Copyright

Every year on January 1^st, various copyright skeptics assemble to sing the praises of works going into the public domain, and indeed call for celebrations! Typical is this from the Electronic Frontier Foundation: "Every January 1st, we celebrate the creative works that become free to use and adapt as their copyright expires… [M]any thousands of cultural artifacts from 1927 and earlier can now be used by artists, educators, and businesses without fear of massive copyright liability…"[ref]US Copyright Term Extensions Have Stopped, But the Public Domain Still Faces Threats[/ref] And this from the Duke University Center for the Study of the Public Domain: "The public domain is also a wellspring for creativity. The whole point of copyright is to promote creativity, and the public domain plays a central role in doing so. Copyright law gives authors important rights that encourage creativity and distribution—this is a very good thing. But it also ensures that those rights last for a "limited time," so that when they expire, works go into the public domain, where future authors can legally build on the past—reimagining the books, making them into films, adapting the songs and movies. That's a good thing too!"[ref]January 1, 2023 is Public Domain Day: Works from 1927 are open to all![/ref] So what do we – "the public" – get for this event which deserves so much celebration? Not much. First up "Winnie the Pooh: Blood and Honey." As a result of Winnie The Pooh going into the public domain in the United States in 2022[ref]"Oh Brother!" said Pooh. "I've Gone into the Public Domain" "So Why Are People Celebrating?" asked Piglet[/ref] (he has been in the public domain in Canada since 2007[ref]More Public Domain "Triumphs": Winnie the Pooh "Blood and Honey", and the Great Gatsby (Zombie Version)[/ref]), we are now treated to a horror movie starring Winnie the Pooh and Piglet. There you can thrill to the sight of Winnie the Pooh in a swimming pool, decapitating a screaming young girl with an axe, and knocking out a bikini clad girl (hey, it's a horror movie) with chloroform and then running over her head with a car.[ref]Mickey's Copyright Adventure: Early Disney Creation Will Soon Be Public Property[/ref] Feeling culturally enriched yet? Feeling a need to "celebrate"? Here's what I said last year, when Pooh went into the public domain: "[T]here's no reason to celebrate what is sure to come, a bunch of poorly written Winnie the Pooh knockoffs that will have none of the charm and whimsy of the originals, which made them so popular in the first place."[ref]"Oh Brother!" said Pooh. "I've Gone into the Public Domain" "So Why Are People Celebrating?" asked Piglet[/ref] So what does "Winnie the Pooh: Blood and Honey" say about Pooh and Piglet as characters? What insights are revealed about their nature and personalities? Anything? More likely "Blood and Honey" mines the well-worn horror tradition of making a child's plaything malevolent, like "Chucky" from the "Child's Play" series of movies or more recently the AI robot of "M3gan." And even more likely is that the selection of Pooh as your main character is due to the fact that he is already internationally famous, thanks in no small part to – ahem – The Walt Disney Company. This way your project attracts an instant wave of publicity that money can't buy, and indeed does not have to be bought. This from USAToday: "Will the righteous outcry stop the release of 'Blood and Honey'? Not a chance. The film's producers are reaping the benefits of a massive publicity windfall. [Director Rhys] Frake-Waterfield told Variety that the filmmakers are rushing to cash in while the attention is there. ‘Because of all the press and stuff, we're just going to start expediting the edit and getting it through post-production as fast as we can,' he said, vowing to make ‘sure it's still good. It's gonna be a high priority.'"[ref]How can Winnie the Pooh be made a killer in 'Blood and Honey'? The public domain, explained[/ref] So, no need to spend the time or effort thinking up the new Michael Myers, Norman Bates, The Predator, Jason Vorhees or Freddy Kreuger. Just pluck a well-known character from the public domain and your work is done for you! And don't think that other horror producers haven't taken notice. Reputed to be in the works are slasher movies starring The Grinch (referred to as "The Mean One") and Bambi. "Director Scott Jeffrey…is working on a slasher version of Felix Salten's nearly 100-year-old ‘Bambi' novel. Jeffrey promises an ‘incredibly dark retelling' of the tale. ‘Bambi will be a vicious killing machine that lurks in the wilderness,' he tells Dread Central. ‘Prepare for Bambi on rabies'"[ref]Id.[/ref] So, what is Disney to do? Not much. Pooh and Bambi are unquestionably in the public domain. But as I noted last year, Winnie the Pooh is also a trademark.[ref]"What's Next?" Thought Pooh. "Because I Just Found Out I'm a Trademark Too!"[/ref] The Pooh of "Blood and Honey" does resemble the Disney Pooh (perhaps it's a mask a'la Michael Myers?) but is a lot taller, and wears a bloodied lumberjack shirt instead of the short red sweater. And clearly, Disney would not have anything to do with a "slasher version" of Pooh. But would the public think so? When I watched the trailer for "Blood and Honey" on YouTube it was immediately followed (without a hint of algorithmic irony) by an advertisement for the Disney+ streaming service. In addition, a colleague who has YouTube premium (so no pre, mid, or post video ads) reported this ad ran beneath the "Blood and Honey" trailer, and favored me with a screenshot. (h/t to Franklin Graves). There is a legal concept known as "trademark dilution," which posits the following: "In law, dilution refers to the use of a trademark or trade name in commerce that is sufficiently similar to a famous mark that by association it confuses or diminishes the public's perception of the famous mark…. Dilution consists of two principal harms: blurring and tarnishment. Dilution by blurring occurs when the distinctiveness of a famous mark is impaired by association with another similar mark or trade name. (citation omitted). Dilution by tarnishment occurs when the reputation of a famous mark is harmed through association with another similar mark or trade name." (citation omitted).[ref]Cornell Law School - dilution (trademark)[/ref] Would Pooh decapitating a girl with an axe "diminish the public's perception of the famous mark"? Perhaps it does. For now, Disney is very quiet on this front. But enough of homicidal toy bears. What of more scholarly works? Much ado was made about the release of a new novel by Michael Farris Smith titled "Nick" which re-told the "The Great Gatsby" from the perspective of Nick Carraway.[ref]January 1, 2023 is Public Domain Day: Works from 1927 are open to all![/ref] Less ado was made about "The Gay Gatsby" and "The Great Gatsby" Undead (Zombie Edition).[ref]January 1, 2023 is Public Domain Day: Works from 1927 are open to all![/ref] One commentator on Gatsby rewrites had this to say: "[A]ny kind of rewrite of a famous novel is always going to be a lesser novel because it depends on fairly intimate knowledge of the original to be appreciated. To do that is to aspire to be at best a third nipple or eleventh finger on another work, and really none of these rewrites ever attain even that position because they are quickly forgotten as times and mores change, while the work they are based on have usually survived several changes in times and mores already."[ref]See comments to: The Beautiful and the Damned[/ref] And there was this: "I've never understood the need to piggyback off a famous novelist's work to write what basically amounts to fan fiction.  Other than it being a way to get published when publishers won't touch your original work.  And I fail to see the need for a feminist twist on The Great Gatsby."[ref]Id.[/ref] And this: "Any one who wants to tell people how things really are: don't "rewrite" an established classic, don't ride on the coat-tails of others. Create your own."[ref]Id.[/ref] And finally this: "If you enjoy these, you'll love my Beethoven's 10th Symphony I've just released in the style, maybe, of Beethoven if he'd had a kazoo."[ref]Id.[/ref] Putting aside the snark of these commentators. There is nothing inherently wrong with using source material from the public domain. The question is what do you do with it? Do you actually "build" on the work? Or do you merely use the famous work as an attention getting device? "West Side Story" is a reworking of Shakespeare's "Romeo and Juliet." But there is no mistaking the brilliance of the adaptation, which stands alone as its own individual work. "Romeo and Juliet" also found its way into Disney's "Pocahontas." And into "Avatar." And there is more than just a bit of "Hamlet" in "The Lion King." There have been numerous retellings of the legend of King Arthur and the Knights of the Round Table. But needless to say, John Boorman's "Excalibur" is WAY different in tone and style than Lerner and Lowe's "Camelot" and certainly "Disney's "The Sword and the Stone." So, there is nothing inherently precious about works going into the public domain that deserves celebrations. Because you're going to get a lot of dross. As smartphone technology increased, leading to better and better pictures and video, this joke circulated around my movie-making friends: "Wow. Now anyone can make a movie. Problem is, now anyone can make a movie." The same can be said about the public domain. The problem is now anyone can do it.

On January 10, 2023, Dr. Stephen Thaler filed a Motion for Summary Judgement in his suit against the U.S. Copyright Office.[ref]Stephen Thaler v. The United States Copyright Office[/ref] He is seeking to force the Copyright Office to grant him copyright to the artwork titled "A Recent Entrance to Paradise" in which the author was identified as "Creativity Machine," an artificial intelligence art program. The Copyright Office has three times before refused to grant registration. I wrote a previous blog post about the refusals.[ref]Of Course I Own the Copyright! I Own the Machine That Created It![/ref] This is due to long standing rules of the Copyright Office which state: "U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects ‘the fruits of intellectual labor' that ‘are founded in the creative powers of the mind.' (citation omitted) Because copyright law is limited to ‘original intellectual conceptions of the author,' the Office will refuse to register a claim if it determines that a human being did not create the work."[ref]Copyrightable Authorship: What Can Be Registered[/ref] For his part, Dr. Thaler's lawyers state this does not count as actual law. They argue: "This policy is unsupported by law. The plain language of the Copyright Act (the "Act") does not restrict copyright to human-made works, nor does any case law. The USCO mistakenly relies on dicta, predominantly from cases predating even the existence of modern computers, together with inappropriate reliance on a technical report that pre-dates autonomously creative AI."[ref]Thaler Motion for Summary Judgement at 1.[/ref] This is merely a slight variation on the tired old tech excuse of "but tech is different! The old rules don't apply!" But let's give Dr. Thaler a leg up. Let's concede that the "Creativity Machine" can indeed create copyrightable work. How does Dr. Thaler acquire the copyright from the "Creativity Machine"? Here's where things get loopy. "[I]f Dr. Thaler owned a fruit tree, he would own the fruit from that tree. This does not require the tree to execute a written agreement to transfer the fruit, the fruit belongs to Dr. Thaler by virtue of his relationship to the tree. Similarly, if Dr. Thaler owned a cow that birthed a calf, ‘[t]he general rule, in the absence of an agreement to the contrary, is that the offspring or increase of tame or domestic animals belongs to the owner of the dam or mother.'"[ref]Thaler Motion for Summary Judgement at 21.[/ref] That's right. Plaintiff here is comparing a copyright to a piece of fruit. Or a cow, take your pick. But let's give Dr. Thaler an even further leg up. Let's agree that "Creativity Machine" can create copyrightable art, and that Dr. Thaler owns the art that "Creativity Machine" makes. Does this grant Dr. Thaler the copyright? Well, no. And the answer is in the plain language of the Copyright Act. The copyright in a work of art is separate and distinct from any copy of the work that exists. This is true even if you own the only copy in existence. "Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object;…"[ref]17 U.S.C. Section 202[/ref] For example, let's say I own a painting by a famous artist, let's say Salvador Dali. Let's say further that he created the painting especially for me, and gave the original painting to me as a gift. Does that make me the copyright owner? Well, no. I would only own the copyright if, and only if, Dali executed a transfer of copyright ownership to me, in writing and signed by him. This is where the whole AI argument falls down. This is because "Creativity Machine" is not a sentient being. It is incapable of creating contracts, much less an assignment of copyright. It would not have any cognitive sense of what a copyright is, much less an assignment of copyright. So if "Creativity Machine" cannot assign the copyright to Thaler, he is left with two possibilities. The first is that "Creativity Machine" is his slave, much like the cow, and he can force "Creativity Machine" to transfer the copyright to him. Since virtually every country in the world has made slavery illegal, this is not a path that is - um - "fruitful." Next up is that somehow the output of "Creativity Machine" is a work for hire under the copyright act. Thaler's attorney's argue "[w]hile an AI system is not a legal person, and is not an employee in the sense of the labor code, in the context of the work for hire doctrine it acts as an employee."[ref]Thaler Motion for Summary Judgement at 25[/ref] This begs the question. If "Creativity Machine" is not a "legal person" then how does it make the decision to be "employed" by Dr. Thaler. It can't. The entire argument fails on the problem that "Creativity Machine" is not a sentient being. It cannot take the necessary steps to become an employee that could possibly generate a "work for hire." The Copyright Office has already ruled precisely on this point: "A work made for hire must be either (A) prepared by ‘an employee' or (B) by one or more ‘parties' who ‘expressly agree in a written instrument' that the work is for-hire. 17 U.S.C. § 101 (definition of ‘work made for hire'). In both cases, the work is created as the result of a binding legal contract—an employment agreement or a work-for-hire agreement. The ‘Creativity Machine' cannot enter into binding legal contracts and thus cannot meet this requirement."[ref]Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR # 1-7100387071)[/ref] But is a copyright really equivalent to a piece of fruit? I guess we'll have to wait for the Judge's ruling on that particular point.

It's about time for the myth of the "Mickey Mouse Protection Act" to take its final bow. Of course it was never true, but that did not stop people from ginning up publicity (about themselves or their organizations) by declaring that the Sonny Bono Copyright Term Extension Act, passed in 1998, was all about protecting the property of Disney and particularly Mickey Mouse. "There was not a single argument that actually can stand up to any kind of reasonable analysis," says Dennis Karjala, a law professor at Arizona State who emerged as a de facto leader of the opposition to the law."[ref]15 years ago, Congress kept Mickey mouse out of the public domain. Will they do it again?[/ref] With apologies to Prof. Karjala, who died in 2017 and is thus unable to rebut my argument, there were several very important policy considerations that favored the extension, as noted in my previous blog post,[ref]The Shocking Truth Behind the Passage of the Sonny Bono Copyright Extension! (Is That It's Not Really Shocking)[/ref] mainly the importance of bringing the United States to an equal playing field with that of the majority of the world, in terms of the length of copyright protection. But this was not enough. They kept insisting, without the citation of any evidence, that when Mickey Mouse was set to enter into the public domain, Disney was GOING TO DO IT AGAIN. Consider these headlines: "15 years ago, Congress kept Mickey Mouse out of the public domain. Will they do it again?"[ref]15 years ago, Congress kept Mickey mouse out of the public domain. Will they do it again?[/ref] "The Mickey Mouse struggle: Will Disney reshape copyright law again?"[ref]The Mickey Mouse struggle: Will Disney reshape copyright law again?[/ref] With these breathless pronouncements: "The big question now is whether incumbent copyright holders will try to get yet another extension of copyright terms before works begin falling into the public domain again on January 1, 2019…most of the experts we spoke to said the stakes are so high that a renewed lobbying push is almost inevitable."[ref]15 years ago, Congress kept Mickey mouse out of the public domain. Will they do it again?[/ref] "With the Mickey Mouse Protection Act, today Disney's mascot is dangerously close to being released into the public domain. Unless the company successfully lobbies another extension, Steamboat Willie is set to expire next year. Based on its history, we should expect that Disney has been lobbying to keep ownership and protection over its beloved character."[ref]The Mickey Mouse struggle: Will Disney reshape copyright law again?[/ref] And this from noted anti-copyright critic Chris Sprigman: "If Hollywood and their allies want to do this, they're going to have to start doing it now, I would imagine there are discussions going on."[ref]15 years ago, Congress kept Mickey mouse out of the public domain. Will they do it again?[/ref] [N.B. "now" is the year 2013] OK. Massive SPOILER ALERT! It didn't happen. Not even close. No bills were introduced. To the best of my knowledge, no bills are planned to be introduced. Congress has only to the end of this year to prevent "Steamboat Willie" and "The Barn Dance" from entering the public domain.[ref]Mickey's Headed to the Public Domain! But Will He Go Quietly?[/ref] Not going to happen.[ref]Id.[/ref] I have been predicting this outcome since 2014. Because the "Mickey Mouse Protection Act" was a myth and always has been a myth. First off, let's note that Disney was far from the only organization that lobbied for the extension. Others included Time Warner, Universal, Viacom, the major professional sports leagues (NFL, NBA, NHL, MLB),[ref]Wikipedia - Copyright Term Extension Act[/ref] and the Estates of George Gershwin and Oscar Hammerstein.[ref]15 years ago, Congress kept Mickey mouse out of the public domain. Will they do it again?[/ref] But then again, the "Mickey Mouse Protection Act" carries a more succinct punch than the "Rhapsody in Blue" Protection Act, which having been composed in 1924,[ref]Wikipedia - Rhapsody in Blue[/ref] would have entered the public domain much earlier than "Steamboat Willie." And it certainly is a lot punchier than the "There are solid policy reasons for extending US copyrights Act." I have covered this subject at length in previous blog posts.[ref]The Shocking Truth Behind the Passage of the Sonny Bono Copyright Extension! (Is That It's Not Really Shocking)[/ref] So let's take a short course:

• The United States makes the most popular and profitable Intellectual Property in the world.
• At the time of the passage of the SBCTEA, copyright protection in the US lagged the rest of the world by 20 years.
• The Berne Treaty's "Rule of the Shorter Term," made them less competitive with European works.
• The majority of the world has a copyright term of Life plus 70 years.
• Only a handful of nations have longer terms: Mexico at Life plus 100 years, Spain at Life plus 80 years.

So, let's take a look at how this plays out in economic terms. At the end of 2021, FaceBook (Meta) had 71,990 employees worldwide.[ref]GlobalData - Meta's Employee Headcount (2012-2021)[/ref] Walt Disney World employs 75,000 people in Florida alone. It is the largest single site employer in the United States.[ref]Walt Disney World Is the Largest Single-Site Employer in the World[/ref] The Walt Disney Company currently employs 195,000 people worldwide, down from pre-pandemic levels of 223,000 in 2019.[ref]The Walt Disney Company Employment Dropped by 33,000 During Pandemic, Only Now Growing[/ref] Isn't copyright good for the economy? Mark my words, when "Steamboat Willie" passes into the public domain (and it will), the anti-copyright crowd will never admit that they were wrong about the SBCTEA, and have been actively misleading the public all these years. They will instead crow "we won the war without firing a shot." Which leads to the question: For years you have been saying you were not "anti-copyright" but you were for "better copyright." Now you admit that you were "at war" with copyright all along. Which begs this question: Why are you "at war" with something that employs so many people?