In the US you don’t have moral rights, but authors still feel like they are their works’ parents. They’re their works, even if copyrights have expired. I can well imagine that authors don’t want others to touch the worlds and people they came up with.

Also, a character or a world can be a franchise. One can not-mind that old works that have served their purpose return to the public domain, yet still want to control the world and the characters. In other words, distribute the old stuff all you want, but don’t change a comma, and no derivatives. There are even CC licenses that will let you stipulate such conditions for in-copyright works. And Richard Stallman formulated such ideas even earlier in discussion about copyright.

The whole point is moot from a legal standpoint. “Protecting” your world is not what US copyright is about. Nevertheless people will argue for changes in copyright law based on what is the best for their fictional worlds, so it might be a useful strategy to phrase law proposals in such a way that authors feel at ease with them in this respect.

And then there is fan fiction…

The situation appears to be different when you have later copyright-expired works (due to issues like nonrenewal) derivative of earlier copyright-not-expired works, as in _It’s a Wonderful Life_ et al.

This issue will complicate further when copyrights that start expiring are “life plus” copyrights rather than “fixed term” copyrights. If copyrights expire more or less in the order they’re secured, derivative work issues tend to work themselves out, since the original work expires before the derivative. But if the author of the original died later than the author of a derivative, things get complicated. (Of course, the same issues come up with renewed copyrights, as we’ve seen, but at least there nonrenewed works tend to be more obscure.)

I think the reason you can compile PD cartoons and not make derivative works is because the characters are still Trademarked (trademarks do require active use to be upheld).

I thought “It’s a Wonderful Life” was PD for a time, until the early 90s (based on the precedent set in the Rear Window case).

IANAL either, so maybe I’m probably confused.

I don’t know where you got that understanding.

The only person I’ve ever seen make this claim is Lauren Vanpelt, a law student, in a student paper called “Mickey Mouse – A Truly Public Character”. I have yet to see any copyright lawyer or judge agree with her, though, and if you read the paper you’ll notice it relies on some pretty intricate reasoning. Shoot down one of these arguments in a court of law, and the whole set comes crumbling down. (IANAL. TINLA.)

Of course, she might entirely be right. To my knowledge, no-one ever tested that defence in a court of law, and when somebody will, the defence might be upheld. A PDEA could try and account for that possibility.

(IANAL. TINLA.)

“My understanding is that once a work enters the public domain, derivitive works could them be made. So let’s say the main character of my hypothetical comic strip appeared in every strip. If just one of those strips fell out of copyright then derivitive works featuring that character could be made (as long as they only referenced the now public domain strip.”

The _It’s a Wonderful Life_ example that appeared here earlier would appear to argue against that reasoning. (Remember, there the movie copyright expired, but most people acknowledge that it’s not public domain, at least not completely, because it’s a derivative work of a story that’s still in copyright.)

If that reasoning applies, then the critical renewal is for the *first* comic book or strip of the series (or the first including particular characters).

Mind you, I’ve also seen some compilation videos of cartoons claimed to be in the public domain that use characters that I’m pretty sure are still asserted to be in copyright. That doesn’t quite fit the reasoning above, since if the characters are in copyright, I’d expect the cartoons using them are not PD even if the copyrights to the specific cartoons in question were not renewed; and if the characters are *not* in copyright, I’d expect to see folks making new cartoons based on them without legal worries, and I don’t see that. But maybe the law here has been clarified since I saw these compliations; anyone know?

My understanding is that once a work enters the public domain, derivitive works could them be made. So let’s say the main character of my hypothetical comic strip appeared in every strip. If just one of those strips fell out of copyright then derivitive works featuring that character could be made (as long as they only referenced the now public domain strip).

I think trademark law would come into play there, but for a single person operation it might be too expensive a fight to have.

I am in favor of things going into the public domain after a more reasonable ammount of time than what we have currently, but I feel the PDEA fails to take into account fields where you have a large body of works (photography, short stories, comics, serialized works, etc.) I tried posing the question in the past elsewhere, but I’ve never seen it addressed.

Jay

Aha, I just found a statement on the Public Domain Enhancement site that seems to back up this guess–see Q11:

Doesn’t this proposal conflict with our obligations under the Berne treaty?
Not when limited to works created in the United States. The Berne Convention prohibits the requirement of “formalities” in order for a creator to enjoy and exercise their creative rights. However the terms only bar the imposition of formalities on foreign authors. Domestic “formalities”–like this tiny renewal fee–are not prohibited in the nation of origin. Countries that agree to the Berne Convention remain free to control the existence or exercise of creative rights as a matter of domestic law. Nations are free to tailor their copyright law with respect to their own authors.

Jay . You raise a really good point about what would require the fee. First, as I mentioned above, formalities were essentially eliminated after 1989, so for current creators, it’s not an issue. It applies only to works produced under the old registration regime. However, what about comics or works published serially in a publication instead of all at once? This is fine print that Congress has to worry about when the will is finally there to do something.

I thought this has already been torpedoed by the photographers?

“However, the harms pointed out by the plaintiffs is obvious and tangible.”

I read somewhere that judges typically find against smelly hackers, but for elderly librarians. The harms pointed out in Eldred were also obvious and tangible for those willing to open their eyes. I do hope Lessig learned from his previous case, and has shed some of his naïvety.

“Walt Disney really does not care about this case–although professional photographers seem to).”

Skimming through the text after the link, these photographers seem to be very sensible.

Dutch copyright law has a provision that those portrayed in a photo may have copies made without paying the photographer. A very sensible measure that would take most of the sting out of a orphan works act. After all, the biggest problem with orphan works for the man in the street is that he cannot have his wedding photos reprinted.

“Ponder that. The government attorney acknowledges having no knowledge of any discussion by Congress about the consequences of moving from an opt-in to an opt-out system. That concession is unbelievable.”

That wasn’t really what was said, but it is significant nonetheless.

Since the US is a signatory to Berne, and international treaties typically trump federal law (there’s some discussion about that too, as federal law is defined to be on equal footing with treaties in the US constitution), there’s a good chance Kahle/Lessig will lose this case, unless they indeed manage to convince the court that the Bono law is unconstitutional. A tack Lessig tried before, and lost.

Let’s say I write a daily newspaper comic strip. When that first strip comes up for renewal I have to allow the characters into the public domain of pay $365 in renewals that year. The next year it doubles, and so on. If I was only a moderate success and depended on sales of my collections in my retirement I’d be out of luck. In fact the more work I had produced the worse off I’d be.