Copyright

[bladespark]

I keep hearing different things on this.

People keep telling me that if you don't actively defend your copyright, and go after everyone you encounter that infringes on it in any way, that somehow this is going to hurt your ability to defend your copyright should somebody infringe on it in a way that hurts your income. (The argument seems to be that in court the infringers will be able to say "but they gave permission to so-and-so to do this, so I can do it too!")

And yet on the other hand, I also keep getting told by different people who own copyrights, and are high-profile, that they don't mind, and it's okay if I use their stuff, so long as I'm not hurting their income. (Alan Dean Foster and Mercedes Lackey have both given me permission to use their stuff, and Alan Dean Foster even gave me permission to sell it, with a note going something like "If you make scads of money selling fan art of my stuff, share, that's all I ask." I don't have the original letter anymore, and I've never sold any of the fan pieces anyhow, so it's a moot point. Though someday it would be awesome to make a Furcot suit, which I could probably manage to sell.)

If the people who say that you must actively defend copyright are correct, then these nice creators have just shot themselves in the foot by letting me use their stuff. And yet these nice ceators are all famous people who have been around a long time, and definitely have legal advice of their own.

I honestly suspect the "we MUST defend this" people of using that as an excuse for being [censored] about their work, and insisting that it's mine, MINE MINE! Either that or of having been contaminated by the [censored] types.

I don't suppose anybody reading this really understands copyright law? (Does anybody really understand copyright law?)

Comments

[kainhighwind-dr.livejournal.com]

This doesn't add up somehow... what about people who infringe on your copyright without your knowing? They can't possibly prove that you did or did not give permission for those individuals. So then, all that needs doing is to insist you didn't know someone was infringing, and you'd have more leverage to sue them.

I honestly can't see how bullet-proof a conviction they could make against you for not enforcing every single offense against your copyright. And given the examples you are providing, how then do they not have trouble with enforcing their copyright? The 'defend everything' preventive measure sounds flimsy to me.

[beetlecat.livejournal.com]

Both are right really. I agree it's confusing but the gist is that copyrights are given automatically for intellectual property like art. If I draw a picture, it's copyrighted as mine without me doing anything.

However, if someone else draws a very similar picture (or just steals mine) and I take them to court, I will only win if I can prove that I owned the picture first because I have it one this gallery since this date and I gave a copy to this guy on that date and so on. If it's been in a box under my bed the whole time, I lose.

Mercededes is not worried about you stealing her ideas and making money off it because she is very well known and established already and can easily win a court battle over it. And you are not going to affect her own customer base so she won't lose money over it.

And, as always, some people like being nice and others do not.

This is all my take on it. In my small business class, one woman was starting a business based on copyright laws. By the end of the year, I still didn't really know what she was doing :D

[2dlife.livejournal.com]

Actually, this is true. You do have to actively defend your rights to retain them. It's the way it works with patents and trademarks and I'm pretty sure with copyrights.

If you allow anyone to trample on your intellectual property rights (Trademark/Patent/Copyright), then you can't randomly pick one person later on for trampling on those same rights and sue him until for millions just because he's a good victim. Such behavior is "trapping" and not allowed. That is to say, I can't pretend that I don't care that everyone is using this clipart I made and then as soon as someone at Microsoft uses it, I start suing just Bill Gates for damages.

"Actively defending" however is a little ambiguous. If I say publically "you can use my work but only under XYZ conditions" (for example, only if you ask me first, or not for commercial purposes, or not in defamatory ways) then you can do those things and I still reserve the right to pursue other people infringing on my copyright who break those rules. As the copyright owner, I can in theory discriminate all I want, "only people with green hair and who know the name of my cousin's dog's youngest puppy can use my drawings" and as long as I justify these rules and state that no one else may, I can pursue those other people. However, if I generally give EVERYONE rights but actively discriminate against Mormons (say) or people from Iraq or something then they may be able to build a case against me.

So basically, she's got as much a right to be [censored] as she wants and you have to respect her rules. She could exercise options that allow you rights to her work without diluting her power to persue others who infringe on her copyrights, but there is quite frankly nothing you can do if she doesn't feel like it. And she does have a point that it could be a slippery slope. If she gives you, Jane Stranger, rights, other people may request it and it could get ugly if she turns them down.

[starkruzr.livejournal.com]

It DOES work this way with patents and trademarks, but not copyrights.

Copyright law is hopelessly, horribly broken.

[unspeakablevorn.livejournal.com]

Actually.

Trademark infringement is the only one you have to try to defend completely; if you fail to defend a trademark, you can lose the mark. Note, however, that the only real offenses against trademark are of the general class "dilution" or "confusion" - specifically, you're not allowed to use a trademark in a way that would misrepresent either what the trademark holder actually does or would misrepresent your relation to the trademark holder. So having a... hang on, I need an image.



Putting this outside your store is Bad Juju.

Copyright infringement need not be defended against to retain copyright, but if you wait too long (like, several years after learning of the infringement) against any single infringer, that infringer can use that great delay as a defense: that you "knew or should have known" that this was going on a long time ago, and had no problem with it then. The same is true of patents. Indeed, many patents are never defended, and their use in litigation is mostly limited to a sort of mutually assured destruction.

Also, with copyright, there is a lot you can do with copyrighted stuff without being at risk of lawsuit, even without permission. This stuff is, in the US, called Fair Use. Fanfic/fanart is generally considered fair use, as is parody.

I am not a lawyer. Really you should hunt such a person down.

Vorn

[bladespark.livejournal.com]

I've seen things written by lawyers. They tend to be contradictory. Myself, I don't touch copyrighted anything with a fifty foot pole, with my only exception being in cases like with the Foster fan art, when I have gotten actual permission from the owner to do something. And even then, were I to sell one of those fan pieces now, I'd probably write him again, just to be sure it's okay, since it's been so long since I got the original permission.

[bladespark.livejournal.com]

It seems to be, yes. Especially given some of the uses it gets put to these days. (Irking to me, as I am in a field where copyright issues are a given, and I must deal with them on a very regular basis.)

[perpetual-voice.livejournal.com]

How effing annoying..UGH.

[2dlife.livejournal.com]

I was under the impression that patents need to also be actively defended. It's just most people don't infringe on patents so very often and it costs a whole lot more to enforce. Blocking patents still need to be defended otherwise, they become part of "the art" and are no longer valid.

[jtbeckett.livejournal.com]

with many artists, it's a matter of what you're doing with it... "I don't want to be associated with this because I consider it lewd... I'm calling you to ask you to remove my art" or, "I think this will give me good exposure, you may use it with my blessing"

[bladespark.livejournal.com]

I don't dispite at all that a creator has the right to be [censored] or however they like about their work.

I do, however, find it very annoying when somebody says "Oh, I'm so sorry, I'd just love to let my fans make fan works, but I can't, or I lose my copyright," if what they really mean is "No, it's MINE I won't let you!"

[puppetmaker40.livejournal.com]

*raises hand*

What do you want to know? I have worked in the publishing industry and have had to deal with this from so many different angles over the years.

[puppetmaker40.livejournal.com]

Or they have been screwed over already or their agent or lawyer has pounded this phrase into their head. Really you would be amazed at the number of movie deals that have been queered by some rights debate so the agents make bloody sure that the author doesn't inadventantly cause a problem by being nice.

If you want I have some case history on this but I would rather not put it out in a public form. puppetmaker (at) gmail (dot) com

[bladespark.livejournal.com]

Well.... I want to know everything, but I think I'd break my brain. The things that are of immediate concern to me are centered around my costuming. So MANY costume makers make things that are obviously inspired by, if not outright ripoffs from various copyrighted works. I know one doesn't usually get into legal trouble for making copyrighted costumes for one's own enjoyment, but... say I make a copyrighted characer, just for fun, just for me. Then I put it up on my website. The same website I have my sales stuff on. What's the legality? AM I in trouble?

What about if I have limited permission? I HAVE permission from Mercedes Lackey to make companion plushes, so long as I don't sell them, it's just for my fun or for gifts. But if I put them up as examples of my ability to make plushes, am I in trouble? I got permission to make them, how far does that go?

And if I see somebody out there making things based off of my stuff, do I really have to go after them? I know somebody right this very minute making a Drabbit. The Drabbit is my invention and my personal and business mascot. Their Drabbit isn't a copy of mine, but it's a Drabbit and I did it first. I've told them I don't mind their borrowing the idea of "drabbit" so long as they don't directly copy mine. Does that mean I can never insist on owning my Drabbit's design now? I'd think not, but then I'd think that one wouldn't have problems letting people draw 2-D fan art based off of sculpture, and I've been told very firmly that allowing this means the sculpture artist will have difficulty bringing legal action against sculptors who rip off her designs, and thus such fan art can't be allowed.

[beetlecat.livejournal.com]

As I understand it, you own your interpretation of a drabbit, but the concept is public domain, since it would be impossible to copyright a dragon or a rabbit in the general sense. If someone copies you exactly, then you have cause but you'd have to prove it's a copy. And a 2-D copy of 3-D art is still a copy and not allowed.

And this public doamain stuff is why companies try so hard to keep their products out of the public domain. Kleenex is a good example. It's techincally a brand name, but public use meant that it can no longer be trademarked/copyrighted and so the company loses control over the product name.

Sorry if that doesn't really make sense because I have a pretty slippery grasp on this stuff myself, even though I did some research before begining my business.

[sparkindarkness.livejournal.com]

Ok, I am not in any way a business or IP lawyer but here are some possibilities:

On the not defending - well, if you don't defend it you obviously can't stop them at the time.

There is something (in British law at least) called "Legitimate expectation." Basically this means that X has done something/not done something that has caused you to legitimately expect a certain course of action from them and if they do not follow that course of aciton and you RELIED on that action to your detriment you get bitching rights. (it's a little more complex than that and there's usually some form of link between the parties). In THEORY that could arise here (though it may be overly stretching it). If, for example, I started a fan art business and I KNEW that the author knew about it and didn't object, then I can argue that I have a legitimate expectation to continue AND EXPAND that business without the author bitching - because they never have. If you suddenly turn up and bankrupt them etc they can turn to the court and say "she didn't have ANY problem with this BEFORE I mortgaged my house to start the business!" and they have a good, powerful point

This can also apply if you have let everyone else use it but person X. They can legitimately claim they assumed it was open source because you haven't enforced it before - and there would certainly be legal issues about you singling ONE person out to sue when you haven't even sent a "cease and desist" letter to the others

Another is limitations - most cases for any kind of damages need to be brought within a timely period (in the UK, for example, you need to bring PI claims within a 6 years). So if you made oodles of cash in 1990 from violated copywrite and the copywrite owner knew it THEN but waited until 2006 to actually sue then they're probably not getting any joy.

On a more basic note it is likely to affect judicial decisions and awards in court if you let something lie. If you let it go for years and have made no attempt to stop it (not even a letter asking them to stop) then the judge is less likely to give you large damages.

Basically a long delay against a violator or singling out one violator may get you hurt.


Still, I see no reason why your copywrite would LAPSE because it wasn't enforced. I mean, even if you don't complain for years I would still say you haven't created an IMPLIED license. Doubly so if you give written permission with provisos as those you mentioned have. Nor does it stop them RESCINDING their permission at any time (unless you enter into some kind of contract setting a time scale).


Remember, this is all educated guessing though

[coyoty.livejournal.com]

Copyrights do not expire or lapse in their owners' lifetimes. They are good for 70 years after death, or "95 years from first publication or 120 years from creation, whichever is shorter" for works for hire, according to http://www.copyright.gov, where you can get all the information you need on copyrights. The only exception is the copyright on Peter Pan. By British law, that will never expire, and this is upheld by all signatories to the Berne Convention on copyrights.

You don't have to actively protect your copyright to keep it, though if you knowingly let people violate it without taking action, it could be argued that you tacitly gave permission, but legally they must have your permission in writing. It cannot be assumed. Protection means only people with your permission are authorized to use your property. That's what "copyright" means, the right to copy. If Alan Dean Foster and Mercedes Lackey authorized you to use their material, they are not giving up their rights to it; they are making you a legal agent or licensee. Anyone else using it without their permission, and using your interpretations as their agent or licensee without your permission or theirs, is violating the law. You're quite safe, and so are their copyrights.

Copyrights are established upon the creation of original works that can be copied. As soon as you draw something, or write something, or record it in some way, it is copyrighted. No one else can legally copy and distribute it without your permission. Some people think you have to register it with the government in order to own it, but registering is just a method for establishing proof that you created it. You can just as easily have it notorized or published or posted online in your gallery or journal to establish ownership. This message, for example, is legally copyrighted as I am typing it.

Trademarks and service marks are a different matter. They do have to be actively protected or they will lapse. They are the unique names, images, and other media used to identify your business, merchandise, and services, to make sure others cannot impersonate you or your work without legal consequences. They also rely on permission, and if you have permission from the owners to use them, you are their agent or licensee there too. Like copyrights, registering them is proof of ownership only and not required. They are established upon their use in your trade, as trade names, logos, signatures, etc. Unlike copyrights, they lapse if you do not protect them vigilantly or renew them through continued use. Registered trademarks are good for 10 years and lapse if they are not renewed for another term. Unregistered trademarks lapse if it can be shown that they were not used for at least 5 years.

Patents must be registered with the government, and they are only good for 20 years from the filing date or 17 years from the issue date. After that, the invention becomes public domain, unless it's improved with a newly patentable innovation.