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[wildthing423]

March 7, 2012
Mark Bellamy LL.M
SJD candidate 2013


Copyrights in the digital age:


This article was originally written by me for visual artists, online gallery and forum owners and operators.  Therefore, it applies to the "GOLDEN AGE" forum for digital comics as well. This forum is ...by legal definition... a repository, a digital museum, a digital library and gallery.  What I write here is not legal advise nor should it be construed as such.  It is a best practices approach based upon my education and teaching. It is a compilation of research into copyright law as an educator and artist, and how I have had to deal with it when making my art and , or when working for attorneys and publishing houses.

Most of the law, whether statutory or enacted by juris prudence judicial decision,  that applies to intellectual property will never apply to this forum or any other forum like it. The issues at hand here involve public display and the making available for download of particular materials that include textual reference and images previously published and owned by another.


Issues at hand:
Copyrights generally and specifically.
copyright infringement
trademarks .. maybe but unlikely
Public domain



I presume that we are all adults here and contain varying degrees of forthright...ness with in our personalities.  So, we know not to lie, cheat , steal or to appropriate through conversion[conversion...the civil equivalent to criminal fraud generally]...


We all are to some degree, familiar or should be familiar with what copyrights are and how they apply in the United States and other countries that have joined the Berne Convention. I really do not want to rehash this subject, but it seems that no matter how well explained,  someone still tries to circumvent the regulations and rules we all must adhere to.  So , to a degree,  I must provide you all with the necessary blah...blah   blah verbiage.

What is copyright in the United States?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
http://www.copyright.gov/help/faq/faq-general.html and here http://www.copyright.gov/ and here as well specifically about duration http://copyright.cornell.edu/resources/publicdomain.cfm

and copyright in the UK: http://www.copyrightservice.co.uk/copyright/p10_duration.

Search theses links about other related issues like fairuse here: the copyright questions and answers blog..http://copyrightanswers.blogspot.com/ and these 2 from SU LAW http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/ and http://www-sul.stanford.edu/cpyright.html.


What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."

How is a copyright different from a patent or a trademark?
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”


For the most part, the business you conduct here will never overlap into trademark and patent law.  Not to say that it cannot apply, just that it most probably will not.


and again from

BYU copyright 101 http://lib.byu.edu/departs/copyright/tutorial/module1/page4.htm

Basically, anything you need to know can be understood from the information above.  Some of it may actually need a legal philosophical discussion with an analysis of a particular case law and opinion and if necessary, I will entertain this, but only if it becomes necessary for your continued understanding.


So, to the best of your ability, search and check the copyrights on everything you wish to post and make available and when in doubt leave it out and seek further opinion.  Better to err on the side of caution.

this is a very good blog about public domain material  I urge you all to read and try to understand that which is contained within this link and all the others
http://www.publicdomainsherpa.com/index.html and Every legal scholar has a different opinion but this is fairly easy to understand as well http://copylaw.com/new_articles/PublicDomain.html.


The thing I most want to talk about here is what legal scholars call "copy-fraud"
From wikipedia:
http://en.wikipedia.org/wiki/Copyfraud "Copy fraud is a term coined by Jason Mazzone (Associate Professor of Law at Brooklyn Law School) to describe situations where individuals and institutions illegally claim copyright ownership of the public domain and other breaches of copyright law with little or no oversight by authorities or legal consequence for their actions."

Lots of organizations and  people do things like this i.e. republish a public domain comic and change nothing about it and claim copyright over something which has no copyright protection.

Again from the same above wiki link: "Mazzone argues that copy fraud is usually successful because there are few and weak laws criminalizing false statements about copyrights and lax enforcement of such laws and because few people are competent enough to give legal advice on the copyright status of commandeered material.

In the U.S. Copyright Act, only two sections deal with improper assertions of copyright on public domain materials: Section 506(c) criminalizes fraudulent uses of copyright notices and Section 506(e) punishes knowingly making a false representation of a material fact in the application for copyright registration.[1]:1036 Section 512(f) additionally punishes using the safe harbor provisions of the Digital Millennium Copyright Act to remove material the issuer knows is not infringing. But apart from these two sections, the U.S. Copyright Act does not provide for any civil penalties for claiming copyrights on public domain materials, nor does the Act prescribe relief for individuals who refrain from copying or pay for copying permission to an entity that engages in copy fraud.

Section 202 of the Australian Copyright Act 1968, which imposes penalties for 'groundless threats of legal proceedings', provides a cause of action of any false claims of copyright infringement. This should include false claims of copyright ownership of public domain material, or claims to impose copyright restrictions beyond those permitted by the law.

Legal scholar Paul J. Heald, in a 1993 paper published in the Journal of Intellectual Property Law,[2] explored the possibility that payment demands for spurious copyrights might be resisted under a number of commerce-law theories: (1) Breach of warranty of title; (2) unjust enrichment; (3) fraud, and (4) false advertising. Heald cited a case in which the first of these theories was used successfully in a copyright context: Tams-Witmark Music Library v. New Opera Company.[3] In this case

    [A]n opera company purchased the right to perform the opera The Merry Widow for $50,000 a year. After a little more than a year of performances, the company discovered that the work had passed into the public domain several years before due to a failure on the part of the copyright holder to renew the copyright. It ceased paying royalties, and after being sued by the owner of the abandoned copyright, counterclaimed for damages in the amount paid to the owner on a breach of warranty/failure of consideration theory. The trial court awarded the opera company $50,500 in damages, and the court of appeals affirmed the judgement, finding that The Merry Widow "passed, finally, completely and forever into the public domain and became freely available to the unrestricted use of anyone....New Opera's pleas of breach of warranty and total failure of consideration were established, and by undisputed proof."

 Examples

    In 1984, Universal Studios sued Nintendo to stop them from profiting on their new Donkey Kong arcade game, on the basis that Donkey Kong was too similar to King Kong, which they owned. In the end, Nintendo's lawyers showed that Universal had argued against RKO General in 1975 that King Kong was in the public domain. Nintendo also won the appeal, a counterclaim, and a further appeal.

    The American Antiquarian Society web site states that images of its archived printed materials from the 18th and 19th centuries (now automatically in the public domain due to age) "must be licensed by the society in consequence of its proprietary rights."

You can find people all over the Internet , like flickr for instance, where the scan in a public domain image and they claim absolute copyright in the images. These kinds of things cannot survive any claim as they lack originality, they lack even minimal creativity, they cannot even be considered transformative and derivative thereby making a claim for "transformative new creative works."

I hope that this helps in some fashion and I will discuss this further if necessary.


be well all.....


Mark

P.S.

Title 17 of the United States Code


§ 506. Criminal offenses6

(a) Criminal Infringement. —

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

(2) Evidence. — For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

(3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution —

(i) the copyright owner has a reasonable expectation of commercial distribution; and

(ii) the copies or phonorecords of the work have not been commercially distributed; or

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture —

(i) has been made available for viewing in a motion picture exhibition facility; and

(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.

(b)(b) Forfeiture, Destruction, and Restitution.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.

(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

(d) Fraudulent Removal of Copyright Notice. — Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.

(e) False Representation. — Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.

(f) Rights of Attribution and Integrity. — Nothing in this section applies to infringement of the rights conferred by section 106A(a).
§ 507. Limitations on actions7

(a) Criminal Proceedings. — Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.

(b) Civil Actions. — No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
§ 508. Notification of filing and determination of actions

(a) Within one month after the filing of any action under this title, the clerks of the courts of the United States shall send written notification to the Register of Copyrights setting forth, as far as is shown by the papers filed in the court, the names and addresses of the parties and the title, author, and registration number of each work involved in the action. If any other copyrighted work is later included in the action by amendment, answer, or other pleading, the clerk shall also send a notification concerning it to the Register within one month after the pleading is filed.

(b) Within one month after any final order or judgment is issued in the case, the clerk of the court shall notify the Register of it, sending with the notification a copy of the order or judgment together with the written opinion, if any, of the court.

(c) Upon receiving the notifications specified in this section, the Register shall make them a part of the public records of the Copyright Office.
§ 509. [Repealed]8

[JVJ]

Well said, Mark,
but it fails to address completely the notion of the source of the image. (It doesn't "completely fail" but "fails to completely" - two very different assertions on my part.)

If I scan an image that is in the public domain, and I clean it and sharpen it and color correct it, I am, I believe, materially altering it - making a transformative new work. Thus, "MY" scan can be copyrighted. Anyone else is free to go back to a public domain source and make their own scan of that image, but I don't believe that they are allowed to just copy mine and use it.

True or False?

Thanks for making a complex subject at least approachable.

Peace, Jim (|:{>

[narfstar]

I believe that the topic came up in a previous forum. I do not know enough key words to find it specifically. But I think that there have been ruling against you assertion Jim. I am not saying that you should not have some claim, just that I think there have been rulings that unless you actually alter the original not just restore to like original you would not be covered. So restoration to original like condition does not constitute a new copyright. If someone knows where the case has come up could you please post.

[wildthing423]

Well said, Mark,
but it fails to address completely the notion of the source of the image. (It doesn't "completely fail" but "fails to completely" - two very different assertions on my part.)

If I scan an image that is in the public domain, and I clean it and sharpen it and color correct it, I am, I believe, materially altering it - making a transformative new work. Thus, "MY" scan can be copyrighted. Anyone else is free to go back to a public domain source and make their own scan of that image, but I don't believe that they are allowed to just copy mine and use it.

True or False?

Thanks for making a complex subject at least approachable.

Peace, Jim (|:{>

ORIGINALITY is the chief word of the day.
(a) Article I, 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity
http://www.publicdomainsherpa.com/derivative-work.html I posted this link above but it gives a beginning to an understanding.  Anyone can use a public domain work without obtaining permission, but no one can ever truly own it.


Jim,


It addresses the issue but forces me to save time and space and you to go read.  In order for someone to claim copyright It must be fixed in a tangible format, it must be an originial work worthy  of this claim.  Unless you completely redraw, paint or re- design and create another work that can be categorized as a a trans-formative use then only those things that you may have added can be copyright protected.  I will gather some notes and post them.  I am trying to save space and time as the nature of copyright , patent and trademark law is a pain and quite convoluted but I will attempt to offer examples and some small notes for everyone's clarification. Sweat of the brow alone  will not grant copyright.

Mark

[wildthing423]

Well said, Mark,
but it fails to address completely the notion of the source of the image. (It doesn't "completely fail" but "fails to completely" - two very different assertions on my part.)

If I scan an image that is in the public domain, and I clean it and sharpen it and color correct it, I am, I believe, materially altering it - making a transformative new work. Thus, "MY" scan can be copyrighted. Anyone else is free to go back to a public domain source and make their own scan of that image, but I don't believe that they are allowed to just copy mine and use it.

True or False?

Thanks for making a complex subject at least approachable.

Peace, Jim (|:{>

Jim,

removing dust bunnies and crinkles  and the like would not qualify as a new and original trans-formative work.
Reprint editions of publications that are in public domain are not subject to copyright in Canada, the USA, the EU, and most (if not all) of the world. No copyright can be claimed on the scanning of a public domain work regardless of whether the original scanned is in printed or manuscript form.




Mark

[narfstar]

What about removing color? Several companies reprinted GA comics in black and white. Would those be PD also?

[wildthing423]

What about removing color? Several companies reprinted GA comics in black and white. Would those be PD also?

As I said and or implied earlier, U.S. Copyright law exists in order to encourage artistic progress . It encourages the creation and distributation or new creative works of art fixed in an original format. Simply taking a previously printed photo, text or painting and illustration that lasped into public domain and running them through a series of actions or filters in photoshop, corel paintshop pro or the like and bleeding out the color does not provide copyright protection. It still fails on the folowing constitutional and common law juris prudent decisions pertaining to:
Originality
the purpose and character of the use,
the nature of the copyrighted work,
the amount and substantiality of the portion used, and
the effect on the potential market for or value of the protected work.

Running something through photoshop does not create or recreate a new and original piece. Furthermore, they have not changed the purpose and character of the use. To simply change the colors or bleed out the color is not sufficient to grant a transfornation and a new and originial work. In a similar venue, a visual artist does not garner copyright in their work by painting or drawing an exact replica of someone elses work.  Sweat of the brow and or hard work does not get you copyright.  Just because ga did this does not make it legal, but no one challenges them which is the case with all people claiming copyright in works that are in the public domain. From an ip attorney "This is easily seen in the case of a straightforward fine art photograph – the photographs ‘purpose and use’ will be exactly the same as a painting copied from it (and vice versa) – ie. to hang in a gallery and be seen and bought by the public as an art-object."

SEE Gaylord vs the United States http://www.photoattorney.com/wp-content/uploads/2010/02/Photograph-of-Sculpture-on-StampFair-Use.pdf the U.S court said: I quote directly


  "  Fair use is a mixed question of law and fact. Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 560 (1985). Because “the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.” Id. at 560 (citation omitted). Section 107 requires courts to consider four nonexclusive factors when evaluating fair use:

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    35 U.S.C. § 107. Each factor is “to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 577.

Significantly, the Federal Court found that the stamp does not reflect any “further purpose” than The Column.  The Court compared the stamp to Koons’ use of  Blanch’s photo in  Blanch v. Koons.  There, Koons, an artist, incorporated a copyrighted photograph of a woman’s feet adorned with glittery Gucci sandals into a collage “commenting on the ‘commercial images . . . in our consumer culture.’” 467 F.3d 244, 248 (2d Cir. 2006). The court determined that Koons’ use was fair use in part because his collage was transformative. Id. at 252-53.  The Court reasoned that the collage and the photo had “sharply different” purposes and that the collage was intended to be a “commentary on the social and aesthetic consequences of mass media.” Id. Such transformation of a copyrighted work into a larger commentary or criticism fall squarely within the definition of fair use.” In Gaylord, however, although the stamp altered the appearance of The Column by adding snow and muting the color, those alterations did not impart a different character to the work.   The Federal Court also found that the USPS’ use of the stamp was commercial because it received $17 million dollars in sales from the stamp, which indicated that the use was not a fair use.

As to the amount of the work used in the photograph, the Federal Court held that the number of the soldiers in the stamp (14 of 19) weighed against fair use.  Further, the Court found that The Column constituted the focus (“essentially the entire subject matter of the stamp”), which supported its finding against fair use.  But the Court found one factor in favor of fair use, because the stamp has not and will not adversely impact the sculptor’s efforts to market derivative works of The Column. “Someone seeking to take a photograph of The Column or otherwise create a derivative work would not find the stamp to be a suitable substitute for The Column itself. ”  In total, however, the Federal Court found that the factors heavily weighed against a fair use of the sculpture."

So while people are claiming copyright does not mean it is real or legal.  See my replies to the above posts to jim.


Mark

[bchat]

What about removing color? Several companies reprinted GA comics in black and white. Would those be PD also?

SEE Gaylord vs the United States http://www.photoattorney.com/wp-content/uploads/2010/02/Photograph-of-Sculpture-on-StampFair-Use.pdf the U.S court said: I quote directly

Your example does not address narfstar's question since "Frank Gaylord vs The United States" is in regards to the USPS infringing on a work with a current & valid Copyright.  It does not address (for example) a comic book publisher taking a Public Domain story, removing the color, then (possibly) claiming a Copyright on the B&W images.

[narfstar]

I think the comments earlier in the paragraphs clarifies that just removing color in photoshop, etc does not fundamentally change the original work so it would in turn be pd. So all those b&w reprint books that popped up in the 80's would be fare game for this site.

[wildthing423]

What about removing color? Several companies reprinted GA comics in black and white. Would those be PD also?

SEE Gaylord vs the United States http://www.photoattorney.com/wp-content/uploads/2010/02/Photograph-of-Sculpture-on-StampFair-Use.pdf the U.S court said: I quote directly

Your example does not address narfstar's question since "Frank Gaylord vs The United States" is in regards to the USPS infringing on a work with a current & valid Copyright.  It does not address of (for example) a comic book publisher taking a Public Domain story, removing the color, then (possibly) claiming a Copyright on the B&W images.

Actually it does, as do all trans-formative and fair use issues. in order for "ANY"  claim of transformative use and fairuse as a defense, you are claiming that the use is new and also a new creative use or work. anything that is substantially similar and or identically similar or strikingly similar that lends nothing to the work to create a new work under the definition of the various laws and codes is not entitled to claim copyright. In the above captioned case it illustrates the use of the multi-pronged format advanced to define a new and creative work that bars any claim of copyright infringement and allows "SOMEONE" who is not the copyright HOLDER to claim copyright in a work created by and copyright owned by another. It is this way to keep the public domain...well...the public domain..and avoid a likely hood of confusion.  The problem here in these situations for the 40 years I have been dealing with it is that people believe that if they change a work by adding a color or deleting a color or bleeding out a color or changing a few words that they have changed it  according to the letter of the law....I mean, It's changed isn't it? but it is a hard job for jurists[legal scholars] judges and lawyers to determine tests  like the two different tests for substantial similarity, "fragmented literal similarity" and "comprehensive non-literal similarity", must be applied as well as the four factored test named above.  This is mostly if not always about greed and a way for someone who is uncreative to make money off of another.  In order for anyone to claim a copyright it must be original, fixed in a tangible format , survive the test for minimal creativity and NOT NOT NOT be SUBSTANTIALLY SIMILAR " just handling a product and messin around with a scanner does not convey copyright. HARD work or "SWEAT OF THE BROW" does not give copyright:
sweat of the brow and or mechanical reproduction:

Feist_Publications_v._Rural_Telephone_Service

Bridgeman v.  Corel..."Slavish copying" is inherently uncreative and cannot confer copyright."  

Well, no matter what anyone believes, I have participated in more copyright complaints then you can shake the proverbial stick at and GA has no legal basis to claim copyright.  I am trying to encourage people here to learn some about it themselves, hence my publishing  of enough information for the average joe to figure the basics out on their own.  Not for me to do it for them...I do this as a courtesy and because I can and because I love the forum.


Mark

[bchat]

I think the comments earlier in the paragraphs clarifies that just removing color in photoshop, etc does not fundamentally change the original work so it would in turn be pd. So all those b&w reprint books that popped up in the 80's would be fare game for this site.

From http://www.publicdomainsherpa.com/compilation.html:
"A compilation is a work created by selecting, organizing, or arranging previously existing material in such a way that the resulting work as a whole constitutes an original work of authorship.

The B&W reprint books "as a whole" would not be "fair game" because they still carry their own Copyright.

Actually it does ...

I don't agree that it does because the issue at-hand is "do B&W reprints of color PD stories have Copyright protection?"  Gaylord vs The USA deals with the image used by the USPS of a Copyright-protected work owned by Gaylord. 

"As a whole", publications like JVJ's magazine or AC Comics "Men of Mystery" title carry their own Copyrights, since "minimal creativity" is used in the selection & arrangement of the material they reproduce.  Someone might say that changing a PD image from color to B&W (which could be viewed as an artistic choice that "transforms" the image and not just a cheap way of reproducing it) does not meet the criteria for Copyright protection, but have the Federal courts ever said the same thing?

[wildthing423]

I think the comments earlier in the paragraphs clarifies that just removing color in photoshop, etc does not fundamentally change the original work so it would in turn be pd. So all those b&w reprint books that popped up in the 80's would be fare game for this site.

From http://www.publicdomainsherpa.com/compilation.html:
"A compilation is a work created by selecting, organizing, or arranging previously existing material in such a way that the resulting work as a whole constitutes an original work of authorship.

The B&W reprint books "as a whole" would not be "fair game" because they still carry their own Copyright.

Actually it does ...

I don't agree that it does because the issue at-hand is "do B&W reprints of color PD stories have Copyright protection?"  Gaylord vs The USA deals with the image used by the USPS of a Copyright-protected work owned by Gaylord.  

"As a whole", publications like JVJ's magazine or AC Comics "Men of Mystery" title carry their own Copyrights, since "minimal creativity" is used in the selection & arrangement of the material they reproduce.  Someone might say that changing a PD image from color to B&W (which could be viewed as an artistic choice that "transforms" the image and not just a cheap way of reproducing it) does not meet the criteria for Copyright protection, but have the Federal courts ever said the same thing?

No they do not...However, let me quantify your statement and qualify it as well.   They carry their own copyright only because every time something , regardless of what that something is, is set in a fixed and tangible format that can be perceived it garners a copyright because of the underpinnings of the constitution.  No one has challenged it yet.  But the comics you allude to are identical in that they are inherently a b&w "copy" of the original. Even were they to add a few words here and there and add a border it is still a mechanical reproduction of the original.  You can disagree with me all you want but the analysis and juris prudent decisions are made by and enforced by the law makers and overseers of the law.  someone may say that draining out the color is artistic...but it is not an original work.  for some reason you refuse to acknowledge  the rules of the court, the way the constitution is written and the way it is judicially applied.

this is the way it stands and no matter of disagreement can change it...if you disagree take it up with congress and senate and the federal courts, I am only a tool educated by them.

a work must be original....nothing can change it, that is it..a copy of an original is not a creative original work  this is the first and foremost thing that must apply.
It does not matter whether the works have lapsed into the public domain or are under current regime standards.  It is therefore nothing more then that.  an example of this is colleges and universities photocopying things for study packs, many colleges have been charged with copyright infringement and facilitating copyright infringement, how ever they are just black and white copies of the originals.
again it matters not if it is under current law or if the item is or falls into the public domain.  you cannot claim copyright in someone elses work.

then , they will consider the nature and character of the original work, public domain or not, and apply it to the claimed new work and it would fail a claim of copyright on this count as well. then by definition it fails on the amount that is substantially similar. Further, it would snowball all the way down as the issues we speak about are for a commercial advantage.  Also, If it were me working on this, I would move for summary judgement as the claimed defense is "De minimis"  De minimis is a legal term that can be applied both ways, the use is De minimis or the claimed defense is De minimis.  either way the trial is over in 30 minutes or less and I get paid by the opposing party. then I move for an injunction and have everything destroyed............................................


Any way BChat, I am not trying to argue here, though by definition all of law is argumentative, I am just offering you what I have learned through experience and education, and the effective application of them both.  Do you know how I obtained these degrees, well , in the beginning, I was offered a scholarship to an MFA program at UoPENN years ago, and I was in the hospital for a long while and could not get into the program as by the time I left the hospital it closed , but there was an opening in the dual degree program for an MFA and a jd or LL.M.  so I accepted.  I am an artist first and foremost and I have been taken to court more then carter has liver pills and have never lost an infringement defense.   NEVER  


Let me codify this, being for a commercial purpose has no real bearing as something can be a fair use even though it is for a commercial purpose  and or enterprise.  The Ninth Circuit Court of Appeals decided an infringement case and part of their decision about fair use and testing for it is quoted here:

 "Elvis Presley Enterprises, Inc. et. al. vs. Passport Video et. al...This analysis should not be “simplified with bright-line rules,” but instead requires a “case-by-case analysis.” Los Angeles News Serv. v. CBS Broad., Inc., 305 F.3d 924, 938 (9th Cir. 2002), amended by 313 F.3d 1093 (2002) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994)). Contrary to the divide and conquer approach taken by the dissent, we may not treat the factors in isolation from one another. “All are to be explored, and the results weighed together, in light of the purposes of copyright.” Los Angeles News Serv., 305 F.3d at 938. See also Kelly v. Arriba, 366 F.3d 811, 822 (9th Cir. 2002)."*** "...And the degree to which the new user exploits the copyright for commercial gain—as opposed to incidental use as part of a commercial enterprise—affects the weight we afford commercial nature as a factor."


So, It really doesn't matter whether a use is commercial nor created from public domain[my emphasis] what matters is everything taken in whole and in part no one thing isolated one from the other.

[wildthing423]

I think the comments earlier in the paragraphs clarifies that just removing color in photoshop, etc does not fundamentally change the original work so it would in turn be pd. So all those b&w reprint books that popped up in the 80's would be fare game for this site.

From http://www.publicdomainsherpa.com/compilation.html:
"A compilation is a work created by selecting, organizing, or arranging previously existing material in such a way that the resulting work as a whole constitutes an original work of authorship.

The B&W reprint books "as a whole" would not be "fair game" because they still carry their own Copyright.

Actually it does ...

I don't agree that it does because the issue at-hand is "do B&W reprints of color PD stories have Copyright protection?"  Gaylord vs The USA deals with the image used by the USPS of a Copyright-protected work owned by Gaylord.  

"As a whole", publications like JVJ's magazine or AC Comics "Men of Mystery" title carry their own Copyrights, since "minimal creativity" is used in the selection & arrangement of the material they reproduce.  Someone might say that changing a PD image from color to B&W (which could be viewed as an artistic choice that "transforms" the image and not just a cheap way of reproducing it) does not meet the criteria for Copyright protection, but have the Federal courts ever said the same thing?

Bc

Are these issues just reprints or is this a compiliation with commentary and the like as the approach to this as a derivative compilation is different.

Can some one post a link to the originals and then to the black and white issues?    Further, If the originals that were colorized were still in copyright then it to a degree would extend to the black and whites but would also infringe their on originals.... this appears to me to be just a whole play on words trying to ignore that which is necessary.  The last time I had an arguement like this was over zines and occurred exparte' 25 years ago in a Judge Pyteluski chambers... The people in question had basically did this exact thing and recreated an artistic fanzine with exact b&w copies in the end they owed $250,000.00.   Here is another problem, If what you say would be correct then you would own it or they would...and anyone who recreates a new work based on a public domain product would be inviolation or these copyrights that whomever does not legally have the right to own.

Be well,

Mark

[JVJ]

You're going above and beyond if your effort to educate us, Mark, and I thank you. If I might add another (hopefully) clarifying query? If I scan and print a public domain reproduction of a piece of art (pre-1923 magazine cover, for instance), and I copyright my magazine that contains that reproduction. My question is: is MY reproduction in the public domain? I have no interest in claiming any rights to the original piece of art, nor to the magazine image that I scanned and (in terms of the bit-level components of the image) altered substantially. Do I have any rights over my reproduction?

Again, I realize that you're being exceptionally gracious with your time and knowledge, but I hope you can reply. This is a  question than may not as yet have been addressed at law, but it is certainly one that will have to be settled eventually. I have no qualms in claiming that what I have done to the scan of the printed piece is creative and original - although my intent is to reproduce the image as close to the original as possible. The courts, of course, may disagree.

Thanks in advance for sharing.

Peace, Jim (|:{>

[narfstar]

Mark this has been one of the most informative forums and I love it. Thank you so much. Let me see if I got it right.
Jim's ImageS magazine as a whole in order, layout and commentary is copyright. However anyone can scan and reuse the individual pictures from his magazine as they are in, and remain in, public domain. His publishing them just makes them more available for such. Not that I think this will cost Jim anything. The people who buy his mag will continue to do so and any use of the pics from the mag would likely be good advertisement for the magazine. The people who use this site are also the most likely to buy the books comprised of this same public domain work. So Jim's audience is probably pretty loyal.

[wildthing423]

You're going above and beyond if your effort to educate us, Mark, and I thank you. If I might add another (hopefully) clarifying query? If I scan and print a public domain reproduction of a piece of art (pre-1923 magazine cover, for instance), and I copyright my magazine that contains that reproduction. My question is: is MY reproduction in the public domain? I have no interest in claiming any rights to the original piece of art, nor to the magazine image that I scanned and (in terms of the bit-level components of the image) altered substantially. Do I have any rights over my reproduction?

Again, I realize that you're being exceptionally gracious with your time and knowledge, but I hope you can reply. This is a  question than may not as yet have been addressed at law, but it is certainly one that will have to be settled eventually. I have no qualms in claiming that what I have done to the scan of the printed piece is creative and original - although my intent is to reproduce the image as close to the original as possible. The courts, of course, may disagree.

Thanks in advance for sharing.

Peace, Jim (|:{>

Here are some exceptions to the public domain issue:

New and creative transformational use
derivatives:
*compilation
*compendiums
*collections

Original: the selection or arrangement was not mechanical or routine

Your selection  and creative process must be unique to yourself and unlikely to be duplicated by someone else attempting to accomplish the same thing.. If this were actually the case then it could possibly qualify for copyright protection.  There must be no likelihood of confusion.


Direct educational quote:  “Two works are substantially similar if ‘an average lay observer would recognize
the alleged copy as having been appropriated from the copyrighted work.’”
Palmer v. Braun, 287 F.3d 1325, 1330 (11th Cir. 2002) (quoting Leigh v. Warner
Bros., 212 F.3d 1210, 1214 (11th Cir. 2000).

But you still do not have a copyright on the image ***itself*** but the place holder and collection or the container i.e. the magazine as a whole and new works...yes! What I mean to say is If the image, if cropped and reproduced was identical in every way then their is no real way to prove copyright ownership...Its like those people with the norman rockwell website..their trying to claim copyright solely based on mechanical reproduction, no one has challenged them yet, I have been giving it consideration though, If the copyright were allowed to stand, then anyone from that day forward who used appropriated or published anything norman rockwell could be sued for infringement...It just aint happen'  I laugh at them and the attorney who gave them the advice.  But what can be done, take several say images from what ever artist , get clean high res reproductions made by yourself or anyone you employ, create a montage or collage of them and create the cover from that.  In using an image say of something monet' always credit the original deceased author, maybe caption it  and write a piece about it.  everyone would know, generally speaking, that it was a monet'  but you are not claiming its yours, just the new creative work is yours.  see?  This is legal.  However, the direct answer is as long as you claim ownership in the magazine as a new and creative copyrighted work, then as a whole...yes.  But, like I said, if the copy of the image is indistinguishable from an original anyone could use it. as it is just a copy of a public domain document.


Mark

[wildthing423]

Mark this has been one of the most informative forums and I love it. Thank you so much. Let me see if I got it right.
Jim's ImageS magazine as a whole in order, layout and commentary is copyright. However anyone can scan and reuse the individual pictures from his magazine as they are in, and remain in, public domain. His publishing them just makes them more available for such. Not that I think this will cost Jim anything. The people who buy his mag will continue to do so and any use of the pics from the mag would likely be good advertisement for the magazine. The people who use this site are also the most likely to buy the books comprised of this same public domain work. So Jim's audience is probably pretty loyal.

If the issues were in the public domain originally, then unless he made a completely new *creative* work then they are still public domain.  Here is a good example.  Dover publications, sells many things that are or have lapsed into the public domain.  But they garner a copyright only on the compilation.  They don't own distribution rights on say Manet' Monet duer or Picasso , they cant sue you or I for making a reproduction of a painting and posting it on a website or blog, but they own the compilations as a whole.  they can and do sell distributive dvd's and cd's which are also compilations of public domain art and articles and books, they own the dvd and cd print art compilations and the right to distribute them, but you could create your own without violating their rights as no one owns , singly, the public domain.  The best way to approach this is to create a new product, have an artist create a new cover say for a digital compilation, put a variety of works or parts there of , with all types of articles and commentary and distribute them weekly or monthly... that's new and creative and I have done this as well, but from a comic lovers and an artists point of view.  I routinely create posters, I re-draw and redesign in a very large size and sell them to people...I use water color, marker, and color pencil as I am extremely ignorant in the use of the programs I have.  I send them to a print on demand place  usually ordering only one of each and have them shipped to whoever hired me.  

Does this shed more light on the subject?


One of the most distinctive problems I see, and all of you can see it as well, is that we , as a whole, tend to speak of copyrights as a singular isolated thing in that it is just about ownership.  I own that wagon, that's my fence and property line etc.  When really it is a series of rights that guarantee that if one does things in a certain way , then we are afforded a certain type of protection.  It is not absolute, nor all encompassing.  It is a bundle of rights some codified by and enacted by our congress and others become more clear by judicial opinion or codified by those decisions in which they create new rules and things as a matter of law.  So, we must think of copyrights in the same context as we view all laws and codes in that nothing is absolute, somethings appear to apply when in fact they do not.  And, somethings appear not to apply , when in fact they do. It is extremely convoluted and can be , in the end, quite exasperating.

Mark

[bchat]

for some reason you refuse to acknowledge  the rules of the court, the way the constitution is written and the way it is judicially applied.

I don't think you understood what I said.  Fair enough, hardly anyone ever does.

Anyway, thanks for the reply.  I appreciate your dedication in regards to enlightening everyone about what you've learned.

[wildthing423]

for some reason you refuse to acknowledge  the rules of the court, the way the constitution is written and the way it is judicially applied.

I don't think you understood what I said.  Fair enough, hardly anyone ever does.

Anyway, thanks for the reply.  I appreciate your dedication in regards to enlightening everyone about what you've learned.

It does not address (for example) a comic book publisher taking a Public Domain story, removing the color, then (possibly) claiming a Copyright on the B&W images.

Maybe I did not!  I thought I did.  I looked at your scans.  I can see all the hard work that goes into just scanning a page in the highest dpi-ppi that you are able to get. And , you deserve to have that work ethic  and product protected.  I am all for this.  I will support you and anyone like you trying to preserve the past for the future enjoyment of us all.

If I am understanding you correctly, Then the subject matter at hand are color comics  of original authorship and publication that have now lapsed into the public domain.  The scanning of those issues with the sole purpose of judiciously recreating them, identically re-creating them, importing them into Photoshop, corel or another like artistic workhorse and turning them into black and white, and whether you or anyone else can claim copyright to those items and have it survive a challenge , legally.   I cannot, nor can anyone else, give a bright line all encompassing answer.  As I have stated, the copyright act , as amended, gives automatic protection for any "original"  artistic and creative work.  This is one of the underpinnings of constitutional issue.  In making those scans black and white, they are essentially the same other then the color contrasts.  They are public domain issues of another author and artists' work but have fallen into the public domain, so they are available to all here.  So, no copyright infringement occurs, per se'.  In order to give the best possible answer, we must start with "what is the original purpose of the creation of copyright laws and statute,  If you read about all the copyright infringement cases that exist here in the U.S. and look at the original "STATUTE OF ANNE"  The majority of it hinges on or is about money, or someone claiming the use of their product for some purpose other then to benefit them.  That is not what it is about...It is "To promote the Progress of Science and useful Arts"  It is to encourage you to do something, not discourage you, or anyone else for that matter.  This , then becomes more muddy as to claim copyright , generally and specifically, is to claim ownership as an "ORIGINAL ARTIST AND AUTHOR" the creator of a new and ORIGINAL CREATIVE WORK."  Whomever scanned the documents, did not create the art, they did not write the story and fix it into the publication tangible format, they , who so ever, duplicated it exactly and bled the color out.  Though there is a laxity in what is considered a new trans-formative work and what  minimally creative, I do know with a certainty that this is inherently, too minimal to qualify as a new and creative and " different" work.  It would be better to create a small periodical type publication, or compilation with a different purpose and intent but still providing the necessary food for the comic book fanatic or lover and you or whoever, will still be fulfilling  the need and want to preserve its history and presentation for all.  Now , anyone can split hairs with me on this and say, its in a fixed tangible format,  but in the end, it is just a colorless copy of the original in near exacting detail.



Mark

[bchat]

for some reason you refuse to acknowledge  the rules of the court, the way the constitution is written and the way it is judicially applied.

I don't think you understood what I said.  Fair enough, hardly anyone ever does.

Anyway, thanks for the reply.  I appreciate your dedication in regards to enlightening everyone about what you've learned.

Maybe I did not!  I thought I did.  I looked at your scans.

I haven't talked about my scans at all.  I'm not sure I understand why you felt the need to look at my scans, since they have nothing to do with the topic at hand.

If I am understanding you correctly, Then the subject matter at hand are color comics  of original authorship and publication that have now lapsed into the public domain.  The scanning of those issues with the sole purpose of judiciously recreating them, identically re-creating them, importing them into Photoshop, corel or another like artistic workhorse and turning them into black and white, and whether you or anyone else can claim copyright to those items and have it survive a challenge , legally.
...

I understand that the original material would still be Public Domain, and that simply creating an "image" of PD material is not enough to gain a Copyright ... that particular issue never entered my mind on my end of the discussion. 
(Yes, typing "claiming a Copyright on the B&W images" was a poor choice of words on my part, and I apologize for not being clearer earlier on.)

As I understand what I've read on the matter, a compilation of PD material "as a whole" (for example: a compilation of "the best" Sgt Spook stories from various issues of Blue Bolt Comics) would be protected by a Copyright, and could not be reproduced "as a whole" without the consent of the Copyright holder.

I'm really not looking to drag this out forever, I just hope that I've now clarified what I originally meant to say, and I apologize again for not being clearer from the start.

[wildthing423]

I haven't talked about my scans at all.  I'm not sure I understand why you felt the need to look at my scans, since they have nothing to do with the topic at hand.

No you did not say anything about it, but it appears below your posts in a footer I think...my scans are here..or something to that effect, so rather then go looking for the other scans i just clicked on the link.  I did not mean anything bad by doing it and if I have in someway offended you I apologize, It was an availability to use as an part of an explanation, nothing more...it was just handy.. It did appear somewhere its why I clicked on the hyper-link.

I do not want to drag a thing out either, however it is what I do, teach, fine art, graphic art as applied to this specific subject [publishing] and copyright both together in a dual program  currently I am assisting in the preparation of some of the first mock trial high school competitions to address copyright issues.  Well its a great thread and conversation anyway.  I enjoy it.

be well...


Mark


p.s. I remember now...I was going to send you a pm and found the link there...I still apologize for any offense.

[bchat]

I haven't talked about my scans at all.  I'm not sure I understand why you felt the need to look at my scans, since they have nothing to do with the topic at hand.

No you did not say anything about it, but it appears below your posts in a footer I think...my scans are here..or something to that effect, so rather then go looking for the other scans i just clicked on the link.  I did not mean anything bad by doing it and if I have in someway offended you I apologize,  It was an availability to use as an part of an explanation, nothing more...it was just handy.. It did appear somewhere its why I clicked on the hyper-link.

No apology necessary, and I'm certainly not offended by anyone looking at my scans.  It's why I take the time to make them in the first place and then post them online.  I just didn't understand why "my scans" became part of the conversation, since neither of us (up to that point) had mentioned anyone trying to claim Copyrights on scans of PD comics (which are simply literal reproductions, nothing is being added to them).  Even if one of us did mention it, "my scans" are one of the worst examples to use, since all I do is scan the pages, straighten & crop the images, re-size by half (for the members still using dial-up connections), zip 'em up and release.  Any editing I do (which is the only thing of value I would be adding) is minimal and usually goes unnoticed, and certainly is not worth worrying about claiming a Copyright on.

I do not want to drag a thing out either, however it is what I do, teach, fine art, graphic art as applied to this specific subject [publishing] and copyright both together in a dual program  currently I am assisting in the preparation of some of the first mock trial high school competitions to address copyright issues.  Well its a great thread and conversation anyway.  I enjoy it.

No, you drag this out all you want, you're doing a good thing here.  I just meant that my involvement shouldn't drag-on more than it should.  I ramble too much if I'm not paying attention.

[wildthing423]

I haven't talked about my scans at all.  I'm not sure I understand why you felt the need to look at my scans, since they have nothing to do with the topic at hand.

No you did not say anything about it, but it appears below your posts in a footer I think...my scans are here..or something to that effect, so rather then go looking for the other scans i just clicked on the link.  I did not mean anything bad by doing it and if I have in someway offended you I apologize,  It was an availability to use as an part of an explanation, nothing more...it was just handy.. It did appear somewhere its why I clicked on the hyper-link.

No apology necessary, and I'm certainly not offended by anyone looking at my scans.  It's why I take the time to make them in the first place and then post them online.  I just didn't understand why "my scans" became part of the conversation, since neither of us (up to that point) had mentioned anyone trying to claim Copyrights on scans of PD comics (which are simply literal reproductions, nothing is being added to them).  Even if one of us did mention it, "my scans" are one of the worst examples to use, since all I do is scan the pages, straighten & crop the images, re-size by half (for the members still using dial-up connections), zip 'em up and release.  Any editing I do (which is the only thing of value I would be adding) is minimal and usually goes unnoticed, and certainly is not worth worrying about claiming a Copyright on.

I do not want to drag a thing out either, however it is what I do, teach, fine art, graphic art as applied to this specific subject [publishing] and copyright both together in a dual program  currently I am assisting in the preparation of some of the first mock trial high school competitions to address copyright issues.  Well its a great thread and conversation anyway.  I enjoy it.

No, you drag this out all you want, you're doing a good thing here.  I just meant that my involvement shouldn't drag-on more than it should.  I ramble too much if I'm not paying attention.

I went and looked at the images site, quite frankly, I love it.  I think he should bundle them under a different cover, say 3  at a time, but its a great job he is doing.  I'd help him anyway I could.

Mark

[narfstar]

Here is a very basic explanation of what goes in public domain. If the work did not carry a proper copyright, like many Charlton and some other then it is public domain. If it was published before January 1st 1964 and the copyright was not renewed then it is public domain. This probably apply to most ACG titles. Does anyone know when the works were bought by Boughton? If it was after 1992 then all the works before 1964 will be usable on CB+

[bchat]

This probably apply to most ACG titles. Does anyone know when the works were bought by Boughton? If it was after 1992 then all the works before 1964 will be usable on CB+

From what little information I was able to find online, it would appear that Roger Broughton purchased reprint rights to some of ACG's material at some point during the 1980s.  After spending some time searching the online records at "copyright.gov", it's my opinion that Broughton did not purchase or have  transferred to him (or any business he was operating) any Copyrights to any title ACG published.

The only "ACG" title I can find any info on is "Unknown Worlds" (indicia publisher Best Syndicated Features Inc), which had renewals filed by Marvel Enterainment Group from 1989 through 1994 for the first 53 issues.