Re: Re: will everyone concerned about copyright please read this

On 22/09/2011 01:02, Lee Passey wrote:
> On Wed, September 21, 2011 5:16 am, Brenna Lyons wrote:
>
>    
<snip>
> Trademarks are acquired through use, and in no other way. The very fact
> that you have created a character, and published a book about him, seems
> to me to be incontrovertible evidence that you intended to claim a
> trademark in that character. Every time a consumer reads about
> "Commander Aleeks Daahn" she or he should know that "this is a work that
> originates from Brenna Lyons, and none other." This is a feature (and in
> this discussion perhaps /the/ salient feature) of trademark law that can
> only be approximated in copyright.
>    

Lee,

You make a most interesting point. Within a very small range of 
published material it could apply well; though I have some doubts even 
then. But beyond the book which is a novel and which has an identifiable 
key character it fails the test of protection. And when, as is most 
often the case, a character is not re-used anyway, it has limited, 
rather than open, commercial value.

Books are of so many types, and enter so many niches, that it is 
extremely difficult to see trademarks offering much protction. 
Especially where the point is that the form of words used does have 
value - this applies to both fiction and non-fiction - and only 
copyright, so far, offers protection of that. We might consider poetry 
in that light. Apart from the endless sagas of long ago most poetry is 
fairly short and succinct - that is in fact largely its point. 
Trademarks would offer no protection.
<snip>
> Copyright is intended to encourage you to write a book by promising that
> once you have done so you will have a short-term monopoly on its
> publication, and upon the publication of its "derivative works," which
> you may then exploit to your advantage.
>
> Now the "derivative work" term in copyright law is problematic, and
> remains largely undefined. The "derivative work" protection was not a
> part of U.S. copyright law until the legislation of 1976, which is
> practically yesterday in a legal time frame. So far, very few cases have
> attempted to define the exact parameters of the attributes of a
> "derivative work."
>    

Your general point might be true for the US, but you should also note 
that the Berne Convention, signed around 1989 by the US, requires the 
recognition of copyright law of other countries for works from those 
countries. The derivatives concept is fully established in practically 
all Berne countries [170 or so]. It would be difficult for the US courts 
to provide adequate protection for foreigners under Berne, and deny that 
same Berne protection to US authors.

<snip>
> According to the U.S. Copyright Circular 14, a derivative work is "one
> that is primarily a new work but incorporates some previously published
> material.... Titles, short phrases, and format, for example, are not
> copyrightable." Unless a derivative work includes substantial material
> that has been previously published, I wouldn't count on copyright law to
> protect a "derivative work" that is not a restatement of a previous work
> but only an extension of previously published situations and ideas.
>    

There are some individual cases where ideas have effectively been seen 
as copyright, but there is no expectation or requirement for the 
protection of ideas.

> Based upon these considerations, and other explanatory material I have
> read, I believe that a movie version of a book /would/ be considered a
> derivative work, but a sequel, or fan fiction, would not, as they do not
> incorporate previously published material.
>    

I agree that a sequel would hardly be a derivative work if it was the 
product of the same author. Fan fiction is, however, breach of 
copyright; in a particular case I found myself sympathising with a young 
American fired to write fan fiction, but unable to distribute it since 
it used characters and worlds developed by another; it is most certainly 
seen as derivative. There are a few authors who do encourage fan fiction 
- possibly as a marketing tool.

> So, if you're trying to profit from publication of a work, you want to
> turn to copyright law. If you're trying to profit from the brand created
> by the publication of a work, turn to trademark.
>    

Yes, I'd certainly agree with that. Though I'm under the impression that 
much branding on products can be covered by copyright.
> On the other hand, I'm not necessarily trying to prove anything to you.
> You are a grown woman, who no doubt has her own counsel, and who is
> willing to accept responsibility for her own decisions. I'm more
> interested in raising these issues in a public forum where at least some
> people may come to the realization that copyright is not the Swiss army
> knife of commercial writing, and will explore other, more productive,
> avenues of achieving their goals. I don't even care if /no one/ accepts
> my analysis if only they take the time to do the research, as I am
> confident if one approaches the issue without preconceptions he or she
> will arrive at the same conclusions I have.

I can't promise to do any research that way, but I'm also not dismissing 
these points. I think the most important aspect for most writers is that 
copyright - that is to say the international forms based on Berne - is 
relatively simple, and offers a theoretical protection from colloquial 
'theft'. It is a pity that the US clung to registration, especially as 
it tied the right to go to court and a timely condition on damages to 
that registration. In all other Berne signatories the right to sue for 
breach just *is*, though that right lacks those nice penalties under 
timely US registration. :-)

The real goal of writers is to receive decent payment for their efforts, 
without having to bow to any form of patronage. That few achieve that 
decent payment is a feature of capitalism, marketing and writing skills. 
The opportunity to achieve them still seems to me to rest on copyright. 
Only the highly successful would seem to me to find a value in trademarks.

Joseph


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