Inspired by 19th Century Imperial Robes (Copyright & Design) Reply

Splendid 19^th century imperial robes from China inspire modern fashion designs in a new costume exhibit at the Metropolitan Museum of Art (titled: China Through the Looking Glass).  A fascinating element of this exhibit is that the imperial robes and the modern, couture gowns are displayed side-by-side.  While the styles, silhouettes and lines of the old and new fashions are drastically different, the inspiration linking the old and new is clear, including, borrowed colors, designs and artwork.

Borrowing colors, designs and artwork isn’t always free and easy.  Copyright laws in countries around the world vest the original creators and owners of designs and artwork with a bundle of exclusive rights to control the use and copying of their original designs and artwork.  However, these exclusive rights only last for a finite period of time. The duration of these exclusive rights varies country by country depending upon the national copyright laws.  The copyright laws in each country outline the length of time that the exclusive rights last (also known as the “term of copyright”).  Once the term of copyright expires, the work becomes part of the public domain and is free to use and copy.

Treat yourself to a visit of this exhibit, if you can. I give it two glamorous thumbs up.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: other blog posts on public domain at http://wp.me/p10nNq-ft and www.iplegalfreebies.wordpress.com/category/public-domain; a blog post on Traditional Knowledge of indigenous people and tribes which can be an exception to public domain works at http://wp.me/p10nNq-AC; information about the MET costume exhibit at http://www.metmuseum.org/exhibitions/listings/2015/china-through-the-looking-glass/images; @iplegalfreebies and www.kasterlegal.com.

 

Happy Birthday Shakespeare (Your prose… a public domain goldmine) 2

William Shakespeare turns 450 today.  His masterful use of language keeps his plays popular, relevant, in production and available to us all as literary treasures in the public domain.  Public domain works, like Shakespeare’s plays, are available for the public to use, copy, distribute, perform, quote, sample and make derivative works from… for free.  Shakespeare’s plays are in the public domain because they are nearly 400 years old.  (Here in the United States, works published before 1923 are in the public domain).

It’s important to note that newer productions, translations or works based on Shakespeare plays may still be covered by copyright protection… and may NOT be in the public domain.  For example, movies of Shakespeare plays are “new” enough to still be covered by copyright.  The length of time that a play or other creative work is protected by copyright, and the timeline for when works enter the public domain varies country by country.

Happy Birthday Shakespeare!  Thank you for your stellar intellectual property!  “…can one desire too much of a good thing?”

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: earlier blog posts on the topic of “public domain,” https://iplegalfreebies.wordpress.com/category/public-domain/; other copyright and public domain resources, http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; ending quote from, As You Like It; @iplegalfreebies and www.kasterlegal.com.

Are Sherlock Holmes characters and story elements copyrighted? Reply

A lawsuit over the FREE USE of the Sherlock Holmes characters and story elements prompted the US District Court in the Northern District of Illinois to do some detective work into the famous, fictional detective to determine whether Holmes, other characters and story elements of Sir Arthur Conan Doyle’s books and stories had entered into the public domain.

The lawsuit, Klinger v. Conan Doyle Estate, raises two interesting copyright questions:  1) what are the copyrightable elements of a literary work; and 2) when do copyrightable elements of a literary work enter the public domain and become available for free public use.

As a bit of background info, Sir Arthur Conan Doyle authored four novels and 56 short stories featuring Sherlock Holmes and Dr. Watson and published these in the US over a span of 30 years (from 1890 – 1926). As one might expect, new characters and plot elements were introduced in the novels and short stories over time.  Hint: these details are critical to the court’s analysis of the copyright questions raised in the case.

QUESTION 1: Copyrightable Elements of a Literary Work.  The court held that copyright protection extends to characters, character traits, and storyline because these are copyrightable “increments of expression.”  By contrast, the court reiterated a general tenant of US copyright law that “ideas, plots, dramatic situations and events” are not elements in a literary work that are protected by copyright.

QUESTION 2: When Do Copyrightable Elements of Sir Author Conan Doyle’s Literary Works Enter the Public Domain and Become Available For Free Public Use?  The short answer is that his works published prior to 1923 are in the public domain.  Since Sir Author Conan Doyle published works featuring Sherlock Holmes and Dr. Watson both before and after 1923, the court analyzed the publication dates of the works and the introduction of various copyrightable “increments of expression” (including characters, character traits and storyline) to determine which were published pre-1923 and post-1923.  Those published pre-1923 are in the public domain and those published post-1923 are still protected by copyright.

Interestingly, some of the post-1923 characters, character traits and storylines that were at issue in the lawsuit and held by the court to be still protected by copyright are: 1) Dr. Watson’s second wife (introduced in 1924); 2) Dr Watson’s background as an athlete (introduced in 1924); 3) and Sherlock Holmes’ retirement from his detective agency (introduced in 1926).

Only 10 of Sir Author Conan Doyle’s works featuring Sherlock Holmes and Dr. Watson were published in the US post-1923 and are still covered by copyright protection.  The 50 earlier works are in the public domain, which means that “increments of expression” including characters, character traits and storyline (most notably Sherlock Holmes and Dr. Watson) are available for the public to use for free without a license.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

This summary is based on the Memorandum Opinion and Order issued by the United States District Court for the Northern District of Illinois in a ruling on the plaintiff, Klinger’s, motion for summary judgment against the Conan Doyle Estate.   See also: earlier blog posts on the topic of “public domain,” https://iplegalfreebies.wordpress.com/category/public-domain/; other copyright and public domain resources, http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; @iplegalfreebies and www.kasterlegal.com.

Copyright: composing new music intertwined with Schubert fragments Reply

Copyright automatically vests in original music compositions.  Originality is key to copyright and the music composed by Maestro Luciano Berio to complete an unfinished symphony, in D major, by Schubert is a fantastic work that offers an interesting opportunity to take a closer look at copyright, copyrightable works and the public domain.

Franz Peter Schubert (1797-1828) was a prolific composer who composed numerous masterpieces including sketches of a symphony, in D major, that would have been his 10^th symphony.  Schubert died before completing the symphony and left behind the sketches of the unfinished piece, including notes on instrumentation, which are in the public domain and free to use, copy, perform and create derivative works of.

Over a century later, the maestro and composer Luciano Berio (1925-2003) undertook the task of completing Schubert’s unfinished symphony.  Berio composed original music that weaves together Schubert’s sketches into a completed work that can be performed and enjoyed by us all.  (Berio referred to his work as “the cement-work”).  Back to our copyright analysis… Berio’s original composition that pieces together Schubert’s sketches is copyrightable because it is an original music composition.  Because Berio’s music is copyrighted, permission is required to use, copy, perform and create derivative work of his work. (…Schubert’s sketches are still fair game).

Berio has been praised for completing Schubert’s composition (titled Rendering) in a style and manner that sounds “Schubertian”.  (Listen: http://www.youtube.com/watch?v=-76EhKzEsPM&feature=related)

See also:  Conductor David Robertson talks about Schubert & Berio’s Rendering: http://www.youtube.com/watch?v=-NfoOAm7Fvo; a US copyright registration for a sound recording of Rendering; http://www.bachtrack.com/review-mostly-mozart-festival-2012-malkki-berio-rendering-ohlsson-beethoven; http://composers21.com/compdocs/beriol.htm;  http://www.classicalarchives.com/composer/3308.html#tvf=tracks&tv=about;iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Copyright Status restored to foreign works – removing works from public domain 1

Last week, The US Supreme Court mandated copyright restoration for foreign works that are covered by copyright protection in their country of origin or the country where copyright protection is claimed. This renewed respect for foreign works, removes a bulk of works out of the public domain and vests them with copyright protection. This means that many foreign works will no longer be free to perform, record, copy or make derivative works of here in the US. For example, Prokofiev’s ‘Peter and the Wolf’ which has been free to use in the US since it has been in the public domain, has had its copyright restored and will require the same permissions and usage fees as Copland and Bernstein…. who are Prokofiev’s contemporaries and who still enjoy copyright protection of their music. (Now an orchestra could be expected to pay approximately $800 per performance of Peter and the Wolf). Evidently, J.R.R. Tolkien’s writings, Alfred Hitchcock’s films and Pablo Picasso’s paintings are also among the foreign works with newly restored copyright protection.

The reasoning behind this copyright restoration is largely based on international foreign policy. As the court points out in its holding… the US has taken a ‘minimalistic approach’ to complying with the Berne Convention for the past two decades… and this copyright restoration of foreign works is a significant step toward US compliance with the treaty. There are 164 counties signed onto the treaty and the one of the many terms of the Berne Convention is that member states offer reciprocal copyright protection. Interestingly, this could be a significant step towards an international copyright system.

If you are already using ‘Peter and the Wolf’ or other restored works, the court’s holding speaks to a grace period for parties who are currently using or exploiting the restored works and encourages negotiations to determine reasonable compensation.

(Tolkien’s heirs come to mind as the ‘Lord of the Rings’ movie extravaganza could lead to interesting negotiations if an agreement hasn’t already been made.)

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

More information: The US Supreme Court case is Golan v. Holder. The holding is also available at www.supremecourt.gov; The Berne Convention, Article 18 at http://www.wipo.int/treaties/en/ip/berne/; Other articles on the subject: http://www.nytimes.com; http://online.wsj.com; http://www.legalnewsline.com/news/234980-peter-and-the-wolf-must-be-paid; http://orchestralworks.blogspot.com/2008/09/prokofiev-peter-and-wolf.html; @iplegalfreebies and www.kasterlegal.com.

Works in the Public Domain are FREE to use 2

Music and other published works that are in the Public Domain are free to use; since, they are not under copyright protection and therefore do not require any permissions from the author (or former copyright owner) to be used. Works that are in the public domain are free for the taking, sampling, using, copying, reproducing, recording and distributing.

Typically, works in the Public Domain are very old works. For example, ancient published texts like the “Bhagavad Gita” (a pre-Christian, Sanskrit text) are in the public domain…. as well as “newer-old-works” like the Shaker song “Simple Gifts” (music and lyrics written in the United States in the mid 1800’s). The original text, music and lyrics of the works are in the public domain. However, newer translations or compositions based on the original works… as well as sound recordings and arrangement elements of these newer versions are likely covered by copyright protection…. and NOT in the public domain.

What works are in the public domain? Any work or musical score that was published in the United States before 1923 is in the public domain, due to expiration of copyright. Newer works can also be dedicated to the public domain and if a work failed to meet the requirements for copyright protection it will also be in the public domain. Generally, a case by case analysis should to be done on works published in 1923 or later to determine if they are in the public domain because, it’s not always obvious. [Would you have guessed that the Happy Birthday Song is still covered by copyright protection… and not in the public domain?]

Keep in mind that copyright duration and the timeline for works entering the public domain vary country by country.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; @iplegalfreebies and www.kasterlegal.com.