Post Reply How is it legal that a work that legally expired its copyright here get re-copyrighted?
67659 cr points
Send Message: Send PM GB Post
31 / M / Glendale, AZ
Offline
Posted 25 days ago
Here is the question following a rant/info post: John T. Aquino is an author and attorney representing Maryland and D.C. He has 3/30/2012 blog entry called "Legal Problem Solving: It's a Wonderful Life"* and it describes about how It’s a Wonderful Life got a copyright restoration. The Abend was the key for that to happen. A 5/8/2008 blog entry called "Infringement by Copying Public Domain Works" (on a no longer-updated Blogspot page called The Patry Copyright Blog) was written an IP attorney named William Patry**. That blog post talks about how Paramount Pictures used the Abend ruling on The Andy Griffith Show episodes 80-95.

Federal courts have ruled that pre-1972 sound recordings fully become public domain from federal and state/common law copyright protections) on 2/15/2067. So, even though an American film may be public domain because of lack of renewal, the soundtrack is still copyrighted. So, even if the classic 1946 Christmas film failed to renew its copyright or lapses its current 95-year protection, it still has a layer of copyright protection via soundtrack until that date. Thus, it can have over 120 years of federal and common-law copyright protections with the music. What's also hectic is figuring when the 2nd copyright expires (for the movie itself, not necessarily the music).

It doesn't help that Viacom has a label/division called Melange Pictures that has some USPTO-registered trademark on the classic film title. So, even if the copyright was not restored, one couldn't do really do a much with it (play or movie re-make wise).

If I was an IP attorney, I would go on record saying "These said works are public domain and staying there. Also, even if the early entries of a book or TV series are still copyrighted, the later entries that didn't have their copyrights renewed cannot be restored, except under a "Director's Cut"-type situation. As such, It’s a Wonderful Life, outside of derivative versions, should not be restored, as it legally expired. The Abend decision and similar rulings should apply only to derivative works that are currently copyrighted. If filming a Transformers movie in a theater with your iPhone is copyright theft, then a copyright restoration of It’s a Wonderful Life is public domain theft. Also, I question how SCOTUS could ever justify this being allowed should this info be presented to them".

Now that my rants are out of the way, this is a question to the American copyright experts or attorneys here. I am asking for your personal opinion and not what any federal courts have ruled on such matters (if you don't know, just make a BS answer up based on what you know about such situations): how is it legal that a work that legally expired its copyright here get re-copyrighted? I thought the idea and rule was that goes in the American public domain stays. I don't care if that public domain work is a derivative/adaptation of a still copyrighted work, what goes in the public domain should stay there.

*johntaquino.com/Blog--Substantially-Similar.html?entry=legal-problem-solving-it-s
**williampatry.blogspot.com/2008/05/infringement-by-copying-public-domain.html
34233 cr points
Send Message: Send PM GB Post
M
Offline
Posted 25 days ago
Because money.

(Not a lawyer)
runec 
36675 cr points
Send Message: Send PM GB Post
Online
Posted 25 days ago , edited 25 days ago

kadmos1 wrote:
If I was an IP attorney, I would go on record saying "These said works are public domain and staying there. Also, even if the early entries of a book or TV series are still copyrighted, the later entries that didn't have their copyrights renewed cannot be restored, except under a "Director's Cut"-type situation.


You would be a pretty bad IP attorney then, no offense. An IP attorney isn't suppose to advocate for giving up intellectual property. >.>

As for It's a Wonderful Life; It was an accident that led it to lapse into American public domain to begin with ( and indeed, had it not, it would never have become a holiday classic. As the movie originally bombed. ). For anyone wondering what the story is here it basically goes:

It's a Wonderful Life's movie copyright expires due to a filing error.*
TV networks jump on it for cheap Christmas content. It becomes a holiday classic.
The film rights to the story did not expire. Neither did the copyright of the original story the movie is based on.
The successor copyright holder has the rights restored in 1993 based on the fact they own the rights to the original story, the film rights to it and the soundtrack to the movie.

*It's very important to note here that originally a copyright only lasted 28 years before it had to be renewed. Copyright law has changed immensely since then. It's now 90 years for business held copyrights and 70 years after the death of the person for books, music, etc. Under modern copyright law It's a Wonderful Life would never have fallen into public domain to begin with.

To put a more modern twist on it, this would be like Tolkien's family owning the rights to the books of the Lord of the Rings, the film rights to the story of the books and the sound track to the LOTR movies.......but the Lord of the Rings movies ending up being in public domain due to a clerical error. So a pretty strange legal scenario to begin with. However, you can see how in this scenario it wouldn't be unreasonable for the Tolkien family to legally argue that the movie rights should belong to them as well. Because they legally own both the story, the film rights to the story and the soundtrack of the movies.

However, there is no rule that what goes into American public domain stays there. "Public domain theft" is not a thing. American copyright law allows for the restoration of a copyright under a number of different circumstances. Usually surrounding works that should not have fallen to public domain in the first place and/or works where there is still a valid legal holder outside of the US or a successor to the copyright. Such as the case with the Abend decision.




marklebid wrote:
Because money.

(Not a lawyer)


Also that.

13127 cr points
Send Message: Send PM GB Post
31 / M / Marshall, Michigan
Offline
Posted 25 days ago , edited 25 days ago
Works leaving public domain is a tragedy, but what's worse are cases like Vernor v. Autodesk.


runec wrote:


You would be a pretty bad IP attorney then, no offense. An IP attorney isn't suppose to advocate for giving up intellectual property. >.>

As for It's a Wonderful Life; It was an accident that led it to lapse into American public domain to begin with ( and indeed, had it not, it would never have become a holiday classic. As the movie originally bombed. ). For anyone wondering what the story is here it basically goes:

It's a Wonderful Life's movie copyright expires due to a filing error.*
TV networks jump on it for cheap Christmas content. It becomes a holiday classic.
The film rights to the story did not expire. Neither did the copyright of the original story the movie is based on.
The successor copyright holder has the rights restored in 1993 based on the fact they own the rights to the original story, the film rights to it and the soundtrack to the movie.

*It's very important to note here that originally a copyright only lasted 28 years before it had to be renewed. Copyright law has changed immensely since then. It's now 90 years for business held copyrights and 70 years after the death of the person for books, music, etc. Under modern copyright law It's a Wonderful Life would never have fallen into public domain to begin with.

To put a more modern twist on it, this would be like Tolkien's family owning the rights to the books of the Lord of the Rings, the film rights to the story of the books and the sound track to the LOTR movies.......but the Lord of the Rings movies ending up being in public domain due to a clerical error. So a pretty strange legal scenario to begin with. However, you can see how in this scenario it wouldn't be unreasonable for the Tolkien family to legally argue that the movie rights should belong to them as well. Because they legally own both the story, the film rights to the story and the soundtrack of the movies.

However, there is no rule that what goes into American public domain stays there. "Public domain theft" is not a thing. American copyright law allows for the restoration of a copyright under a number of different circumstances. Usually surrounding works that should not have fallen to public domain in the first place and/or works where there is still a valid legal holder outside of the US or a successor to the copyright. Such as the case with the Abend decision.




marklebid wrote:
Because money.

(Not a lawyer)


Also that.




True, but very Canadian for a response.
runec 
36675 cr points
Send Message: Send PM GB Post
Online
Posted 25 days ago

jtjumper wrote:
Works leaving public domain is a tragedy, but what's worse are cases like Vernor v. Autodesk.


Yes, that one was some pretty dubious legal shenanigans and a lot more far reaching than the Abend decision.






jtjumper wrote:
True, but very Canadian for a response.


I'm sorry.
67659 cr points
Send Message: Send PM GB Post
31 / M / Glendale, AZ
Offline
Posted 25 days ago , edited 25 days ago
runec said:

However, there is no rule that what goes into American public domain stays there. "Public domain theft" is not a thing. American copyright law allows for the restoration of a copyright under a number of different circumstances. Usually surrounding works that should not have fallen to public domain in the first place and/or works where there is still a valid legal holder outside of the US or a successor to the copyright. Such as the case with the Abend decision.

There is somewhat of a social contract rule that has the idea of "you agree for to terms of what the copyright says at the time your work was copyrighted". In that case, it might mean your work expires when you failed to renew it.

OK, so if pirating Moana is theft, then re-copyrighting a public domain work is a counterpart.

What also doesn't help is that the very first Paramount Pictures (the current copyright holder) movie (including their immediate predecessor) was based off of the public domain. Also, let's not forgot that the House of Mouse has dozens of public domain-based movies. On a listing of almost 50 of them, I tallied up the value (not including inflation) earned from it. About $11.4 billion.

Someday I will write a letter to my Congress rep with statements indicating or hinting at such retroactive decisions violate the Constitution in spirit/letter. The only acceptable penalty is to remove some SCOTUS and Congress members from office.

Addition: foreign and domestic works that fell into the American public domain, regardless of the reason, cannot be removed from the American public domain. Works that were re-copyrighted, regardless why, go back into the public domain. Likewise, if said work was a derivative work of a still-copyrighted work at the time the source work fell into the American public domain, both the source material and the derivative work have an immediate copyright termination. Derivative versions from them can be copyrighted but are legally required to indicate they are a derivative, such as a "director's cut" label.

All copyrights and trademarks (common-law/registered for each) that apply to said works are immediately terminated. The former rights holders, their subsidiaries/associations/affiliates, and licensors that owned those rights are to be immediately notified of this ruling: all new trademarks (both common-law and registered) that apply to said works and that would otherwise apply to said companies are legally not recognized by any federal/state/county/city court, the Copyright Office, and the USPTO. This "legally unrecognized" ruling applies to any TM (common-law/registered) associated of any derivative versions of said work.

-yro.slashdot.org/story/15/08/16/191215/ask-slashdot-how-to-prove-a-work-is-public-domain. Even if the classic Christmas film wasn't copyright restored (for it to be 100% public domain here, all layers of copyright and trademark would be permanently removed), a trademark on the title bars you from doing much with it. Trademarking a public domain thing like does act as a perpetual copyright, for all intents and purposes. Such a protection span is forbidden by the Copyright Clause.

To me, a lawyer or legal expert answering the question of how a federal court was evening adhering to the spirit/intent with the Abend ruling is when I really stop asking this question on various web threads. However, it is coming from the lawyer or expert's constitutional interpretation. I question a federal court's ruling since such rulings often fall in favor of corporations/estates. Darned copyright maximalists.

I would say that if SCOTUS was doing their job right, they give a ruling that would not allow any copyright restoration to happen under any circumstance.
runec 
36675 cr points
Send Message: Send PM GB Post
Online
Posted 25 days ago , edited 25 days ago

kadmos1 wrote:
There is somewhat of a social contract rule that has the idea of "you agree for to terms of what the copyright says at the time your work was copyrighted". In that case, it might mean your work expires when you failed to renew it.


Er, no. This is a purely legal matter. Copyright law is one area of the law that has had to undergo tremendous changes in order to keep up with an evolving world. These changes have served to offer better protections over your work so you don't completely lose control of your own work because of, you know, a clerical error.

And again, no, there is no such thing as public domain theft.



kadmos1 wrote:What also doesn't help is that the very first Paramount Pictures (the current copyright holder) movie (including their immediate predecessor) was based off of the public domain. Also, let's not forgot that the House of Mouse has dozens of public domain-based movies. On a listing of almost 50 of them, I tallied up the value (not including inflation) earned from it. About $11.4 billion.


Not sure where you're going with this. Paramount's first movie so to speak was distributing an existing French film that the founder of Paramount had funded. Which he brought over to America. You'd have a hard time arguing that it was in any sort of public domain because the script for the movie was written by the original playwright who was naturally still alive to do so.

Disney makes extensive use of the public domain, yes, but that's irrelevant to the topic you brought up. Disney makes use of public domain stories quite extensively. But you brought up a case where copyright of the story was never lost in the first place.



kadmos1 wrote:Someday I will write a letter to my Congress rep with statements indicating or hinting at such retroactive decisions violate the Constitution in spirit/letter. The only acceptable penalty is to remove some SCOTUS and Congress members from office.


The "spirit" of the Constitution in this case was foremost to protect the creator of the works from having their works stolen. Both by others and by the government. Not to protect works that have slipped into public domain for one reason or another. SCOTUS has already ruled that public trust does not extent to works that fell into the public domain and thus removing a work from public domain doesn't require demonstrating a public benefit.



kadmos1 wrote:Addition: foreign and domestic works that fell into the American public domain, regardless of the reason, cannot be removed from the American public domain.


That would set up the exact scenario the US moved to avoid when it reformed copyright law: Screwing over non-US copyright holders. Which in turn would naturally retroactively hurt America. If you're not going to protect copyright of non-Americans they're sure as heck not going to respect yours. We don't need everyone acting like China. >.>




kadmos1 wrote:
To me, a lawyer or legal expert answering the question of how a federal court was evening adhering to the spirit/intent with the Abend ruling is when I really stop asking this question on various web threads. However, it is coming from the lawyer or expert's constitutional interpretation. I question a federal court's ruling since such rulings often fall in favor of corporations/estates. Darned copyright maximalists.


I feel like I've inadvertently stumbled into some sort of personal manifesto you have going on. >.>

67659 cr points
Send Message: Send PM GB Post
31 / M / Glendale, AZ
Offline
Posted 25 days ago , edited 13 days ago
Under the name Famous Players Film Company, Paramount Pictures was formed on 5/8/1912. The first movie Paramount produced or distributed was a film variously titled Les Amours de la reine Élisabeth (The Loves of Queen Elizabeth), Les Amours d'Elisabeth, Reine d'Angleterre (The Loves of Elizabeth, Queen of England) or La reine Élisabeth (Queen Elizabeth). Its USA premiere was 7/12/1912 whereas the French premiere was sometime the following month. Yes, it was based off of a French play. However, the French play was based off of the love between the romance of Queen Elizabeth I and Earl of Essex, both of whom died in the early 1600s. Thus, I am somewhat correct in saying Paramount's 1st movie was public domain-based.

For all practical purposes and under current American copyright laws, "It’s a Wonderful Life" is no longer public domain when counting it's music rights. The film premiered on 12/20/1946 and became on 1/1/1975 as the then current rights-holder failed to renew the copyright for a 2nd 28-year term. So, it had just over 28 years of copyright protection. It was sometime in 1993 that the Abend ruling removed from the public domain. So, for 18 years, it enjoyed public domain status and that's what helped make it a classic (it originally flopped at the box office). Even if the ruling didn't apply or the film did have it's copyright renewed, when will it re-join the American public domain?

The earliest would would have to be 2/15/2067. That is, federal courts have ruled that pre-1972 sound recordings fully become public domain from federal and state/common law copyright protections on 2/15/2067. Between 12/20/1946-2/15/1967, 102 years of that will see federal/common-law copyright protections with the music.

The problem with changing American laws is when they become "ex post facto" laws. Latin for "out of the aftermath", these are laws that apply retroactively. U.S. Constitution Section 9, Article I, Clause 3 and Sectio10, Article I, Clause 1 respectively forbids Congress and a State from passing "ex post facto" laws.

Assistant Prof. of Law Evan C. Zoldan at the University of Toledo College of Law wrote a nearly 60-page research paper called "The Civil Ex Post Facto Clause"* on 7/23/14 but revised it nearly 16 months later. On its Social Science Research Network page, the Abstract says the following (papers.ssrn.com/sol3/papers.cfm?abstract_id=2469141):

"Since its first interpretation of the Ex Post Facto Clause in Calder v. Bull, the Supreme Court consistently has held that the clause applies only to retroactive criminal, but not civil, laws. The consequences of this distinction are far-ranging, permitting, for example, states to keep offenders behind bars after they have served their sentences. The Court’s distinction between civil and criminal retroactivity is based wholly on Calder’s historical conclusion that the original meaning of the Ex Post Facto Clause included criminal laws only. This article demonstrates that Calder’s historical analysis is wrong."

3116 cr points
Send Message: Send PM GB Post
F / BuBbLeS!
Online
Posted 25 days ago
from what I was told by a few writers, agents and lawyers, once you're dead then it's up to your family to keep certain copyright things up to date and sometimes, once it reaches a certain "age" then it can't be and becomes public domain and cannot be copyrighted any further. there are cases where you can play in the courts and see what comes of it, such as a generation or two, especially if the person is dead and had some stuff left to publish, you can publish it under their name, but after awhile even that can't be done. such as the case with V.C. Andrews. you can check your local country/state for these said laws, they do change from time to time as well as location to location but they all stay about the same. but there is the problem with universal world copyright which becomes tricky so they tend to stick with first location laws (sometimes), less troublesome that way. I found an interesting read/link that does an interesting comparison https://www.publicknowledge.org/news-blog/blogs/why-copyrights-must-expire-reply-mark-helprin
Banned
413 cr points
Send Message: Send PM GB Post
29 / M / Morioh, Japan
Offline
Posted 24 days ago , edited 24 days ago
From what I understand, copyrights expire because enforcement of copyrights requires due diligence and demonstration that the copyright is actually enforced.

The music video made by Velcro is an example of that

https://www.youtube.com/watch?v=rRi8LptvFZY

Linux maintains a copyright despite following many copyleft philosophies. The sole purpose of maintaining that copyright is to protect Linux from having it's identity hijacked. If they did not enforce their copyright, a party could create a reasonable argument that the copyright isn't warranted and could have the copyright turned over to them.

So, if you do not take the standard steps with your copyright, you can lose the copyright. Which is why Velcro's name being used as the name for hook-and-loop is stressful to them.

The idea of the expiring copyright isn't about the IP becoming "free game" as much as it becoming that way because decades had passed while the copyright had not expired yet. When it expires, it's already well passed the point of being lost to time, so there truly is no need to re-copyright it.

It could be to protect people who find lost IPs and bring awareness to them or even redistribute them without the fear of someone hijacking ownership of the IP and suing for damages or stop redistribution of the IP.
67659 cr points
Send Message: Send PM GB Post
31 / M / Glendale, AZ
Offline
Posted 24 days ago
newmediarights.org/frequently_asked_questions_about_copyright_law_book addresses what the purpose of American copyright is supposed to be, the problems with current American copyright laws, and other relevant questions.

yro.slashdot.org/story/15/08/16/191215/ask-slashdot-how-to-prove-a-work-is-public-domain
-Copyrights are now automatic upon creation ("common law") but registered copyrights make it easier to keep track of.
10532 cr points
Send Message: Send PM GB Post
36 / M
Offline
Posted 21 days ago
I'm not huge on copyright or patent laws so............................

But yeah, "cause money" is probably why it's legit.
You must be logged in to post.