Archive | Public Domain RSS feed for this section

Who Owns First?


Not even warming the bench

There is no end to the number of jokes one might make in a post about a decision concerning the classic Abbott & Costello comedy routine “Who’s on First”—and indeed I’m champing at the bit to make ’em—but the import of the ruling is just too great to be flip about, in this copyright comic’s opinion. Because if I’m reading the Second Circuit correctly, and I think I am, then the court thinks that the beloved shtick is no longer protected by copyright. In other words—although the court did not say so explicitly in 62 pages—the routine is in the public domain.

In TCA Television Corp. v. McCollum, decided October 11, 2016, the United States Court of Appeals for the Second Circuit found that the trial court—the U.S. District Court for the Southern District of New York—had gotten the right answer, but for exactly the wrong reason. The trial court had rejected the argument that “Who’s on First” isn’t protected by copyright (or, more accurately, that the plaintiffs had failed to plead a valid copyright interest) but was persuaded by the argument that the defendants’ use of a portion of the routine verbatim is fair use. It’s exactly the opposite, wrote the Second Circuit. (Indeed, the Second Circuit showed admirable restraint itself under the circumstances. This is perhaps the principal reason why your humble commentator is not a federal appellate judge.)

So let’s meet the players, some of whose numbers have been “retired”: Read More…

Now you can go Holmes again!

Originally posted 2014-01-03 09:48:52. Republished by Blog Post Promoter

Watson and Holmes

Which one is Brozik? Is Coleman really that old?

“Knock, knock.”

 “Who’s there?”


   “Watson who?”

    “Not much. But there is this decision from the U.S. District Court for the Northern District of Illinois…”

It would be tempting, to be sure, to try to embellish a discussion of the recent Sherlock Holmes decision with Holmesian flourishes, but this blawger isn’t going to do that—even though the decision has recognized his—and yours, for that matter—freedom to use the “characters, character traits, and other story elements from Sir Arthur Conan Doyle’s Sherlock Holmes stories”—or at least those published before 1923. That said, a simple recitation of the relevant facts is in order—a method Holmes himself might have employed—in a bulleted list (and Holmes would have been able to tell you whether I am left- or right-handed just by examining these bullets!):

  • Sir Arthur Conan Doyle wrote four novels and fifty-six short stories featuring the fictional characters Sherlock Holmes and his friend and chronicler Dr. John H. Watson.
  • The first story, “A Study in Scarlet,” was first published in 1887 (in the United States in 1890). Forty-five further stories and the four novels were published in the U.S. before January 1, 1923. All of these works are in the public domain.
  • The remaining ten stories, published after 1922, are still protected by copyright, owned by a company whose principals are relatives of Conan Doyle.

Read More…

Best of 2006: Who owns the copyright in scans of public domain works?

First posted on May 7, 2006.

I love If you’re my age or a little older, almost any click on this smartly designed and comprehensive website can recreate a certain feeling that comes with recalling a much more secure, confident and simple America — kind of like the grown up version of Dick and Jane.

Rockwell copy copy copy

Great metaphor. Probably not great fair use.

I would use the graphics from every day if I could, but I don’t have their permission. On the other hand… whose graphics are they, really? They put it this way:

PLEASE NOTE: The images on this site are embedded with an invisible digital watermark and IPTC metadata. Are you free to scan and market images out of that nifty 1936 Hupmobile brochure you got at the flea market? Yes, if it was published without a copyright, or if the copyright has expired. Is it okay to use the images we’ve made from the same catalog? Ahem, cough. We own the scans we’ve made—they represent a considerable investment in equipment, source materials and labor over the past five years. Every jpeg and gif on this site is copyrighted and marked as belonging to us. Please, no borrowing without getting permission.

10 Years of Bloggy Ok-Ness

10 Years of Bloggy Ok-Ness

Hmm. What they’re saying is that the Hupmobile image is in the public domain, but that they have made a new, derivative work from it by virtue of their “considerable investment in equipment, source materials and labor.” Well, that sounds fair. If they thought they couldn’t protect their work, they probably wouldn’t have gone through the trouble. But does it comport with copyright law?

Read More…

“Happy Birthday”: Second verse, same as the first.

While I wasn’t looking, the lead plaintiff in the class action to have the song “Happy Birthday to You” declared to be in the public domain (1) in late July, voluntarily dismissed the action brought in the Southern District of New York, and (2) in late June, filed a class action in the Central District of California, which has been consolidated with other cases… but it appears that the allegations and claims as we knew them are all intact, just relocated. It would appear as well that the plaintiffs filed a Second Amended Consolidated Complaint along the way, because it is parts of this Second Amended Consolidated Complaint that are the subjects (objects?) of a recent motion to dismiss made by the defendants, Warner/Chappell Music, Inc. and Summy-Burchard, Inc.

mdbheadshotfinalOn August 30, the defendants moved to dismiss the plaintiffs’ federal claims (Claims One and Two, of seven, seek the declaratory judgment and other relief that would follow from the entry of declaratory judgment) to the extent that they are time-barred by § 507(b) of the Copyright Act, a three-year statute of limitation. The defendants also moved for dismissal of the plaintiffs’ other five claims, all based in state law, as being preëmpted, insufficiently pleaded, time-barred, etc.

The court—Hon. George H. King, Chief U.S. District Judge, presiding—ruled as follows:

  • Some of the plaintiffs’ federal law claims—that is, the claims of some of the plaintiffs—are time-barred, being older than three years. The plaintiffs argued for a four-year limitation period, inasmuch as the bar expressly provided in the Copyright Act doesn’t, or shouldn’t, apply to declamatory judgment actions, and the federal Declaratory Judgment Act does not have its own statute of limitations, so the court should borrow a limitation period from an analogous California statute… which argument the court found unpersuasive. So Claims One and Two were dismissed as to certain plaintiffs, with leave to amend their pleadings to allege delayed accrual or tolling. But the Second Amended Consolidated Complaint remained undismissed generally.
  • And, giving effect to something the parties themselves had agreed upon at a conference, the court ordered that Claim One—for declaratory judgment—would be bifurcated through summary judgment. The other six claims—the one federal claim for post-declaration relief and the five state-law-based claims—are stayed until further order of the court.

I would love to be able to end this post by writing, “We’ll be watching this case closely as it continues…” or some such, but the truth is that I’ll probably get distracted and won’t even know about a resolution for a month after one is reached, and I’ll still be sending Warner/Chappell royalty checks every time I sing “Happy Birthday to You” even when the song is in the public domain….

Pyramid scheme

Overlawyered reports:

Egypt wants to copyright pyramids, Sphinx 

Under the proposed law, backed by Supreme Council ofpyramid.jpg Antiquities chief Zahi Hawass, persons around the world would be forbidden to sphinxbycaviglia.jpg make copies, even for private use, of the country’s famous monuments, scarabs and other Pharaonic survivals. “His comments came only a few days after an Egyptian opposition newspaper, Al-Wafd, published a report complaining that many more tourists each year travelled to the pyramid-shaped Luxor hotel in Las Vegas than to Luxor itself. The newspaper proposed that the US hotel should pay some of its profits to Luxor city.”

Yes, there’s something of a jurisdiction problem — the proposition that Egypt has the power to “forbid persons around the world” from doing anything. (They are good at stopping people from blogging.) But not as severe as the stupidity problem. Don’t these guys know what happens in Vegas, stays in Vegas?