How Do You Infringe The Copyright Of Public Domain Works?

from the strange-legal-rulings dept

Tue, May 13th 2008 7:07am — Mike Masnick

And here's another fun copyright mystery from William Patry: it turns out that some courts have constructed a rather convoluted rationale for how you can still be found to be infringing copyrights, even on material that everyone admits is public domain. While it's rare, he cites two such cases, suggesting that both have rather tortured logic behind them. The first involves a play which was later turned into a movie. While the play remained under copyright, the separate copyright of the movie was not renewed in a timely manner, allowing it to fall into the public domain. Yet, because of the remaining copyright on the play, a court determined that the movie could not be distributed, since it retained some elements directly from the play.

Even if you can sort of understand the reasoning for that one, it's hard to figure out the reasoning behind the second case. In this one, a bunch of episodes from "The Andy Griffith" show fell into the public domain. However, it was just a bunch of episodes from later seasons. Earlier seasons remained under copyright. The court ruled that since the later shows were based on the earlier shows that were still covered by copyright, the later shows could not be distributed freely. This seems like a rather perverse interpretation of copyright law.

But, of course, when you have people viewing copyrights not as an incentive to create, but as a kind of "property" over which you have total control, these types of rulings are bound to occur. The default is quite often going to be to lean towards more control, even if the sensible decision both under the law and for society is to allow the content to really become a part of the public domain.

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Filed Under: copyright, infringement, public domain

19 Comments

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Anonymous of Course, 13 May 2008 @ 7:57am

How?
How you ask? Because the law is whatever
we say it is. We're judges, the unanointed
can not possibly understand.
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Thom, 13 May 2008 @ 8:13am

I say it again and again
big media is setting itself up for a serious fall. One of these days some big media outlet is going to use an individual's material without gaining the rights to it. That individual will go to court showing the countless times the media company has argued for rights, protection, excessive fines, every use as a loss, etc. and then show that the media company illegally distributed the person's content to millions. Media company meet your new owner...
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MLS, 13 May 2008 @ 8:18am

Why such a result?
One of the least understood aspects of copyright law is that portion known as "derivative works", and this portion has been a constant source of confusion.

Academics and practitioners alike have expressed for many years the apparent inequities that can arise in situations such as those described in the article.

While the noted situations are fully consistent with federal copyright law, one does have to ask if this is one area of the rights afforded holders of copyright that should be re-examined and a more equitable approach incorporated into copyright law.
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Sajon, 13 May 2008 @ 8:22am

"later shows were based on the earlier shows that were still covered by copyright"

Therefore it would seem it is unnecessary for a musician, author etc to gain copywright protections from any future works as long as they recieved protection on at least one piece of work in the past as all future work is in some way shape or for based on previous work.

Faulty logic at its best.
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Dan Zee (profile), 13 May 2008 @ 8:23am

Lawyers Can Argue Anything
In this day and age, the law doesn't mean much. Rather the winners seem to be the lawyers who can come up with the most creative arguement. That seems to be the case here. If one Andy Griffith show is copyrighted, they all are copyrighted? That's a pretty good argument. The same with the play being copyrighted. If the movie has one line of dialogue from the play, then the movie is copyrighted? Strange logic.

But this sort of thing has been used before. RKO Pictures got the rights back to It's a Wonderful Life, which had fallen into the public domain, by finding out that the music was still under copyright, and they used this technicality to take the public domain versions off the market.

Another example is Tarzan. The early books are in the public domain, but the character is trademarked. Therefore, public domain publishers can't feature the character on the book cover or in any illustration. They skirt the issue by showing a picture of a jungle or an abstract logo, making the public domain book harder to market.

But there are plenty of other examples. For example, an unborn baby doesn't have any rights until it's born, so a mother can have an abortion right up to the time of birth. However, the newest twist is if a criminal kills a pregnant woman, he's then charged with two homicides. Suddenly the unborn baby has rights.

Likewise some social services departments have been able to have women locked up for abusing the health of their unborn babies if the women are taking drugs or are not taking care of themselves, yet the women can legally have abortions and not be considered murderers.

The best one was where a husband was found guilty of statutory rape because his legally married wife got pregnant. She was 15 and he was 16, and the parents gave permission for the marriage, and it was legal in the state. But the DA argued that birth of the baby proved she had had sex when she was a minor. And minors can't consent to have sex. So therefore, she was raped. The husband was found guilty and got locked up for a year, couldn't provide for his family, who then had to go on welfare. The argument won over common sense.
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Liam, 13 May 2008 @ 8:41am

meh
so, if I create something, and base it on a copyrighted work... which is fair use, who owns the copyright?
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Baloney Joe, 13 May 2008 @ 8:46am

Re: Lawyers Can Argue Anything...
what what what?

How the hell does abortion and rape have anything to do with copyright law. You really should find another forum...

By the way, the husband rape thing sounds like urban legend to me...but then again I am pro-choice so what do I know right...
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John (profile), 13 May 2008 @ 8:49am

How does this affect Disney
How long will it be until some enterprising lawyer picks up the rights to the public domain version of Snow White, Cinderella, Sleeping Beauty, and the Little Mermaid and decides to sue Disney for not securing the proper copyright? In one lawsuit, the guy could take a huge chuck out of Disney's entire "princess" line of merchandising (valued in the billions of dollars).

Does anyone know if Disney even now owns the copyright to Snow White? Obviously they own the distinct likeness, but what about the names of the characters?
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Phil McCraken, 13 May 2008 @ 8:50am

Re: How does this affect Disney
do your own business model research...
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comboman, 13 May 2008 @ 9:15am

Re: How does this affect Disney
Disney has a habit of changing the public domain stories it uses. The names of the seven dwarfs (Sleepy, Dopey, etc) are not in the original Brothers Grimm tale. The Little Mermaid has an entirely different ending than Hans C. Anderson's original story. Some of the changes are likely to make the stories more palatable to modern audiences, but I'm sure some are also to put the Disney mark on those public domain stories to stop anyone else from doing an "unauthorized" sequel.
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doublehack, 13 May 2008 @ 10:35am

not so implausible
You know, if you're short two cents at the grocery counter, you'd hope that the cashier would let you go.

So these works lapsed - apparently by accident - into the public domain. But the artists had intended to still have copyright over them, and would have, if their agents had remembered to send in the paperwork. Should we really be pissed off if they successfully used, even if convoluted, logic to get their copyrights back?
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Hank, 13 May 2008 @ 10:46am

no public domain
If you follow the logic in these arguments then there is no public domain. After all, there's no such thing as an original idea. Everything can be traced along some line back to something that is copy written. Just give lawyers enough time to get creative with it and they can make anything connect back to a copy written work.

Think about it, the writer of a TV show is influenced by a book they read, who's author was influenced by a play they saw, who's author was influenced by a movie they watched, who's writer was influenced by the Andy Griffith show which is still copy written, so that new TV show decades later is in violation of Copy Write laws because the lawyers claim that bits of the original Andy Griffith show made it into the following works.
Just watch, someone will try it. Our legal system is screwed up enough to allow it to happen.
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Anonymous Coward, 13 May 2008 @ 11:49am

Re: Lawyers Can Argue Anything
But there are plenty of other examples. For example, an unborn baby doesn't have any rights until it's born, so a mother can have an abortion right up to the time of birth. However, the newest twist is if a criminal kills a pregnant woman, he's then charged with two homicides. Suddenly the unborn baby has rights.
I'm not sure how this relates to copyright. Please explain.
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Nasch, 13 May 2008 @ 3:05pm

Re: not so implausible
If that's what had happened, maybe. But this is party A licensing to party B. Party B allows their work to go into the public domain (for whatever reason), and then party A claims copyright infringement against someone copying party B's work. Assuming that the movement into public domain was legitimate (and I don't know what restrictions might exist), this should not be allowed to happen, but apparently that's where we are right now.
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Anonymous Coward, 13 May 2008 @ 6:40pm

Wasn't there a guy who was accused of infringing upon his own material ?
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MadJo (profile), 14 May 2008 @ 2:35am

Re: I say it again and again
What you describe there has already happened. At least I can remember reading a story somewhere where a "news" station had used the picture of a dog dressed up in Christmas attire as part of one of their Holiday promos.
That picture was not theirs, but from someone else, they had just grabbed it from someone's Flickr account without attributing the source, nor asking for the rights to use it.

IIRC, the cost of starting a lawsuit against that station did not weigh up to the 'damages' incurred by use of that image.

Another instance I remember was from (I believe) Nokia, which had taken a picture of a building from someone's Flickr feed to use in one of their business websites and other promotional material. Without asking for permission.

In both cases I have forgotten where I read it, though I suspect the latter story was featured here on Techdirt.
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Anonymous Coward, 23 Feb 2011 @ 7:44am

Re: How does this affect Disney
IP maximists aren't creative, they steal works from others (ie: public domain works) without authorization, they create unauthorized derivative works, and then they take govt imposed monopolies on the original works and any derivatives of the originals. This is nothing short of legalized theft.
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Anonymous Coward, 23 Feb 2011 @ 7:45am

Re: Re: How does this affect Disney
(actually, they don't create derivative works, they take control over derivative works created by others and pay them little, often times not even paying them what they owe, like the RIAA which does no creating of its own).
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Anonymous Coward, 23 Feb 2011 @ 7:47am

Re: not so implausible
"Should we really be pissed off if they successfully used, even if convoluted, logic to get their copyrights back?"

Yes because the law says that those works should be in the public domain and, as many IP maximists argue, following the law is important.

Unless you're arguing that obedience to law is not important, in which case it's not important for me to obey copy'right' law and hence I should simply ignore it and copy whatever I please.
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