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REH's Works: Public Domain? Legal Issues

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#181 Roquefort Raider

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Posted 04 March 2009 - 07:56 PM

What has Red Sonja LLC ever done in the actual creation process?


They created a corporation to own the character.


That's pretty much what I feared.

These sorts of discussions seem to me largely carried on by idealists (of whom I have been and sometimes remain one). But "creativity" actually left the whole process in 1936 when REH died. Ever since then, it's all been about business.


Point well made. I think there's something wrong in the selling of rights to creative work as if they were just any old commodity. I'm all for licensing deals (even exclusive ones) if they bring extra money to the creators... but in the Red Sonya/Red Sonja debacle it is clear that none of the creators made any money.



Thanks for the info, Mr. Burke.


- Ben

#182 Sermon Bath

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Posted 11 March 2009 - 05:34 AM

yeah, that was a killer post...one of the best I have ever read on here by far
I don't worry...I have to much on my mind

#183 Kortoso

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Posted 14 March 2009 - 06:30 PM

I should take down my "Cimmeria" fanfilm.

There has been no response from Jay regarding fanfilms, yet through their actions, the CPI lawyars have spoken volumes about how little they will tolerate competition from the fans.

:(

#184 thundarr

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Posted 14 March 2009 - 09:01 PM

I'm no legal expert, but it would seem that as long as you are not profitting financially from your fanfilm it should not neccesarilly be a problem. Especially if said work is "disputably" in the public domain. LordCrom's Solomon Kane fanfilm seems to still be up and running without any problems. (Btw, excellent, excellent work LordCrom, should you happen to read this. I think your fanfilm would make for a great bonus feature for the "Official" Solomon Kane film when it eventually makes it's way to DVD)

I actually think it's kinda silly for companies to "crack-down" on their fans for things such as fanfilms. I feel they only help to broaden the audience and bring them more attention. Even George Lucas realizes and embraces the value of fanfilms and goes so far as to actually officially sanction them and even judge them.

Star Wars Fan Movie Challenge

Besides, even if CPI were to actually object to your fanfilm, i think they would start by sending you a "cease and desist" notice, at which point you could pull it. (And I would personally frame that notice and hang it on the wall with pride) I think CPI's main concern is with folks trying to capitalize financially off of their "properties", but of course I could be wrong. :)

#185 Kortoso

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Posted 14 March 2009 - 10:48 PM

I'm no legal expert, but ...

Yeah, thanks, but prudence dictates that I wait for something more secure than that.

#186 thundarr

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Posted 14 March 2009 - 11:29 PM

I'm no legal expert, but ...

Yeah, thanks, but prudence dictates that I wait for something more secure than that.



Where's your "Barbarian Spirit" man! :lol: I'm just kidding, I totally understand where yer coming from. I'd rather fight my battles with my fists than in a courtroom any day. It would be nice of CPI to give some hint of openness towards fanfilms and the like as Lucas has. Hey, what if someone else re-posted your "Cimmeria" fanfilm? Then they couldn't really come back after ya and it'd still be out there for folks to enjoy. Just thinking outloud here. B)

In a way, a fanfilm is no different than Fan Art, and there's tons of that posted everywhere.

Edited by thundarr, 14 March 2009 - 11:32 PM.


#187 Kortoso

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Posted 15 March 2009 - 05:43 AM

The point is, making a fan-film isn't as easy as blinking your eyes. It takes hard work, and often thousands of dollars. George Lucas clearly and specifically stated that Star Wars fanfilms, if produced for no profit, would be tolerated and welcomed, knowing that this is not only free publicity, but that the fans are the ones who made him rich.

Other license holders have not been so benign, and even with a "cease and desist" order, some hard-working fans' efforts will have been wasted. I don't want to give CPI any free publicity until this is cleared up. Don't we deserve that?

#188 Red_Slayer

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Posted 07 October 2009 - 02:50 AM

So I have recently picked up the Del Ray Conan and Kull books. I love them. the history that REH has set up is fascinating. I am an anthropology/archaeology major and something about the fictional history of Earth just sets gears turning in my head. Now I know that a lot about the Hyborian Age isn't written. I only consider what REH had wrote as canon personally and i am also intrigued about the fragments and outlines he had for other stories without Conan and I know the James Allison yarns also take place in the Hyborian Age. However, I was wondering if would be wrong to write stories within the Hyborian setting with other characters that really have nothing to do with Conan. The Thurian and Hyborian ages encompass a lot of time and there is a lot that could be written. Would thins be frowned upon, or even worse break any copy write laws? Any input would be greatly appreciated. Thanks!

#189 doubledeviant

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Posted 19 July 2010 - 07:15 AM

As a general rule, I don't resurrect dead threads, but this thread has been restored to life several times before, so...

Perhaps I misunderstand, but:

If one were to make a commercial Conan film/book/etc, CPI would likely sue for copyright infringement. It would cost an estimated $5K or so (according to earlier posts) to have a copyright lawyer properly respond to the suit, and then cost several hundred thousand dollars to represent your defense in court should CPI pursue the suit.

But...

So long as the film is based on one of Howard's indisputably public-domain Conan stories, and so long as neither title nor advertising infringed on CPI's Conan trademark, then CPI would be sure to lose. In this case, if I'm not mistaken, CPI would pay all of the defendant's court costs.

So...

Wouldn't some copyright lawyers likely consider taking the case of a smaller defendant on the promise of an easy case (relative to more complex tangles often seen) and the near sure-bet of CPI footing the bill? Are there factors that I'm not aware of? Did I misunderstand the gist of this thread? Is my ignorance of the intricacies of the legal system preventing me from seeing this matter clearly?

It seems to me that someone should be able to be stand up to so obviously a fraudulent suit without having hundreds of thousands of dollars on hand.

But enough rambling from me. ;)

#190 Strom

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Posted 19 July 2010 - 11:05 PM

I'm no lawyer - and your lucky to get the free legal advice that is presented in this topic - but the only thing I am sure of is you would be foolish to listen to a lawyer who tells you it's a sure thing. No case is a slam dunk - believe me. I live outside Detroit and wire taps and video wasn't enough in a recently declared mistrial. If you have money to burn, just send it to a charity. :)

Join and Support The Robert E. Howard Foundation!  Membership has Benefits! 

 

 

 


#191 godzilladude

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Posted 20 July 2010 - 12:08 AM

As a general rule, I don't resurrect dead threads, but this thread has been restored to life several times before, so...

Perhaps I misunderstand, but:

If one were to make a commercial Conan film/book/etc, CPI would likely sue for copyright infringement. It would cost an estimated $5K or so (according to earlier posts) to have a copyright lawyer properly respond to the suit, and then cost several hundred thousand dollars to represent your defense in court should CPI pursue the suit.

But...

So long as the film is based on one of Howard's indisputably public-domain Conan stories, and so long as neither title nor advertising infringed on CPI's Conan trademark, then CPI would be sure to lose. In this case, if I'm not mistaken, CPI would pay all of the defendant's court costs.

So...

Wouldn't some copyright lawyers likely consider taking the case of a smaller defendant on the promise of an easy case (relative to more complex tangles often seen) and the near sure-bet of CPI footing the bill? Are there factors that I'm not aware of? Did I misunderstand the gist of this thread? Is my ignorance of the intricacies of the legal system preventing me from seeing this matter clearly?

It seems to me that someone should be able to be stand up to so obviously a fraudulent suit without having hundreds of thousands of dollars on hand.

But enough rambling from me. ;)


The US is not a "loser pays" country. It is POSSIBLE one could get the legal fees reimbursed, but not guaranteed. And any decent attorney has PAYING clients, who aren't going to expect him to take the risk on. You certainly won't get a decent lawyer to show up hoping that maybe he'll break even. So why would he take on the risk?

Now, I suppose one could get a lawyer to take it on "contingency", that is, where he doesn't charge you his hourly fees (though he almost certainly will want you to front "expenses", at least a few grand, maybe a chunk more). In exchange, he gets a percentage of the winnings, IF he wins. If he loses, he is SOL. Typically, in lots of different cases, he might want 1/3 if the case is done by the end of trial, 40% if it is off on appeal or later. The only trouble, you got nothing to win here, you are not the one seeking damages, and an Intellectual Property trial lawyer who would do one of these cases would certainly be looking for, oh, at least a million in damages, preferably a whole bunch more than that. I worked for a guy like that when I first started lawyering. One case paid him a breezy $30M in cash. So why would he take your case?

Trademark and copyright cases are dealt with in the US federal court system. Some courts are faster than others, but the average is maybe 3-4 years to get to trial. Then the loser can appeal to a federal appelate court, and from there up to the US Supreme Court. At least a couple more years. So the film may be hanging in limbo for a loooong time.

You COULD offer a piece of the action in the film, but ya know, once you win the case, then ANYONE can go forward, they don't need you, and hence, again you make no money. So once again, no reason for a lawyer to take this case.

Oh, perhaps somebody running with Lessig at CCF (CFF?) might be talked into taking the case, but I dunno. They'd do it for free, on principle, but they tend to have certain big ticket issues they are working to get in front of the USSC, I don't know if this is one of them.

No, this challenge isn't likely to happen until someone with VERY deep pockets decides to do it on their own nickel for no good reason. I don't think I've met that REH fan yet. Certainly not a movie studio, they HATE these kind of issues. Too easy to make a one-off without rights hassles.

#192 doubledeviant

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Posted 23 July 2010 - 07:51 AM

The US is not a "loser pays" country.


Well, that one bit of information undermines the gist of my thought. Doesn't seem right that one entity could cost another so much in legal fees.

No, this challenge isn't likely to happen until someone with VERY deep pockets decides to do it on their own nickel for no good reason. I don't think I've met that REH fan yet. Certainly not a movie studio, they HATE these kind of issues. Too easy to make a one-off without rights hassles.


Unfortunate that justice takes a backseat to the almighty dollar. Howard had it right; civilization is a sham. ;)

Anyways, thank you for your insight. I've found your posts to this thread fascinating and informative.

#193 Neil Sarver

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Posted 06 August 2010 - 09:48 PM

Spitballing based on more posts than I feel up to jumping back and quoting...

It's an old post, but I actually think there would be a potential issue is Conan O'Brien tried to call his show "Conan" due to trademarks. I think CPI would feel obliged to defend their trademark, which I'm certain they have applied to television. I suspect no one would want to test that, and I'd guess if O'Brien and TBS were interested in that title, they'd simply make an arrangement with CPI that would amount to a small print acknowledgment of the existing trademark in the end credits.

This would fall under the same issue, to my understanding, as "camel", as mentioned earlier, and "windows" being mundane words, but ones that would cause one a world of hurt if they attempted to use to market a competing type of cigarette or computer software. Yes, even if Camel or, uh, Windows is one's own proper name. There just imagine if you're name is Johnson and you and your brother start a company selling first aid supplies or your name is Wendy and you try starting a restaurant.

And for, among other things, the fact that trademark law requires the owner to enforce their rights as a condition of maintaining said rights, I would expect CPI to go to the wall in a legal action against any use of "Conan" to market any project, whether it was directly commercial in nature or not.

The interesting question, as I see it, is copyright.

The list of US PD works can be seen at:

http://www.robert-e-...4rerevised.html.

I personally did the research, and am a lawyer in the trade, this is a viable list.


Copyright does not have a requirement that one make vigorous effort to enforce in order to maintain.

If CPI claims the copyright to some of the works on this list, they must know that another argument could be made that they didn't. They would seem to have very little - if anything - to gain from testing those copyrights in court, and potentially a lot to lose. Right now, they can easily quell the average attempt to make use of those stories with a threatening sounding cease and desist. But if they went to trial with it, they'd risk that having those stories legally declared to be in the public domain.

The trouble is that most of us here, with whatever fan films or radio dramas or short story collections, would hardly have the resources to test how far they'd be willing to go on that.

I'm not an expert, but I'd see it in their best interest, however, to create an official policy making a blanket allowance for non-commercial uses such as that, however. It would be a great way to create goodwill among fans, help promote their property and avoid any possibility that some future venture would have unforeseen resources to test their copyrights.

#194 Kortoso

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Posted 06 August 2010 - 10:17 PM

...
I'm not an expert,
...


Guess that's the bottom line. Posted Image

Seriously, trademark law specificially prohibits MicroSoft from suing someone who calls an opening in their house a "window". It's patently absurd to suggest otherwise. Conan O'Brien will not fall afoul of CPI, that's a given.

But a barbarian named Conan, or a computer operating system named Windows, if it's apparent that one is making profit from the confusion, is prohibited by trademark law.

I don't see CPI claiming anything about copyright at this point. They wouldn't have leaped into the matter of trademarks otherwise.

But that's just my non-expert opinion. Posted Image

#195 Neil Sarver

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Posted 06 August 2010 - 11:10 PM

Seriously, trademark law specificially prohibits MicroSoft from suing someone who calls an opening in their house a "window". It's patently absurd to suggest otherwise. Conan O'Brien will not fall afoul of CPI, that's a given.

But a barbarian named Conan, or a computer operating system named Windows, if it's apparent that one is making profit from the confusion, is prohibited by trademark law.

Well, it's not quite as simple as a "barbarian named Conan".

Not to get into an argument, but trademarks are used in relevant fields. Obviously Microsoft can't sue for anyone using the term "window" generically, nor could they probably do much if you opened a chain of "Windows" restaurants. In terms of the restaurants, because their trademark is almost certainly not registered to cover restaurants, as not being relevant to their usage, in terms of generic windows it is that, as well as because the term existed in the public domain before they made use of it.

So, if Conan O'Brien - or even you or I, for that matter - came out with a line of products with the name "Conan" that weren't related to CPI's interests or fields in which they have registered their copyright as being relevant to, they would have no justification or interest in taking action against it. However, there are things they surely do have the name registered for, those would include books (including comic books), movies, toys and, yes, television.

(I'm certain that list is incomplete, although I'm not certain what other interests they'd have or how many others they may have claimed that would be difficult to enforce by being too broad, but most major trademark holders register a pretty broad range of potential uses to be safe.)

Here we run into the same situation as if someone named Wendy wanted to start a restaurant called "Wendy's", but it wouldn't work even if your cuisine was entirely different from square hamburgers and soft-serve milkshakes.

As such, a television series with the name "Conan" would very, very much be in their realm of concerns. Whether they would genuinely care about such a use isn't the question. As discussed, in order to legally maintain their trademark, they are required to show due diligence in enforcing it. There is absolutely no way there wouldn't be lawyers in contact with one another if they decided to make such a show, even if it was to make a very simple and painless agreement between them.

I'd be very surprised if there wouldn't be some discussion between relevant lawyers even if they decided to call the show "Conan O'Brien".

This isn't to say that CPI would genuinely feel that their interests were being trod upon, but upon their concern that if they did nothing then it could be used against them if someone else used "Conan" for something else and the lawyer for that second party would certainly use the fact that they had taken no action to protect their trademark within a field in which CPI has an interest.

And certainly anyone producing or distributing a Conan O'Brien series would research any relevant trademarks surrounding any title they considered and contact the trademark owner before even going about proceeding with it.

Like I said, there's not necessarily a reason to believe any of this would have any reason to be unfriendly. Nor is to say that CPI would necessarily win a lawsuit regarding that particular use of the title, if one occurred - that would fall more to the expert level opinion that I don't claim, just a long term personal interest in Intellectual Property issues - but just that they would certainly not be willing, or reasonably even able, to simply ignore it.

I don't see CPI claiming anything about copyright at this point. They wouldn't have leaped into the matter of trademarks otherwise.

I'm not sure I understand, as that seems contradicted by this...

The crazy thing is that Broken Sea actually went out of their way to comply with CPIs wishes,, even though they had no legal or moral compulsion to do so.

And CPI had agreed that it was ok, until this months U-turn.

http://www.sffaudio.com/?p=4128

I understand that you can't steal copyrighted stuff, but CPI is essentially trying to steal stuff that is under Public Domain.

Or was that resolved outside of this thread in some manner?

#196 Alpha Beta Mu

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Posted 20 August 2010 - 02:09 PM

Does anyone know the copyright status of stories published in Weird Tales in 1932? These would be:

  • The Phoenix on the Sword (December 1932)
  • Wings in the Night (July 1932)
  • Worms of the Earth (November 1932)

I've checked the copyright renewals for Weird Tales in 1932 (for another personal project) and these issues had their copyrights renewed:

  • vol. 20 no. 1 Jul32 B175726 R250140 18Jan60 ? Steinberg Press, Inc.
  • vol. 20 no. 5 Nov32 B175730 R250144 18Jan60 ? Steinberg Press, Inc.
  • vol. 20 no. 6 Dec32 B175731 R250145 18Jan60 ? Steinberg Press, Inc.

Of these, only "Worms of the Earth" is listed by Paul Herman as public domain. However, all three appear in collections of public domain stories, such as Wings in the Night: The Weird Works of Robert E. Howard, Volume 4 (Wildside Press), which was edited by Paul Herman. If anyone is going to know about this copyright voodoo it's him but my sources are confusing me now.

So, are these stories in the public domain or not? I've always (or for as long as I've known about and cared about the issue) thought they were but now I can't tell.

This is mostly curiousity as it doesn't actually affect the aforementioned personal project which, if anyone is interested, is trying to scan copies of Weird Tales in order to post them on the internet. I can't afford 1932 issues of Weird Tales anyway so, as I said, it isn't going to affect me (I'm about a third of the way through Volume 36, Issue 1 (September-October 1941) at the moment, which doesn't include any Howard material, although is does have a Clark Ashton Smith poem).

Still, I'd like to know and it might come up some time in the future (if I suddenly become rich perhaps).

#197 Mikey_C

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Posted 23 August 2010 - 08:17 PM

Have you checked this thread?
Visit my blog: Necronomania

#198 Alpha Beta Mu

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Posted 24 August 2010 - 12:34 PM

Have you checked this thread?


Yes, but unfortunately it didn't help. The topic is possibly a bit too arcane (and by arcane, I mean sacrificing a chicken and examining the entrails will probably give a more straightforward answer than actual copyright law). Still, as a result of various things, starting with my interest in Wikipedia and Wikisource, into my current project to scan some of my pulps (and later books) that happen to be in the public domain, I've picked up some details about copyright.

As far as I am aware: REH did not independently file copyrights, which transfered ownership to Weird Tales (or whomever) upon publication. Under the laws of the time, copyright had to be renewed 28 years after the initial claim (for 1932 this would mostly be 1960 but could be 1961). If REH had lived until 1960, he would have had the right to renew the copyright himself (unless he transferred that right to Popular Fiction, publisher Weird Tales, in some way). As he did not, copyright was vested in Popular Fiction, who would have been able to renew if they hadn't gone bust. As it happens, it looks like Steinberg Press had bought the rights by 1960 (Weird Tales is mostly public domain because, as far as I can tell, whoever owns it soon goes bust), and did renew. As they did this, I think they hold the copyright until 2027. However, I also think they went bust themselves and I have no idea what happened to the rights after that.

Canadian law seems simpler. Anything published before 1960 or after 2002 is now in the public domain there. Weirdly, I have no idea what the situation is in my own country, the United Kingdom, but it's probably similar to Canada for the most part.

#199 godzilladude

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Posted 25 August 2010 - 06:56 PM

Are you planning to publish in the UK? If so, then UK law is your issue, not US law.

And, The Weird Works set does include some copyrighted works, we just worked out an arrangement.

#200 Alpha Beta Mu

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Posted 31 August 2010 - 05:56 PM

Are you planning to publish in the UK? If so, then UK law is your issue, not US law.

Online publishing, which is almost certainly all US based. Well, "release" more than "publish" as they'll be free, public domain files if I ever get them finished. Places like the Internet Archive (California) and the Wikimedia Foundation (Florida). Maybe one or more file sharing sites too; such as Megaupload (Hong Kong, apparently) or RapidShare (Switzerland), which might solve the problem but English language copyright laws are enough for me, I don't really want to start looking into Chinese or Swiss law as well. I know of no UK based equivalents.

And, The Weird Works set does include some copyrighted works, we just worked out an arrangement.

At least I've found the (latest) source of my confusion. I really thought it was all PD.

I have realised since posting that the 1932 issue might come up with the re-release magazines like Avon Fantasy Reader. So, this is a little more practical than I thought.

Anyway, thanks to both of you for the replies.





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