MattBrady
01-20-2003, 09:30 AM
by Michael Lovitz
Intellectual Property - copyrights, trademarks and patents. Many know the words, but not everyone understands these rights, and the differences between them. I’m here to help.
<img src="http://www.newsarama.com/lawyer/supreme.jpg" width="190" height="143" align="right">COPYRIGHT EXTENSION UPHELD
As was <a href="http://www.newsarama.com/cgi-bin/ubb/ultimatebb.cgi?ubb=get_topic&f=1&t=000191" target="_blank"> reported</a> on Wednesday, the Supreme Court in a 7-2 ruling upheld the constitutionality of a controversial copyright extension law which passed in 1998, the Sonny Bono Copyright Extension Act (the “CTEA”). But what impact, if any, does this have on the comic book industry?
There has been much speculation and guesswork on the Boards regarding this ruling and its impact, as well as overall confusion amongst the non-lawyers. This article will hopefully explain the ruling, give a brief understanding answer and address what it means for the comic book and related entertainment industries.
First, a brief explanation of the Supreme Court’s ruling. The case was brought by Eric Eldred, who runs an online archive of published works. Eldred sought to overturn the CTEA, which became law in 1998, set the term of copyright protection to be the author’s life plus 70 years. For anonymous works, pseudonymous works, or works made for hire, the term would be the shorter of 95 years from first publication of the work, or 120 years from the year the work was created. The CTEA also extended the length of copyright protection by twenty years for those works which were, as of January 1, 1998, still protected by copyright.
The primary justification for the change in the length of protection was ensure that the length of copyright protection offered to United States authors matched the term of protection granted by the European Union. Given that the exporting of copyrighted works, such as computer games, movies, television shows, books, and comic books, accounts for billions of dollars in revenues each year, there was ample reason to embrace this justification and support the CTEA. The downside, of course, is that the term extension keeps materials out of the public domain for an additional twenty years. Those persons and companies that wish to be able to reproduce the works, such as Eldred, would be disadvantaged.
So Eldred sued, asserting that Congress overstepped their power by enlarging the copyright term for those published works with existing copyrights since the Constitution permits authors to secure protection for “limited Times”, and the extension goes beyond the established “limited Times” for those existing copyright grants. Further, Eldred claimed the CTEA violated the First Amendment’s free speech guarantee.
The District Court, and then the Court of Appeals, rejected these challenges to the CTEA, and the Supreme Court in its ruling agreed. Specifically, the District Court found that the CTEA term, while longer than the prior term, is still limited, not perpetual, and therefore fit within Congress’ discretion. The District Court also held that “there are no First Amendment rights to use the copyrighted works of others.” The Court of Appeals affirmed the decision, finding nothing to suggest a “limited Time” could not be extended for another “limited Time.”
In its ruling, the Supreme Court found that Congress had three times in the past granted enlargements of the duration of copyright protection since the original copyright statute was enacted in 1790, providing a term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Each term expansions has applied to both existing and future works, including the CTEA. The Court also noted that extensions, such as the CTEA, reflect judgments of a kind typically made by Congress; specifically, extending the term of copyright in order to ensure American authors enjoyed the same term of protection in Europe enjoyed by European authors. In doing so, the extension provides incentive for authors to create and disseminate their works. As to the issue of free speech, the Court noted that the purpose of copyright is to promote the creation and publication of free expression.
So what impact does the decision have? In actuality, there is no impact on the current rights under the Copyright law, since the extension which was challenged became effective in 1998. But the issue of duration of copyright protection is an important one for all creators, including comic book creators. For example, had the extension been found unconstitutional, and the term returned to the prior length, a number of very famous works already would have entered the public domain, or would do so during the next decade or so. The most notable was Mickey Mouse, (celebrating his 75th birthday in 2003), but also Superman, Batman and Captain America, to name a few, would not be too far behind.
Let’s look at some questions that have been raised regarding the decision, and duration of protection:
1. What does this mean for works published before 1923?
Actually, all works which were scheduled to enter the public domain at the end of 1997 (i.e., works published during or prior to 1922) did still enter the public domain. As a result, any works first published in the United States prior to January 1, 1923 are in the public domain.
2. Are unpublished works treated differently?
Yes and no. Unpublished works created on or after January 1, 1978 are entitled to the same protection as all other works, i.e., life plus 70 years. However, unpublished works created prior to January 1, 1978, if still unpublished today, became part of the public domain on January 1, 2003 (if they had been published by December 31, 2002, the term would have been extended to December 31, 2047).
3. So what happens when the copyright expires - can anyone do, say, a Mickey Mouse cartoon?
The copyright laws provide the owners of copyright with a bundle of exclusive rights, including the right to copy a work, to create derivative works, and to sell copies of the works. Once the copyright expires, and the work enters the public domain, anyone can exercise any of these previously exclusive rights. So had the “Steamboat Willie” cartoon entered the public domain, anyone could make copies of the cartoon, sell the cartoon, show the cartoon at a film festival, etc., without permission and without having to pay Disney for the rights.
But things get a little tricky because Disney still owns the MICKEY MOUSE(R) trademark and, unlike copyrights, the trademark can be kept alive indefinitely as long as it is in use. So you might be able to create and sell copies of the “Steamboat Willie” cartoon, but you could be stopped from marketing the cartoon as “a MICKEY MOUSE(R) video”. Similarly, when Superman enters the public domain, anyone could reprint the public domain works, but could not create and sell new comic books under the title “SUPERMAN”(R), as that trademark is owned by AOL/Time Warner.
4. What about the original creators - is it fair that the publishers get an extra 20 years of profit from these works without compensating the creators?
Congress actually did consider this issue, and included specific statutes addressing the ability to terminate transfers of rights so that authors could recapture their rights for the extension of copyright. For example, let’s say a cartoonist sells his rights in a comic strip to a publisher, and the copyright, originally set to expire December 31, 2013, now is extended through 2033. Under the Copyright Law, the author (or his heirs) would be entitled to notify the publisher he is terminating the transfer of rights effective January 1, 2014, and would regain the copyright for the remaining 20 years of protection. The statute provides specific guidelines and requirements to accomplish the termination.
5. What does this mean for the Joe Simon case?
Again, there is no real impact on the Joe Simon litigation, as Simon is already attempting to exercise his termination of rights transfer (based on the last term extension which was part of the major copyright law revamp in 1976). The only real impact the Supreme Court decision has is that the party that ends up with the rights in Captain America will be able to enjoy those rights for an additional 20 years.
Michael Lovitz is an associate at the firm of Connolly Bove Lodge & Hutz LLP. Michael practices in the intellectual property law area, concentraing on copyright, trademark, contract and internet matters. Michael is also the author of The Trademark and Copyright Book comic from Sirius Entertainment.
Intellectual Property - copyrights, trademarks and patents. Many know the words, but not everyone understands these rights, and the differences between them. I’m here to help.
<img src="http://www.newsarama.com/lawyer/supreme.jpg" width="190" height="143" align="right">COPYRIGHT EXTENSION UPHELD
As was <a href="http://www.newsarama.com/cgi-bin/ubb/ultimatebb.cgi?ubb=get_topic&f=1&t=000191" target="_blank"> reported</a> on Wednesday, the Supreme Court in a 7-2 ruling upheld the constitutionality of a controversial copyright extension law which passed in 1998, the Sonny Bono Copyright Extension Act (the “CTEA”). But what impact, if any, does this have on the comic book industry?
There has been much speculation and guesswork on the Boards regarding this ruling and its impact, as well as overall confusion amongst the non-lawyers. This article will hopefully explain the ruling, give a brief understanding answer and address what it means for the comic book and related entertainment industries.
First, a brief explanation of the Supreme Court’s ruling. The case was brought by Eric Eldred, who runs an online archive of published works. Eldred sought to overturn the CTEA, which became law in 1998, set the term of copyright protection to be the author’s life plus 70 years. For anonymous works, pseudonymous works, or works made for hire, the term would be the shorter of 95 years from first publication of the work, or 120 years from the year the work was created. The CTEA also extended the length of copyright protection by twenty years for those works which were, as of January 1, 1998, still protected by copyright.
The primary justification for the change in the length of protection was ensure that the length of copyright protection offered to United States authors matched the term of protection granted by the European Union. Given that the exporting of copyrighted works, such as computer games, movies, television shows, books, and comic books, accounts for billions of dollars in revenues each year, there was ample reason to embrace this justification and support the CTEA. The downside, of course, is that the term extension keeps materials out of the public domain for an additional twenty years. Those persons and companies that wish to be able to reproduce the works, such as Eldred, would be disadvantaged.
So Eldred sued, asserting that Congress overstepped their power by enlarging the copyright term for those published works with existing copyrights since the Constitution permits authors to secure protection for “limited Times”, and the extension goes beyond the established “limited Times” for those existing copyright grants. Further, Eldred claimed the CTEA violated the First Amendment’s free speech guarantee.
The District Court, and then the Court of Appeals, rejected these challenges to the CTEA, and the Supreme Court in its ruling agreed. Specifically, the District Court found that the CTEA term, while longer than the prior term, is still limited, not perpetual, and therefore fit within Congress’ discretion. The District Court also held that “there are no First Amendment rights to use the copyrighted works of others.” The Court of Appeals affirmed the decision, finding nothing to suggest a “limited Time” could not be extended for another “limited Time.”
In its ruling, the Supreme Court found that Congress had three times in the past granted enlargements of the duration of copyright protection since the original copyright statute was enacted in 1790, providing a term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Each term expansions has applied to both existing and future works, including the CTEA. The Court also noted that extensions, such as the CTEA, reflect judgments of a kind typically made by Congress; specifically, extending the term of copyright in order to ensure American authors enjoyed the same term of protection in Europe enjoyed by European authors. In doing so, the extension provides incentive for authors to create and disseminate their works. As to the issue of free speech, the Court noted that the purpose of copyright is to promote the creation and publication of free expression.
So what impact does the decision have? In actuality, there is no impact on the current rights under the Copyright law, since the extension which was challenged became effective in 1998. But the issue of duration of copyright protection is an important one for all creators, including comic book creators. For example, had the extension been found unconstitutional, and the term returned to the prior length, a number of very famous works already would have entered the public domain, or would do so during the next decade or so. The most notable was Mickey Mouse, (celebrating his 75th birthday in 2003), but also Superman, Batman and Captain America, to name a few, would not be too far behind.
Let’s look at some questions that have been raised regarding the decision, and duration of protection:
1. What does this mean for works published before 1923?
Actually, all works which were scheduled to enter the public domain at the end of 1997 (i.e., works published during or prior to 1922) did still enter the public domain. As a result, any works first published in the United States prior to January 1, 1923 are in the public domain.
2. Are unpublished works treated differently?
Yes and no. Unpublished works created on or after January 1, 1978 are entitled to the same protection as all other works, i.e., life plus 70 years. However, unpublished works created prior to January 1, 1978, if still unpublished today, became part of the public domain on January 1, 2003 (if they had been published by December 31, 2002, the term would have been extended to December 31, 2047).
3. So what happens when the copyright expires - can anyone do, say, a Mickey Mouse cartoon?
The copyright laws provide the owners of copyright with a bundle of exclusive rights, including the right to copy a work, to create derivative works, and to sell copies of the works. Once the copyright expires, and the work enters the public domain, anyone can exercise any of these previously exclusive rights. So had the “Steamboat Willie” cartoon entered the public domain, anyone could make copies of the cartoon, sell the cartoon, show the cartoon at a film festival, etc., without permission and without having to pay Disney for the rights.
But things get a little tricky because Disney still owns the MICKEY MOUSE(R) trademark and, unlike copyrights, the trademark can be kept alive indefinitely as long as it is in use. So you might be able to create and sell copies of the “Steamboat Willie” cartoon, but you could be stopped from marketing the cartoon as “a MICKEY MOUSE(R) video”. Similarly, when Superman enters the public domain, anyone could reprint the public domain works, but could not create and sell new comic books under the title “SUPERMAN”(R), as that trademark is owned by AOL/Time Warner.
4. What about the original creators - is it fair that the publishers get an extra 20 years of profit from these works without compensating the creators?
Congress actually did consider this issue, and included specific statutes addressing the ability to terminate transfers of rights so that authors could recapture their rights for the extension of copyright. For example, let’s say a cartoonist sells his rights in a comic strip to a publisher, and the copyright, originally set to expire December 31, 2013, now is extended through 2033. Under the Copyright Law, the author (or his heirs) would be entitled to notify the publisher he is terminating the transfer of rights effective January 1, 2014, and would regain the copyright for the remaining 20 years of protection. The statute provides specific guidelines and requirements to accomplish the termination.
5. What does this mean for the Joe Simon case?
Again, there is no real impact on the Joe Simon litigation, as Simon is already attempting to exercise his termination of rights transfer (based on the last term extension which was part of the major copyright law revamp in 1976). The only real impact the Supreme Court decision has is that the party that ends up with the rights in Captain America will be able to enjoy those rights for an additional 20 years.
Michael Lovitz is an associate at the firm of Connolly Bove Lodge & Hutz LLP. Michael practices in the intellectual property law area, concentraing on copyright, trademark, contract and internet matters. Michael is also the author of The Trademark and Copyright Book comic from Sirius Entertainment.