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Ask Slashdot: How To "Prove" a Work Is Public Domain? 213

New submitter eporue writes: YouTube claims that I haven't been able to prove that I have commercial rights to this video of Superman. They are asking me to submit documentation saying "We need to verify that you are authorized to commercially use all of the visual and audio elements in your video. Please confirm your material is in the public domain." I submitted a link to the Wikipedia page of the Superman cartoons from the 40s where it explains that the copyright expired, and to the Archive page from where I got it. And still is not enough to "prove" that I have the commercial rights. So, how do you "prove" public domain status ?
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Ask Slashdot: How To "Prove" a Work Is Public Domain?

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  • Half the story (Score:5, Insightful)

    by DerekLyons ( 302214 ) <fairwater.gmail@com> on Sunday August 16, 2015 @04:09PM (#50327757) Homepage

    Just because the story is in the public domain, that doesn't mean you have the ability to use the trademarks.

    • Re: (Score:2, Insightful)

      by BenJeremy ( 181303 )

      THIS.

      I believe trademarks are where corporations should be able to protect characters of a franchise that is still being actively monetized.

      Once the copyright expires on a cartoon... you should be able to copy it freely, of course, but that shouldn't mean you have a right to monetize it when it contains trademarked characters.

      It is a simple fix to our current laws, but unfortunately, the people are no longer served by our so-called "representatives" in Congress.

      • Re:Half the story (Score:5, Insightful)

        by NostalgiaForInfinity ( 4001831 ) on Sunday August 16, 2015 @04:30PM (#50327851)

        That doesn't make any sense. If this were a trademark issue, they wouldn't be asking him to show that the material is in the public domain.

      • Re:Half the story (Score:5, Insightful)

        by JMJimmy ( 2036122 ) on Sunday August 16, 2015 @05:36PM (#50328053)

        I believe trademarks are where corporations should be able to protect characters of a franchise that is still being actively monetized.

        Congratulations you've just created infinite copyright by that standard.

      • Re:Half the story (Score:5, Insightful)

        by vux984 ( 928602 ) on Sunday August 16, 2015 @05:51PM (#50328107)

        I believe trademarks are where corporations should be able to protect characters of a franchise that is still being actively monetized.

        I hear where you are coming from, but then mickey mouse never enters the public domain.

        And if Bill S, had incorporated and transferred his copyrights and trademarks to the coproration than the characters of Romeo and Julliette, Hamlet, Shylock, and all the rest would still be protected... from ever being used or referenced.

        WHY is that ok? Culturally these characters should eventually be public domain. Can you imagine how much art and culture of today involves the use classical heroes and villains.

        From Hercules to Dorian Gray, from Hades to Dr. Frankenstein. Would you prefer that all these characters belong to corporations forever trademarked?

        One day another 50 or 100 years from now... why shouldn't the chracters of Mickey Mouse and Superman be equally available to screen writers and authors to incorporate, remix, and re-imagine?

        From the countless Shakespeare reimaginings to TV series like Penny Dreadful that mix the Dracula tale with Dorian Gray and other "period' heroes and villains to the constant mining of greek mythology for new stories... culminating in stuff like Percy Jackson... this is a good thing.

        Why exactly do you think today's "trademarked" characters SHOULD forever belong to corporations?

        • Trademarks don't expire indeed but fade away when the owner stops using them, thus having characters end up in the public domain. So Disney would continue to have the right to make new Mickey Mouse cartoons, but the old cartoons would start fall in the public domain as the copyright expires.

          • Strong restrictions need to be put in place to prevent trademarks from getting infinite protection. ALL copyrighted works MUST fall back into the Public Domain or why are we giving them monopolies? This includes trademarks.
            • There is no such thing as "public domain" for trademarks, as trademarks and copyrights are very different things.

              There can be multiple companies with the same trademark coexisting legally: they may exist in different geographic areas (even within the same country or city), they may operate in different areas of business. For example, if you were to open a fast food shop and call it Walt Disney's Fries Company, the Walt Disney cartoon and theme park company may try to fight this, but they wouldn't stand much

              • by vux984 ( 928602 )

                In contrast to copyrights, trademarks don't expire. The Ford car company exists for a very long time, but as long as they exist and the brand is used, no-one else can make Ford-branded cars.

                And that's fine. I don[t object to the Ford car company owning a trademark on its logo and brand for as long as it makes cars... even if its thousands of years.

                But take a look at Harry PotterTM, with its MugglesTM, and HermioneTM and QuidditchTM, etc... every character, every place, every THING in that entire fictional universe is trademarked.

                That's not what trademarks were for. They do not exist to do an end run around copyright. This is what they are doing with it.

        • There's no sign that the copyrights on Mickey Mouse will _ever_ enter the public domain. There are strong reasons that the relevant copyright law is called the "Mickey Mouse Protection Act". I expect another extension act to be signed, with strong movie and music industry lobby support, shortly before the existing copyright protections for Mickey Mouse expire.

        • True... kind of... but only because he would have entered the public domain if Disney didn't keep lobbying Congress for more copyright extension laws. And they will do it again. And again. And again. The mouse is pure gold. If all it takes are some phone calls to sympathetic congressmen why wouldn't they? http://www.washingtonpost.com/... [washingtonpost.com] http://artlawjournal.com/micke... [artlawjournal.com] but hypocritical because Disney swooped on Kipling's Jungle Book as soon as that fell into public domain https://www.techdirt.com/artic.. [techdirt.com]
          • by vux984 ( 928602 )

            True... kind of... but only because he would have entered the public domain if Disney didn't keep lobbying Congress for more copyright extension laws

            Right, but each extension stretches the credibility of the rationale ever thinner and distorts the copyright "benefit to society" argument. I think sooner or later it breaks down...

      • NO. trademarks are part of culture too, and i am uncomfortable giving anyone perpetual monopoly on culture. Your idea would strip The People of the right to the work that was copyrighted. Mickey Mouse the idea and the associated actual works should be Public Domain now, regardless if Disney uses Mickey as a trademark. Continued monetization should not be a criteria at all. Public Domain its free of ALL restrictions, trademarks should eventually lose their protection over time too.
    • Re:Half the story (Score:5, Interesting)

      by Purity Of Essence ( 1007601 ) on Sunday August 16, 2015 @04:25PM (#50327829)

      There are more than a dozen companies distributing these cartoons on DVD and not paying anyone or asking permission. If they want to name-check "Superman", they can do that too. It's factual information, not product branding.

      Where there might be a legitimate copyright issue is copying someone else's film transfer or encoded video, if something creative was done with the presentation, possibly including restoration. In similar cases, the court has ruled that exact duplication, even that requiring a high degree of skill, has no creative element and not covered by copyright.

      https://en.wikipedia.org/wiki/... [wikipedia.org].

      • by ihtoit ( 3393327 )

        I used to run a DVD library of over two thousand feature titles including the Superman cartoons. I not only printed the discs myself, I designed the inlays as well. Made a freakin' fortune. Wasn't half tedious though...

    • Dastar v. Fox (Score:5, Interesting)

      by tepples ( 727027 ) <.tepples. .at. .gmail.com.> on Sunday August 16, 2015 @05:18PM (#50328009) Homepage Journal

      The court ruled in Dastar v. Fox that a trademark cannot be used as an ersatz copyright.

  • by Anonymous Coward

    Unless the copyright office gives out such things (and I doubt they do), I'm not sure you can get proof. The fun thing is that they've changed the rules multiple times, invented nonsense like a "common law copyright" (in NY) and otherwise revived dead copyrights by law (the Supremes have no problem with that).

    Major copyright holders want to kill the public domain and the very idea that the public is granting them limited rights which revert to the public at the end as it's a threat to them owning everythin

  • Silly Person (Score:4, Insightful)

    by MightyMartian ( 840721 ) on Sunday August 16, 2015 @04:12PM (#50327773) Journal

    Oh you silly person. There's no such thing as Public Domain. It's a theoretical construct at this point, and might as well be considered as mythical and unlikely now as unicorns and a third party POTUS.

    Believe me, within 20 years, Homer's and Shakespeare's works will be owned by Walt Disney or Sony, and anyone putting on a production of Hamlet will have to pay royalties. This is the world that evil lawyers and culpable, retarded politicians are creating.

    • Considering that the cartoons in question are in public domain and there are multiple people creating packets of them and selling them without any problems, you are axiomatically incorrect.

    • by Trogre ( 513942 )

      Please don't misunderstand me when I make the following comment in response to your post:

      Fuck that.

    • Um... why would YouTube need to verify anything? Wouldn't anyone with a copyright claim to any component need to prove *their* claim instead?
    • Of course Hamlet is owned by Disney. How else do you explain the striking resemblance to "The Lion King"?
  • the burden of proof is on you... and you need to take them to court if they're being crazy.

    Yup.
    https://www.youtube.com/watch?... [youtube.com]

  • It's really supposed to be the other way around: You post your Superman video to youtube, the owner of modern Superman sues you or tells Youtube to take it down, and then they have to prove that they own the copyright.

    Of course, youtube could just look at the law you're showing them also.

  • by mbone ( 558574 ) on Sunday August 16, 2015 @06:13PM (#50328177)

    I am not a lawyer, this is not legal advice.

    You can't in general prove that something published post-1923 is public domain. We do not have (any more) a requirement to register copyrights, plus we now have very long copyright terms. Either would be bad, the combination is (quite deliberately) pernicious. It means that, while you may have good reasons to assume that something is PD, you can almost never know for sure. There are two major exceptions - works that have been declared to be PD by their owner, and works by the US Government (which are PD from birth). US Government works are generally pretty safe, but works declared PD are not always (as you have no way to prove the donor actually owns them).

    If you think that this implies that our copyright laws need to be changed, you are IMO correct. I would go for a term of 14 years, one renewal possible, with registration required. The wailing from the rent-seeking entertainment industries would, of course, in that case be something to behold, but that would have some entertainment value in its own right.

    • I wholeheartedly agree with this. And, to claim copyright, you have to put the copyright expiration "no later than" year in your work as well, so that even if they try to do another extension/etc after-the-fact, that work has a PD date NO MATTER WHAT and cant be changed.

  • by Anonymous Coward on Sunday August 16, 2015 @06:38PM (#50328275)

    1. I am not a lawyer.

    2. General public domain works are pre-1923 works. Works post-1923 that are in public domain are so for technical reasons, such as failure to renew copyright.

    3. Wiki claims the cartoons are in the public domain by linking to page 13 in Superman vs. Hollywood in Google Books.

    4. On page 13, it asserts "By the latter part of the century, Max Fleischer's Supperman cartoons had fallen into the public domain, where they were subject to all manner of ignoble treatment by third-rate video distributors." (https://books.google.com/books?id=OmYt2xaxktEC&pg=PT25#v=snippet&q=public%20domain&f=false)

    5. This assertion in 3, however, is not evidence that nobody currently owns rights to the cartoons.

    6. It would appear from surrounding text in Superman vs. Hollywood that Warner Brothers is likely the current rights holder to Superman.

    7. To prove the cartoons in question are available for public domain use, the following (perhaps more) would likely need to occur:
    - Show no current copyright on said material by showing expiration of copyright and doing exhaustive search in pre-1978 and post-1978 archives via http://copyright.gov/records/index.html
    - Show statutory justification that expired copyrights in fact enter public domain
    - Show that the work in question meets the aforementioned requirements

  • by nedlohs ( 1335013 ) on Sunday August 16, 2015 @08:13PM (#50328637)

    Who would have thought!

  • If you were flying with Superman wouldn't the super take off break your bones as he achieves flying speed? I don't imagine many spines being able to deal with the take off force.
  • But it is high time someone took the platforms to court over this shit. They do not claim the copyright, and if they did the onus is on THEM that they own it, not on you to prove that you had an original thought.

    Automated generation of DCMAs, Youtube's automagical blocking of audio, all of this shit needs to stop. If you think you own something then it's up to your lawyers to prove it.

  • by gbnewby ( 74175 ) * on Sunday August 16, 2015 @09:56PM (#50328949) Homepage

    This might help: https://www.gutenberg.org/wiki... [gutenberg.org]
    And, the updated "Rule 6 How-To" at https://copy.pglaf.org/ [pglaf.org]

    For something published in the US after 1923 and before 1964, renewal of copyright was necessary to get a further 28-year extension. (Term extensions in 1998 extended copyright of items published in 1964 onward, and removed the need to renew.)

    The Rule 6 how-to has a template for non-renewal research that might satisfy YouTube, if you do the research and send it in.

    Only around 10% of items published from 1923 onwards were renewed. (It's no longer required, but you can still renew today.) The US Library of Congress has records of copyright registrations and renewals, and the Rule 6 How-To describes where to get the records. For items from 1923-1963, the renewals for printed items are comprehensive.

    Serialization is sometimes a problem. Items might have been published, then published in another form (say, a magazine article that was published as a book), and if the timing is close enough one renewal might cover both items.

    Proving something is in the public domain in the US, for printed items, is not that hard for items published from 1923-1963. It takes some time and expertise, and there is always a chance there is a renewal that you didn't find. Proving it is still copyrighted is also easy: show me the renewal.

        - Greg

  • Good luck... (Score:5, Interesting)

    by Chozabu ( 974192 ) on Monday August 17, 2015 @01:45AM (#50329635) Homepage
    A video of a game I made was refused.

    https://www.youtube.com/watch?... [youtube.com]

    As evidence - I submitted the link to android market place, where I am selling the game - offered source code, source assets, etc. Several times, along with asking what would do for valid evidence.

    150k views later, lots of evidence and questions from me... "monetization rejected" and still ignored.

    And that's with A video I made, of a Game I made!
    • by Cederic ( 9623 )

      Write yourself a letter granting authorisation to publish and monetise video footage of the game you wrote, sign it, scan it, and send it to Youtube as proof that you have authorisation.

  • So you're asking us how to prove it's public domain so you can make money with it?
    That ofcourse is ridiculous.. If it's public domain, you shouldn't be able to make money off it by republishing it on youtube you lame bastard...

  • by Holi ( 250190 )
    At this point in time Superman will not fall into the Public Domain until 2033. You can be assured that Congress will extend Copyright again before then.
  • by MobyDisk ( 75490 ) on Monday August 17, 2015 @10:30AM (#50331799) Homepage

    YouTube claims that I haven't been able to prove that I have commercial rights to this video of Superman.

    I've never heard of YouTube doing this. If this is the US, then something is missing here.

    If YouTube wants safe harbor under the DMCA, my understanding is that they can't require that you prove you own the copyright. Instead, they have to let you publish the content, then wait for someone to file a DMCA complaint against you. Then, once you file a counter to it, YouTube must allow the video to go back up. I'm not aware of any point in the process where YouTube gets to determine who owns the copyright.

    You didn't mention anything about anyone filing a DMCA claim against you, so I'm totally confused where this requires to prove your commercial rights comes from. Ultimately, the answer here is probably "get a lawyer." Especially since you mention "commercial."

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