to cover, no problem. However, if I reprint just page 38, then somehow I “evoke” the Universal Film, I become liable for infringement…wait, what? Or, what if you made a movie of Snow White meets Pinocchio, both PD characters, but Disney could successfully sue you because the combination of those two characters belongs to Disney alone…preposterous. Before I leave the whole “evoking” issue behind, let me add once again that after the US Supreme Court’s Dastar decision, you cannot protect a trademark which principally lies in the public domain.

Oh, and Transmooky and Golden, do not believe for a second, that using a little known “super” will protect you from a lawsuit. Sure, it’s less likely that you’ll get sued for using Atoman or American Crusader, but certainly not impossible. Number one, in Fox vs. National, the latter was able to prove in court that Victor Fox’s Wonderman (1939) was a copy of their Superman pretty much cause they both performed similar acts. Later, although it was never determined exactly what was infringing, Captain Marvel stories were found to have infringed on Superman stories, and the judge noted that their primary difference was that one wore red and the other blue. This might mean, frankly, that DC holds copyright on every character with superpowers and a cape, depends on the court.

Second, American Crusader was a Nedor character, and those books WERE renewed, most of them. Somebody holds a copyright, we just aren’t sure who. That being said, that they waited 65 years to bring a claim, while people right and left used the character might actually invalidate the copyright.

Third, and here’s the worst part…the Wizard of OZ decision, remember that piece of legal legerdemain? If you take that under account, then since Atoman begat Captain Atom, who than begat Dr. Manhattan, and DC holds copyright on Dr. Manhattan, your use of Atoman may be prevented because Atoman “evokes” what DC owns now. Sorry Mooky. (being a wise guy, the Wizard decision is just plain wrong)

Oh yes…I thought it worth mentioning that in NO WAY does Superman become public domain in 2013. What happens in 2013, is that the Schuster Estate may sue to reclaim their assignment to DC of the Superman character…if successful, would leave the underlying copyright in Action Comics #1 with the original creators, rather than DC Comics. Currently the copyright is held jointly by DC Comics and Joanne Siegel.

You are right about the Trademark thing, Golden. McDonald’s would sue you for a restaurant with golden arched M’s….but, trademark has to be pretty specific, so maybe not....... Smile

http://www.trademarkia.com/mcdougals-chicken-fingers--wings-77441351.html
http://www.failpost.com/2011/02/nike-mcdonalds-knockoff-fail.html
http://www.flickr.com/photos/12517755@N05/3622176140/
http://jobspage.typepad.com/.a/6a00d8341c558153ef0105362672a9970b-pi


Here's another great write up on the Wizard mess....

http://www.patentlyo.com/patent/2011/02/copyright-interlude-what-is-the-public-domain.html
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Thu Jul 21, 2011 4:43 am

Bard, I didn't say Superman would become publi domain anytime soon...I don't think he will be PD until about 50 years from now, now that he belongs to a family estate (DC's claim to Action Comics #1 should end in about 20).

Yes, I'd be careful about Nedor characters, but the fact that nobody has stepped in yet is encouraging...their initial copyrights will only last about another 20 years, assuming anyone owns them at all.

Kevin, one thing I'd agree with you on is this restriction on not being able to edit down something in public domain. I don't think that is legal and don't understand where that came from.

As far as the t-shirts, it doesn't matter if the photos predate the movie. What matters is that the movie predates the t-shirts. The expression on the t-shirts is derivative of the expression of the movie. If I draw a picture of Chewbacca, Lucas doesn't own the paper, the pen or even the particular character design I use. But my expression is still directly derivative of his. I try to market that drawing, he sues me. He wins, case closed. Same with the t-shirt. Yes, the word iconic" would suggest a trademark issue if it were the primary argument of the ruling, but I think in this context, it was simply used to emphasize the fact that the t-shirt was necessarily derivative, demonstrating that the t-shirt designer's intentions could not be mistaken for an accident. Whether the law is right or wrong, and whether MGM deserves to own exclusive rights to their movie for more than 50 years, the t-shirt designers attempted to profit off a movie owned by someone else. They could have used a drawing of Doroty, or a photo of another girl dressed as dorothy (Wicked has done quite well with creating their own versions), but these guys used a picture from the movie and attempted to express something with it that the movie already did. In this case evocation comes from derivation.

Kev, it seems like you are really trying to deconstruct copyright and trademark law, but Bard is right, law is subjective and ultimately a judge is going to weigh split hairs against the practical value of the spirit of the law. You can argue that you didn't kill the guy, the bullet did, but good luck getting a judge to buy that.

I'm with you on not letting the powerful mislead you on the law. I plan to use Plastic Man and Captain Marvel just despite DC. But I would do that because I think the law is pretty cut and dry there (at least for now). But I also know that the more I have to rationalize, or split hairs or look for possible loop holes, the more difficult it would be to convince a judge I was right. If something seems murky, that is a point at which you may just want to respect an IP claim. There is so much clear PD material, that you really don't need to push every boundary.
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Thu Jul 21, 2011 5:05 am

argosail wrote:
Kev, it seems like you are really trying to deconstruct copyright and trademark law, but Bard is right, law is subjective and ultimately a judge is going to weigh split hairs against the practical value of the spirit of the law.

Exactly. I wasn't arguing with you, Kevin; I agree that in a lot of ways this ruling makes no sense. However, I also see a certain amount of logic behind it. I really seems like the judges forgot about their legal training and went with a gut-level human reaction: A picture of Judy Garland saying "There's no place like home?" OF COURSE that's ripping off the film! Legally, that might not be the right answer, but it is the human answer and judges were human long before they were judges.

From what I've seen, I don't think anyone on the board is a lawyer, but even if someone was, I'm pretty sure you can ask 6 lawyers and you'd get 6 different answers. It all depends on what the judge ultimately says, and this case (especially when compared to Dastar) should make it obvious that you could ask 6 judges and you'd get 6 different answers!

kevinryanvt wrote:
What I have been trying to put forward here in the forum, since I started posting, is that if we’re going to discuss Public Domain, we’d all better damn well know what it is, and how it works, rather than how we’d like it to work, or how DC and Marvel would like us to think it works.

Well, I can't argue with you on that point, and I admit that I have (at best) a vague understanding of how PD works. I don't get how DC can buy the rights to Captain Marvel, publish him for 40 years, but he's in the public domain, but the Nedor characters, who have languished in comic limbo for decades, might (theoretically at least) be risky to use. I'm hazy on exactly what the differences are between copyright and trademark, and how each affects the issue. And the Quality characters (who DC also claims to have bought) are such a mess that they make my head spin... I've read a little on these subjects, and I'm not stupid, but legal stuff just makes my eyes glaze over and my brain stop working (like math).

So, although there's a lot of good information scattered around the board in bits and pieces, I'd be quite appreciative if someone did (or at least started) a thread on the basics of PD, what it is, how it works, etc., so that all that info is in one place. And if anyone wants to add links for further reading, that might help, too. Hopefully, that way we'd all be starting on the same page, at least.
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Thu Jul 21, 2011 5:30 am

I've been thinking about doing a series of YouTube videos on the subject, but again, don't expect those in the near future...I have to find time, and make sure I state things carefully.

DC bought these properties legitimately, but may or may not have known that some issues were public domain. However, buying them did give them rights to all copyrighted issues, a significant amount of material. Quality isn't a huge mess as far as I know...issues are public domain or they're not. The one complication I can think of is the advetures of "The Spirit" and Lady Luck, because those were reprints and Eisner's family owns The Spirit.

Nedor was renewed, but the fact that nobody had a problem with Dynamite's Black Terror series, or the many other uses of the character suggests that either rights weren't transfered, or whoever owns the rights doesn't know it or doesn't care. Which may make them the safest characters to use!
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Thu Jul 21, 2011 8:41 am

Let me clear up a few odds and ends here:

1. Superman is NOT owned “by a family estate”. The copyright on the contents in Action Comics #1 is owned by a combination of Joanne Siegel and DC Comics, Inc.

2. Action Comics #1’s public domain release will occur 95 years after it’s publication, January 1, 2033. The status of the Siegel’s ownership does not affect this in the US.

3. There should be ZERO question whether there is a copyright on the Nedor Characters, there absolutely is. However, that copyright either remains with the Pine Estate, Fawcett Books, or Warner Brothers, and is publicly undetermined.

4. Use of the Nedor Characters is likely permissible due to the Doctrine of Laches. Essentially, by not defending your rights for a length of time, you lose the right to take action. The Nedor characters have been used by many companies. It is unlikely the genie can be put back in the bottle. After a time, people rely on the idea that certain things are alright to do, because everyone does them. They are known as “Reliance Parties”.

5. In the Warner vs. X One X or, the “Wizard of Oz” case, the conclusion of the Eighth Circuit that one can use public domain works only in their entirety probably comes from the idea in Trademark law that says that is permissible to violate trademark when there is no other way to market a product, such as with the Fleischer Superman Cartoons. It shouldn’t apply in X One X. The Supreme Court has said that public domain can be used in any way the public wishes, with or without attribution.

6. Argosail - It ABSOLUTELY matters if the photos predate the movie. The Eight Circuit ruled that the still photos ARE public domain. The expression of Garland used on the T-Shirts are neither from the movie nor are they derivative of the movie. The stills were taken during filming, by independent photographers, and released without copyright…BEFORE the movie. A work cannot be derived from a work published after itself. If this were true, I could make a Romeo & Juliet film in 2011, and claim that the play is derived from my film. Doesn’t work like that.

7. If you draw a picture of Chewbacca that is from the 1977 Film, Star Wars, Lucas owns it. If your picture of Chewbacca is from a publicity still released in 1977 without a copyright notice, it is PUBLIC DOMAIN under the Copyright Law of 1909. Lucas sues you, he loses, case closed, even in the Eight Circuit. If the photo is from 1978 or later, you lose.

8. Argosail - Boy, you are twisting copyright and trademark law with the discussion of the legal impact of “Iconic”. First of all, the Wizard case is a COPYRIGHT case…trademark law should not have been considered in determining copyright infringement. Second, any effort of the t-shirt designers to “profit off a movie” is limited to the fact that the movie is remembered well…otherwise, neither the t-shirt nor Wicked would exist. That is not covered by protection by either copyright or trademark law. Besides, both the District court AND the Appeals court ruled the photo to be PUBLIC DOMAIN. Also, the show Wicked DID make changes to evoke, but not copy the film.

9. I am NOT trying to “deconstruct” any kind of law. I am trying to state what it says, versus what it does not say. Law is not supposed to be subjective, but rather apply equally to all. A T-Shirt of Judy Garland, created from a public domain work, or actually two different PD works, does “evoke” memories of the film, no doubt, but you’re ALLOWED to evoke. Judge Lernard Hand called it, "A poor thing, but mine own". (Fawcett v. National) I have, however, been saying, that the law doesn’t mean a thing until the man in the robes says it does. That being said, you’re supposed to support Supreme Court precedent, and not have a district court set it aside.

10 Golden - Here’s a great reference as to how public domain works:

http://copyright.cornell.edu/resources/publicdomain.cfm


11. Captain Marvel, as a character, is in public domain, because his first three published appearances are public domain. The Captain began as Captain Thunder, in two identical black and white promo comics, Flash Comics #1 and Thrill Comics #1, which were produced to secure trademark on the titles and the character, by Fawcett. He was next seen in Whiz Comics #2 (there is no 1) as Captain Marvel, in a story which is a direct reprint of the first two, but in color and with a new name. None of those three issues had their copyright renewed, making them PD. Following that, Captain Marvel books were renewed for a few issues, and then are PD due to non-renewal until about 1949...its about 50/50. When DC “bought” Captain Marvel, they bought the character, probably the trademarks, but that doesn’t affect the PD stories. It’s kinda like if I sold you the Brooklyn Bridge. I don’t really own it, so I can’t sell it. Even if you paid me 10 Million dollars for it, you still don’t own it. Curiously, DC is now calling the character Captain Thunder again.

12. As for the Nedor characters, here’s what happened. Ned Pines, a publisher, owned many companies which he used to publish comics, including Better Publications, Standard Publications, Nedor Publications and Popular Library. So, collectively, these characters became known as the “Nedor” characters, despite being owned by different companies. Most issues published by these companies were copyright renewed, by Popular Library. Popular was sold and resold, and today is owned by Warner Brothers. However, it is common in publishing to only include Trademarks in the sale of a magazine company, rather than the contents, so, because nobody has seen the terms of the sale, no one knows exactly who owns the characters. What we do know is that many companies have used the characters, and no entity has stepped forward to claim any copyright on them. After awhile, even if you technically own the copyright, you lose the right to pursue it in court, so the Nedors are most likely open game.

13. It is very important to understand here, that once a property goes into public domain, you CANNOT “lock it up” by registering a trademark. That’s what Dastar says. The reason for this is because you could create a “mutant” (I'm quoting) copyright, and for all intents, own a public resource forever. This is why when you read that DC owns Plastic Man, they really don’t. They might own a logo they designed, but not Plas. The same goes for Dynamite with Black Terror or Daredevil, etc.

14. The Quality Characters appeared in books from roughly 1940 until 1956, when the owner passed away. The owner of Quality, “Busy” Arnold, in fact bought most of these characters from a company called Iger, and no one is quite sure whether he owned them at all, but in any case, Iger as a company did not leave a successor, they just closed up. Also, the only copyrights renewed were on a limited number of mid 1950’s books, so most of Quality is public domain, again, despite what DC claims they “bought”. In fact, DC really didn’t know they owned Quality at all in the mid 1960’s, as Editor Carmine Infantino said that if he’d known he owned Plastic Man, he never would have created the Elongated Man.

15. DC bought a lot of things in the late 1950’s, but roughly about 1960, had a problem. Their owner, Harry Donnenfeld, suffered a bad fall, and was forced to retire. DC may not have been aware of what they owned or didn’t and what was covered by their agreements. That being said, we do not know what the sales agreements said, so we do not know what DC did or did not have the rights to. What we do know is what the copyright renewal record tells us.

16. As for The Spirit, what was printed in Quality Comic Books were reprints, as the Spirit was created for a supplement of Sunday newspaper strips. This was done by Iger and Eisner. I cannot find any record of The Spirit supplements having been renewed, so it is most likely that they, including the character of the Spirit himself, are public domain. Eisner himself made a claim that he “had an agreement” with Iger that he would own everything if he ever left Iger, but we only have his word for it that such a thing ever existed. Ultimately, The Spirit is public domain. If you have reservations about using The Spirit, then use Midnight, which was “Busy” Arnold’s knockoff, and is exactly the same."

Again, not trying to "one up" anybody, I'm just presenting research...if I'm wrong, just show me.

Kev

PS: Most Star Wars publicity stills WERE copyrighted.
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Thu Jul 21, 2011 3:34 pm

Oww! my head hurts now!

I've read all the above and I'm even more confused than ever now.

If I create a character that 'evokes' memories of another character I'm then liable to be sued?
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Fri Jul 22, 2011 2:35 am

Mooky-

What confuses you?

To answer your question, if you create a character that “evokes” memories, are you liable to be sued?

Short answer: Yes.

If by liable, you mean likely to be, not sure, you’d have to see the character first. If by liable you mean could you be, of course. I could sue you over a ham sandwich. The odds of any given business in California being sued in a given year is about 1 in 3. Whether the lawsuit someone files against you goes anywhere is a question mark, and what we’re discussing here, I think, is how to make sure it doesn’t go far, but, it’s tricky.

Personally, I think the decision to hold a company liable for “evoking a memory”, using PD works, is absurd. Copyright is supposed to be about whether or not a person actually copied the work of another, and one key concept was that that work had to fall under the limited monopoly granted to it by government. What the “Wizard” case does, is say that if a work is not protected by government monopoly, and is usable by everyone, but your use of it reminds people of something, you’re responsible. I’ve frankly never heard such a thing before. Also, of course, the same court said that while the photos were PD, and anyone should be able to use any part of them, you can only use them in their entirety…come on…seriously?

Sometimes, legal decisions can get stranger still. There’s one called Paramount Pictures vs. Rubinowitz. In that case, a video dealer was selling tapes of Star Trek’s 1st Season, pointing out that Desilu (the production company), never put a copyright notice on the film! He assumed that no copyright notice meant that Star Trek was public domain, well, because that what the law said. Publish something without a copyright notice, (before 1978)…its public domain. What the court said was, yes, Star Trek was shown without a copyright notice for its whole first year, it was never actually “published”, so it didn’t need one to be protected. Now, every copyright case and law up until that point had said that “publishing” meant that you handed out copies and did not have physical control of them, which was the case when Trek sent copies to TV stations, but the Court said, “Well, they meant to keep control of it, so too bad”. Here again, this case is ripe for review, and may explain why CBS is VERY tolerant of Star Trek fan films, they may not have any way to stop them.

So, here’s my advice, keeping in mind that I AM NOT a lawyer. Do some research, and find out if you think a character or story is protected or not, based on what your research tells you, and proceed accordingly. You might get sued, you might not, all you can do is make reasonable efforts to minimize that. Keep in mind that James Cameron got sued over Terminator, because he said in an interview that he was “inspired” by a Harlan Ellison story, while Disney did not get sued over The Incredibles, which had to be the most obvious Fantastic Four riff I’ve ever seen. In conclusion, who knows what evil lurks in the hearts of men?

-Kev
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Transmooky

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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Fri Jul 22, 2011 4:36 am

You have obviously done your homework here mate.

I'm confused how the likes of Dynamite can get away with using PD characters such as Blue Beetle - calling him Big Blue, while DC does nothing about it.

However if a small fish like me uses the character and abides by the rules then I could still get sued for evoking a 'memory' of a character that DC likes to think they own.

Same with Captain Marvel - the original character is PD but because DC have published stories for decades then they would argue that again I've infringed their 'copyright'.

Am I reading all this correctly?

How do I know what I can use without fear?

I seem to remember a lawsuit by Warner Bros suing the Salkinds for their Superboy TV series because it was derivative of Superman - so where does it end?


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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Fri Jul 22, 2011 7:43 am

With no pun intended, issues are on a case by case basis. Dynamite can use Blue Beetle, because he is public domain….they could probably call him Blue Beetle as well. See, we are only guessing as to why Dynamite chose the name “Big Blue”. It might have been for trademark reasons, or it might have been because of their interpretation of the “Scarab” character, who is very “Blue Beetle” like. Just a guess, nothing more, because I have nothing to go on.

Yes, you could get sued for “evoking a memory”, and you might win, or lose, I have no idea. When I say this is ok, or this other thing is not, I have said several times, I am talking about what I feel is likely, not how a court will decide. But, I can tell you that the “Wizard of OZ” case is just one case, the next one could go the other way, or be overturned by the Supreme Court. The Sherlock Holmes owners tried exactly the same thing, saying that the Holmes stories still under copyright from the 1930's prohibited use of the earlier PD works, and the court rejected that argument.

Recently, there’s an ongoing case where the Uruguay Round Table Treaty restores copyright to foreign works which did not meet US copyright requirements but retained copyright in their home countries, literally removing them from public domain here. The District Court said they can’t, the Appeals Court says they can, and the Supreme Court is considering it now. This would effect the book Lord of the Rings and the film Metropolis, among others and which under US law, are public domain. We shall see.

All this having been said, I can just give you my opinion, based on research. Blue Beetle IS public domain, as is Captain Marvel. The Dastar vs. 20th Century case says you can’t rely on a trademark to prohibit use of a public domain work, so the DC trademarks may not be enforceable, while the “Wizard of Oz” case was decided wrong and overrides a Supreme Court decision by creating a trademark/copyright where none exists. We shall see.

The Salkind case was completely different. In that case, Warner argued that the Salkind’s license to make Superman movies did not extend to a Superboy TV Show. You might have that confused with the case of Warner vs. the Siegel Estate which found that Superboy was different from Superman which in my mind, is also absurd. Want to hear silly? Marvel sued the Government over import laws, claiming that the X-Men were monsters, rather than people, to get around an import tariff which limited “human figurines”.

Where does it end? It probably doesn’t. How can you use public domain, or any other character to make your own stories, films or comic books completely without fear? You can’t. What you can do, is do the research, try and understand what the intellectual property laws actually say, versus what they don’t, use what you reasonably believe to be safe territory and cross your fingers. Remember, you can be sued for ANYTHING, it doesn’t mean you will be, nor does it mean you’d lose.

Kev
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PostSubject: Re: The Screwy Public Domain (Wizard of OZ)   Fri Jul 22, 2011 3:23 pm

Thanks Kev,

I've really enjoyed reading your informative posts.

You're right, I did confuse the Salkind case with the Siegel Estate case.

Here's to crossing our fingers and going for it!

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