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Tilting at Windmills

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July 22, 2008
By: Kevin Drum

LEFT AND RIGHT COMING TOGETHER....Just to show that I don't always disagree with the Cornerites, I think Mark Krikorian gets this exactly right:

The Wall Street Journal today describes how the firms owning trademarks for Dora the Explorer and other characters popular with children are working night and day to prevent kids from having the characters at their birthday parties. This is one more indication, along with music companies suing their customers, of how absurd intellectual property law has become....It's not my bailiwick, so I don't know how the law should be changed, but for starters "limited Times" should become limited again, and not 120 years, so that work enters the public domain a lot sooner.

I vote for 50 years or during the lifetime of the creator, whichever is longer.

Kevin Drum 2:59 PM Permalink | Trackbacks | Comments (46)

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Comments

The Mouse is a mighty adversary. Don't get your hopes up (unless som campaign finance reform makes our system of officially sanctioned bribery stop functioning).

Posted by: David in NY on July 22, 2008 at 3:02 PM | PERMALINK

Twenty-five years, with no extensions.

Posted by: Brojo on July 22, 2008 at 3:09 PM | PERMALINK

I'm not sure what the beef is. In my experience Dora is freaking everywhere. At my daughter's fourth birthday we had a Dora cake from the grocery store, Dora plastic tablecloth, Dora plates, hats, napkins... in addition to the Dora-themed Candyland game, the Dora Chutes & Ladders game, the Dora concentration game ...

In my life, there's no evidence of a Dora shortage. Rather the opposite, actually.

Posted by: JJO on July 22, 2008 at 3:11 PM | PERMALINK

How about going back to the original 28 years the US copyright system started with?

Posted by: stefan on July 22, 2008 at 3:11 PM | PERMALINK

How about going back to the original 28 years the US copyright system started with?

Posted by: stefan on July 22, 2008 at 3:12 PM | PERMALINK

I studied this quite a bit in law school. It's absolutely insane that copyrights get longer protections than patents, even though in order to qualify for a patent one must show (at least in theory) that the patent is useful and not just being requested in order to be a nuisance. The whole point of the copyright is to encourage people to create. I highly doubt that anyone has ever thought, "well, I could work on this novel/picture/song, but I'll stop getting royalties 21 years from now, so screw it."

Posted by: tom veil on July 22, 2008 at 3:13 PM | PERMALINK

Kevin wrote: "Just to show that I don't always disagree with the Cornerites ..."

Of course it is important for all Sensible Liberal bloggers to show that ...

Posted by: SecularAnimist on July 22, 2008 at 3:15 PM | PERMALINK

We can't arbitrarily set timetables for trademark withdrawal. A time horizon might be acceptable.

Posted by: AJB on July 22, 2008 at 3:16 PM | PERMALINK

Having read through the links, I now see that it's about live costumed performers.

I've got to say that's really, really, really low on my list of things to worry about.

The copyright/trademark issue in general is a huge boondoggle, but maybe we could throw the rights holders a bone and let them keep the costumed characters. Lord knows I don't want them anywhere near my house.

Posted by: JJO on July 22, 2008 at 3:17 PM | PERMALINK

What I want is a Use-It-or-Lose-It component to the law. If I want to buy some copyrighted work and the publisher/owner won't sell it for whatever reason, then it shouldn't be copyright infringement to get that work through other means. Whether it's Song of the South, a Thelonius Monk recording, Ruben and Ed on dvd, some book I read in elementary school, Han shooting first, or whatever: once something exists and is protected, it should only be protected if it's available. And the publisher rights go back to the creator or heirs as soon as the work is unavailable. And then it's up to the creator to sell it, which is harder with some media than others.

I just want the consumer to have some options, rather than it all being in the hands of corporate dorks who think they know what I want better than I do.

Posted by: jon on July 22, 2008 at 3:20 PM | PERMALINK

But Bono, McCartney, and the rest of the musical dregs of society want to make sure their kids never have to work again....

Posted by: Paul on July 22, 2008 at 3:24 PM | PERMALINK

jon, the problem there is how you regulate it - what is a "fair price"? Otherwise, the item will always be available, just priced out of practical reach.

Posted by: royalblue_tom on July 22, 2008 at 3:26 PM | PERMALINK

How about 50 years or 25 years beyond the death of the author, whichever is longer. If the "author" is a corporation, a fixed 50 year limit.

But we also need to cure copyrights on software, and lots of other IP issues.

Posted by: tomj on July 22, 2008 at 3:27 PM | PERMALINK

So the Dora owners think they are Disney now?

Back to the original with one renewal to account for longer lifespans. But let's make it really count, Copyrights (as opposed to Trademarks) can only be held by individuals, not corporations.

Posted by: Martin on July 22, 2008 at 3:34 PM | PERMALINK

Brojo at 3:09 is exactly right.

Except that use in commercials should be banned outright.

(Now who's asking for the moon?)

Posted by: thersites on July 22, 2008 at 3:35 PM | PERMALINK

Several models have suggested that far more limited terms would be optimal: as in 14 years. See, e.g., http://www.rufuspollock.org/economics/papers/optimal_copyright.pdf

Lifetime of the author - and even 50 years - seems too long to me, in light of the huge transactions costs that permission searches entail. I suppose, though, that I'd compromise on something like that if it included a registration requirement, to reduce search costs.

The real problem here is that we can't see easily what we're losing with absurdly long copyright terms: the documentaries and other derivative works that are never made, the books and movies that are not available or easily available.

The current term is absurd, economically irrational in the extreme. (On this point, see either Breyer's dissent in Eldred v. Ashcroft or some of the many papers and posts written about the extension act under review in that case.) Starting at 50 or life of the author, already a term the length of which is not economically justified, is a bad idea in my view.

Posted by: christor on July 22, 2008 at 3:37 PM | PERMALINK

How about making them equal to the life of patents? My only fear is this will make patent terms unreasonably long, however.

Posted by: Mo on July 22, 2008 at 3:38 PM | PERMALINK

royalblue_tom,

I think it can be pretty simply handled: if it's not on the market at fair value, then the holder loses it's copyright protection to the creator. If the creator can't find a new holder to publish the work or publish it on his own, then the protection will go away. Maybe not right away, but soon. Regulations will make it ridiculous, but I still see it as an improvement.

Posted by: jon on July 22, 2008 at 3:46 PM | PERMALINK

See Kevin, if you had written "Just to show that the Cornerites don't always disagree with me" you'd be an arrogantblogger instead of a sensible one, and people would respect you more.

Posted by: thersites on July 22, 2008 at 4:01 PM | PERMALINK

Two points: (1) This is driven, in part, by the need to protect your copyright interest against being diluted and eventually killed by this sort of under the radar use. Yeah, "the system made me do it." In that respect it is different from the RIAA sue your customers nonsense in that it is not merely rational but probably necessary under our IP laws.

(2) Worse than this is the idea that someone--not the actual person, but his or her heirs, successors, what have you--can have a property interest in someone else's personality after that person has died. I like Fred Astaire but I don't see why his widow should have a property right in his image after he dies, even if that stops Dirt Devil from appropriating his likeness to sell vacuum cleaners. The Coors ads showing the ghost of John Wayne in a bar telling knucklehead college students to drink Coors is proof that this sort of law does not save us from that sort of graverobbing, it just redistributes some of whatever wealth the graverobbers can retrieve.

Posted by: Henry on July 22, 2008 at 4:27 PM | PERMALINK

Fifty years or the lifetime of the creator? Kevin forgets that corporations are immortal. And little of the more lucrative copyrighted material is created by an individual any more.

Posted by: Joe S. on July 22, 2008 at 4:37 PM | PERMALINK

Kevin and most of the commenters -- you're mixing apples and oranges. The WSJ article talks about trademark rights. Trademark rights can theoretically last forever, as long a people associate the trademark with a particular source for the good or service. The lifetime-plus-years or limited years format is used for copyrights. A year limitation on trademarks for characters would literally be unprecedented.

Posted by: Tom in Houston on July 22, 2008 at 4:42 PM | PERMALINK

Thanks Tom from Houston for making that distinction. As absurd as copyright laws have gotten, it is wrong to confuse them with trademarks. As long as the legal owner of the "Chevrolet" brand keeps selling Chevrolet vehicles, they should have exclusive right to call their vehicles Chevrolets.

This gets slightly complicated when you get into things that are both copyrighted and trademarked. For example, there are comic strips whose early years have passed into public domain, but which are still running now, nearly a hundred years later. So if a publisher wishes to publish a collection of these strips, the publisher can do so free and clear--but must pay the trademark holder if the book title contains the still active trademarked name. The same thing will happen to the Dora the Explorer TV shows 120 years from now, in the unlikely event that Dora the Explorer remains an active trademark until then.

Posted by: RWB on July 22, 2008 at 4:57 PM | PERMALINK

Thanks Tom - I was too quick with the keyboard.

Posted by: christor on July 22, 2008 at 5:09 PM | PERMALINK

It's all well and good to rant about copyright terms, but how do you suppose the Nick Jr. lawyers will feel when a guy in an unauthorized Spongebob costume molests the kids at a birthday party?

Use all the licensed merchandise you want, but a person in a costume, fairly or not, is seen as a representative of the company. That's why adults can't wear costumes at Disneyland.

Posted by: skeptic on July 22, 2008 at 5:10 PM | PERMALINK
Just to show that I don't always disagree with the Cornerites, I think Mark Krikorian gets this exactly right:

While I am sympathetic to the general view that IP law needs rethought, I think Krikorian is far from exactly right: indeed, he makes a mistake about on the order of McCain's "Iraq-Pakistan" border gaffe: he points to a perceived abuse of trademark law, and suggests that the solution is to respect the "limited term" provision of the Patent and Copyright clause.

The main problem with this, of course, is that trademarks exist to prevent commercial deception and are grounded in the Interstate Commerce Clause, not the Patent and Copyright Clause; trademarks aren't based on creation but on use in trade, and aren't subject to a Constitutional mandate of limited term even in theory.

Now, if you want to complain about the term of copyrights or patents being inconsistent with the Patent and Copyright Clause, there is an interesting debate to be had there, and particularly in the case of copyrights, I'd be inclined to agree—my personally preferred copyright term reform is to provide a 10-15 year "free" term, and after that allow an extension for up to 50 years. However, to secure the extension, the creator must declare a stated value for the copyright, and pay an annual ad valorem tax based on the declared value, and if any person or combination of persons tenders the declare value for the purpose of transferring the work into the public domain, the creator is obligated to either (1) accept the tender, transferring the work into the public domain, or (2) increase the declared value and pay retroactive taxes on the amount of the increase with an additional late payment penalty.

You could do something similar for patents, with no or very short free period and the same full period as currently allowed with declared value and tax provisions as described above for copyrights.

Posted by: cmdicely on July 22, 2008 at 5:13 PM | PERMALINK
A year limitation on trademarks for characters would literally be unprecedented.

More importantly it would be literally a license for fraud.

Posted by: cmdicely on July 22, 2008 at 5:15 PM | PERMALINK

"lifetime of the creator" is pretty dubious. I'm sure they brought in the "plus X years" to prevent someone being killed to free up the rights. And it's not unthinkable that people could be kept alive indefinitely at some point going forward (think a better job of freezing walt, and doing so just before he died). Better to just have a fixed term.

But obviously, it's to provide for the creator's children. But it's not like a fixed term doesn't cover this.

Posted by: royalblue_tom on July 22, 2008 at 5:31 PM | PERMALINK

jon, what about when the holder is the creator?

Posted by: royalblue_tom on July 22, 2008 at 5:34 PM | PERMALINK

To the law student who says it's "insane" that patents are for shorter terms than copyrights (much shorter I would add), you have no idea what you are talking about. A patent is hundreds of times more powerful than a copyright; it protects a lot more than a copyright. A patent literally takes ideas, and broad ranges of technology with those ideas, out of the public domain for 20 years, whereas a copyright only takes expression (and not the idea itself) out of the public domain.

Now, I do agree that copyrights are way, way longer than they should be and agree with Kevin's proposal.

I also note that Mark Krikorian is confusing copyrights and trademarks -- very different things. Trademarks are abused quite a bit more in my opinion than any other IP (saying a lot given the abuse of hte patent and copyright systems), but that's a discussion for another day.

Posted by: IP Lawyer on July 22, 2008 at 5:39 PM | PERMALINK

Of course, an intellectually honest theory of the meaning of the phrase "limited term" would be welcome, if it were employed by legislators and justices. As would one for the phrase "interstate commerce". Oh well.

Posted by: Will Allen on July 22, 2008 at 5:57 PM | PERMALINK

If the creator is a corporation, I would make it 30 years.

Think of this as an investment. Assume a fairly low required rate of return of 10% (if investors demand a higher rate of return, than distant cash flows are worth even less). Assume that the property gives a constant cash flow over time (though most intellectual property will be front-loaded).

Present value of a steam of $100 per year payments for first 30 years: $862

Ok, PV of $100 per yr for first 50 yrs:
$895, a $33 difference - less than 5%. Not enough to substantially discourage production of the original work.

PV of $100 per yr for first 100 years:
$900. That's right, the last 50 years taken together are only worth 5 bucks in present value terms.

So Star Wars (1977) would be public domain by now, but Empire would not.

Posted by: Measure for Measure on July 22, 2008 at 6:01 PM | PERMALINK

Trademark confusion aside, as I understand it, if it's not a work for hire, the duration under copyright could be more than 120 years, i.e., the duration of the author's life plus seventy years.

In other words, if you wrote your masterpiece at age 20 and you died at 95, the work would be protected under copyright for 145 years. If this law were in effect in the 19th century it's possible that works written during the Civil War would still not be in the public domain in 2008. Which is, you know, insane. I don't see any reason not to revert to what it was, 28 years with a 28 year extension.

Were he actually commenting about copyright, I doubt many conservatives agree with Kirkorian. Usually, while they proclaim the myth of meritocracy as proof of the deserved wealth of our upper classes, the want to provide endless, unmerited wealth for their heirs, be they familial or corporate.

Posted by: R. Porrofatto on July 22, 2008 at 7:14 PM | PERMALINK

I was clumsy with copyright and trademarks as well, but since each set of rules concern similar things (intellectual property,) the standard I want followed is the same. And that is that the creator should get the right to profits from the creation, the public should have a right to pay for it, and corporations should work to achieve both ends without holding either the creators or the public hostage by withholding the intellectual property. Same goes for patents, which are supposed to be for "useful" things: why should the government protect the right to withhold useful things? What is that about? If the patent is for something useful, then the protection should have a social contract that that useful thing should be available.

Maybe my suggestion is more ideological than practical. But at least it's based on an ideal that allows for commerce and the common good to coexist.

Posted by: jon on July 22, 2008 at 7:30 PM | PERMALINK
I was clumsy with copyright and trademarks as well, but since each set of rules concern similar things (intellectual property,) the standard I want followed is the same.

While they are both part of the subcategory of intangible personal property known as "intellectual property", trademarks and copyrights aren't similar things in most meaningful senses of the words. Copyright protection, like patent protection, exists to reward creators and therefore encourage creation of works of public utility. Trademark protection exists to prevent confusion among commercial offerings.

Posted by: cmdicely on July 22, 2008 at 7:48 PM | PERMALINK

Since this has gotten to semantics, I agree with what a trademark is and what a copyright is and what a patent is. But I also would suggest that that legal protection should be for things that are actually in the public and not for things that are merely held on to, whether those things are logos, recordings, films, characters, useful ways to fill pizza orders, or the sound of a motor.

Posted by: jon on July 22, 2008 at 8:23 PM | PERMALINK

Kevin

How long is the life of a creator when its a corporation with no lifetime. For example, Mattel just got a judgment against the human designor of Bratz giving it ownership of his designs because he created them under Mattel's employ?

Original intellectual property law didn't take this into account. And frankly, if I had created a cartoon character, I wouldn't want any idiot dressing up like my character and interacting with kids, and thereby possibly damaging or misrepresenting the character I created.

Posted by: pj on July 22, 2008 at 8:31 PM | PERMALINK

I guess when Left and RIght Agree, the reason is that neither side much know what they are talking about.

Yes! Copyright terms are too long, although even Larry Lessing seems to have given up the immediate fight of changing that one. (And, by the way, a corporation can be the owner of a copyright.)

There are a lot of problems with patents, although I am not certain that the length of the patent term is a particular difficulty in most situaqtions.

Trademarks, as mentioned above a couple of times but there seems to be some above that don't believe it, are completey different. The ideal trademark is worth NOTHING when it is created. Because it is completely arbitrary and refers to nothing. As time goes on and the products covered by the trademark become known to be good products causing the trademark reputation to grow, the mark becomes worth more becuase it associates the products or the manufacturer with the mark, causing people to purchase products because they carry the mark.

Now...if you want to tell me that GE shouldn't be allowed to sell its well regarded RCA trademark so the purchaser can use it to fool people into thinking that the purchaser's TV sets really come from RCA, I'll agree with you. But that's another matter.

Posted by: Barry Bayer on July 22, 2008 at 8:56 PM | PERMALINK

Will Allen asking for "intellectual honesty" is like George W. Bush insisting that just cause be shown before invading a sovereign nation. Just fucking laughable.

Posted by: noel on July 22, 2008 at 10:24 PM | PERMALINK

Unfortunately, the Berne Convention, which the US is a signatory of, requires copyright to extend fora minimum of the life of the author plus 50 years after the author's death.

Signed and ratified.

Posted by: Paul Camp on July 22, 2008 at 10:50 PM | PERMALINK

Trademark law already has an active usage component to it -- and it tends to be dealt with in civil law exclusively.

Berne Convention be damned. Just because the Europeans sold out to Big Business before the USA does not mean we have to be in their thrall for the rest of history. Copyright should be limited: free for the first 14 years as long as the product is for sale. The minute a book goes on the remainder shelf, the publisher has lost the copyright. Renewals should be charged a large fee every seven years for up to 56 years total. Corporations are not capable of producing any intellectual property and the United States should be forbidden to allow a corporation to own any copyrights or patents.

Trademarks are fine, but the original owner of the trademark must be financially responsible for all consumer frauds perpetrated by any licensee. If GE wants to sell its good name to Wal*Mart for crappy small appliances (even though Black and Decker should be given about a billion dollars for GE trying to sell the name twice) they should be on the hook for every cheap piece of crap that comes out with the GE name on it.

Posted by: freelunch on July 22, 2008 at 11:47 PM | PERMALINK

Life of the human author plus twenty. "Life of the author" because it's wrong to make authors watch while their creations are abused. "plus twenty" because it's ghoulish to jump on the property the minute the author dies. "Human" because corporate persons are immortal, and have way too many rights already.

In any case, they're usually the entities that today, under present copyeight law, are grabbing the copyright and forcing the living human author to watch as, within his lifetime, his creations are abused to maximize return on capital.

Posted by: derek on July 23, 2008 at 6:29 AM | PERMALINK

Life of the human author plus twenty. "Life of the author" because it's wrong to make authors watch while their creations are abused. "plus twenty" because it's ghoulish to jump on the property the minute the author dies. "Human" because corporate persons are immortal, and have way too many rights already.

In any case, they're usually the entities that today, under present copyright law, are grabbing the copyright and forcing the living human author to watch as, within his lifetime, his creations are abused to maximize return on capital.

Posted by: derek on July 23, 2008 at 6:29 AM | PERMALINK

The complication with something like Dora is that there might be a creator, but then there are individual episodes with individual writers and artists. With something that is clearly the product of an entertainment system, should it be 50 years or the life of the person who first drew and imagined Dora?

I'm not arguing against copyright legislation at all. I think author's life plus 10 years is pretty good (or fifty years tops if the author dies at something like 25), but cases like Dora aren't so cut and dry once you get past first glance.

Posted by: The Critic on July 23, 2008 at 1:24 PM | PERMALINK
Unfortunately, the Berne Convention, which the US is a signatory of, requires copyright to extend fora minimum of the life of the author plus 50 years after the author's death.

Signed and ratified.

Fortunately, in international law, treaties may be repudiated and, as far as they are binding within US law, they can be expressly overturned by subsequent statute even if they haven't been repudiated, so the Berne Convention does not substantively constrain the options of the U.S. to change its policy.

Posted by: cmdicely on July 23, 2008 at 2:57 PM | PERMALINK
The complication with something like Dora is that there might be a creator, but then there are individual episodes with individual writers and artists.

This isn't much of a complication. Where the original work is concerned, there is a creator. Insofar as the subsequent derivative works reuse the original work, they are using work of that creator; insofar as they are a novel creative works on their own, they have their own creator. If one is using only the something protected as part of the original work, it is the copyright on that work that matters, if someone is using some part of the later work, it is the copyright on the later work that matters, and if they are using parts of both, they both matter.

Posted by: cmdicely on July 23, 2008 at 3:01 PM | PERMALINK
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