Spielberg Accused Of 'Stealing' Plot For A Movie?

from the you-can't-copyright-a-plot dept

Another day, another silly attempt to own an idea that will backfire badly. It would appear that the guy who owns the rights to a short story, It Had to Be Murder, which was the basis for the famous Alfred Hitchcock movie, Rear Window is now suing Steven Spielberg for copyright infringement, because Spielberg produced the movie Disturbia last year, that had similarities to Rear Window. This seems like a huge stretch, no matter how you look at it. While legal scholars may still be debating the question of whether or not you can copyright a "plot," for the most part, you cannot. The idea itself is not copyrightable, it's the expression of the idea. And while everyone involved with Disturbia admits that it was inspired by Rear Window, there's nothing illegal about being inspired by something -- otherwise, we'd have very little new content generated ever. Once again, this seems like someone who had nothing to do with someone else's creative work coming along and demanding payment.


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  1.  
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    JT, Sep 9th, 2008 @ 10:35am

    Always Stretching

    Having seen both I can see the "inspiration" but I can't see how they could claim that it was stolen.

     

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    Anonymous Coward, Sep 9th, 2008 @ 10:38am

    just another in a long line of Hollywood ripoffs. There seems to be a studio formula for this exact type of "inspiration". Generally they take a successful movie and either change the sex of the main character or the race. Happens all the time and it gets really tired. I'm sure you can think of a ton of these examples:

    Original: Big (male kid "grows up" and has adventures)
    Copy: 13 Going on 30 (female kid "grows up", same)

    Original: National Lampoons Vacation (White Family)
    Copy: Johnson Family Vacation (Black Family)

    Original: Guess Who's Coming to Dinner (White Family Black Guest)
    Copy: Guess Who (Black Family White Guest)

    ...

     

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    Mike (profile), Sep 9th, 2008 @ 10:57am

    Re:

    Happens all the time and it gets really tired.

    Yeah, I mean, what were those West Side Story folks thinking in ripping off Shakespeare?

    And, frankly, what did Shakespeare think HE was doing in ripping off the story of Amleth in writing Hamlet.

    Those thieves!

    Or, perhaps you should recognize that inspiration from others, and building on their works is what leads to new creativity.

     

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    PaulT (profile), Sep 9th, 2008 @ 10:59am

    If anything else, this is just another example of how the copyright system is broken. Disturbia is clearly inspired by Rear Window in the same way that, say, Independence Day was "inspired" by War Of The Worlds and V. There are similar setups and key plot points, but the rest is new work within the confines of the genre (how many variations of an injured guy stuck in a house being stalked can there really be?).

    However, here's the timeline: An author writes a short story which is turned into a well-respected movie. Over 50 years later, that movie is the inspiration for a new movie. The estate of a man who bought the rights to the story (note: NOT the author's descendants) sue the makers of the new movie.

    In my mind, there are so many problems with this. None of the people who created the original movie or short story were alive when the new movie was written, so it does not affect them in any way. By the looks of things, the descendants of the original author and the movie's writer, director, etc. will get nothing because the rights are owned by the producer's estate (producers are usually responsible for financing the movie and often have no direct creative input).

    For all the crap that's spouted about "protecting artists' rights" and ensuring income, all this really does is stifle future creativity in an industry where that is sorely lacking right now. I'm sure some of the resident trolls here can explain why protecting income from a piece of art from 50 years ago, for people who had nothing to do with its original creation, is so important.

     

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    hegemon13, Sep 9th, 2008 @ 11:03am

    Re:

    Heck, Asylum Entertainment has built their whole business model of off blatant, low-budget rip-offs, like "Transmorphers" and "Snakes on a Train." They even copy the cover of the big-budget movie as closely as they legally can. No one is suing them. Why? Because they can't. You can't copyright an idea, only its expression. And I promise, Asylum's "expression" (read: production value, talent, etc) does not resemble the movies they rip.

     

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    Anonymous Coward, Sep 9th, 2008 @ 11:07am

    He is a thief

    Speilberg ripped off JabberJaws too . . .

     

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    Anonymous Coward, Sep 9th, 2008 @ 11:10am

    Re: Re:

    "Or, perhaps you should recognize that inspiration from others, and building on their works is what leads to new creativity"

    So, The Dukes of Hazzard movie or another Alvin and the Chipmonks remake, this is the type of Hollywood creativity you equate with insperations for Hamlet? I dunno, I think your hearts in the right place anyway.

     

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    PaulT (profile), Sep 9th, 2008 @ 11:24am

    Re: Re: Re:

    Apple and oranges, AC. You cite the worst dregs of Hollywood to try and refute the very real point that many of the classics of modern literature and cinema were in fact themselves derivative. Weak.

    This is something that's been happening since cinema was invented. For example, it's only thanks to bootleg copying that we have access to F.W. Murnau's silent movie classic Nosferatu, as the Bram Stoker estate successfully prosecuted it for copyright infringement and attempted to have it destroyed.

    Just because Dukes Of Hazzard was lazy trash, that doesn't mean that there's no merit in other remakes, say, The Departed or Twelve Monkeys. Not to mention the hundreds of other classic movies that were themselves clearly inspired by other classic movies or literature without being direct remakes.

     

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    Anonymous Coward, Sep 9th, 2008 @ 11:28am

    Re: Re: Re:

    Here's a crazy idea - judge the movie on it's own merits, rather than whether or not it's plot is "stolen"!

    Sorry, I'll take my lunatic raving elsewhere . . .

     

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    Anonymous Coward, Sep 9th, 2008 @ 11:57am

    Re: Re: Re:

    There is more to Hollywood than Dukes of Hazzard and Alvin of the Chipmonks.

    Like the rest of the world, the real gems are rare. Most people are sheep or in it for a quick buck.

    What about Cloverfield? It is just a Godzilla movie. The way it was done though... That experience was far more satisfying for me.

    Or how about Kiss Kiss, Bang Bang? Nothing really original about the storyline or anything but that is a very amusing movie.

    Or the original Star Wars?

    Hell even the first two Mummy movies with Brenden Fraiser were fairly good.

    Oh, and don't let Shakespear's literary stature fool you. The language may be flowery, but that's just how the translation to modern tongue works. It's not nearly as refined as some would have you pretend.

     

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    Anonymous Coward, Sep 9th, 2008 @ 12:12pm

    It's been done (successfully) before...

    Look up the history on "The Island" (recent) versus "Clonus" (from the 70's). Spielberg eventually paid.

     

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    Nick Stamoulis, Sep 9th, 2008 @ 12:39pm

    Steven Speilberg will likely win - just seems a bit ridiculous and unfounded.

     

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    DS78, Sep 9th, 2008 @ 12:51pm

    What about

    ... I Am Legend and 28 Days Later. Weren't they based on the same original?

     

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    Anonymous Coward, Sep 9th, 2008 @ 12:58pm

    Re: It's been done (successfully) before...

    Paid what?
    http://en.wikipedia.org/wiki/The_Island_(2005_film)

    The Island was a Michael Bay film...Speilberg didn't do it.

     

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    Anonymous Coward, Sep 9th, 2008 @ 1:02pm

    He should have gotten it for free and then let everyone in for free. Yay, free works.

     

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    Mike, Sep 9th, 2008 @ 1:02pm

    Stealberg

    Lol the guy has made a career of using other peoples ideas without giving credit, even the costumes in starwars were someone else idea before he took em, but don't dare critisize him on the net... lol fucking geeks

     

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    Jake, Sep 9th, 2008 @ 1:02pm

    Re:

    I have to point out that there's 'inspired by' and then there's 'blatantly derivative of'. On the other hand, the line between the two is both fine and indistinct, and deciding which side of it a particular work is on is a job better left to critics than to lawyers.

     

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    PaulT (profile), Sep 9th, 2008 @ 1:03pm

    Re: Re: It's been done (successfully) before...

    The Island was made for Dreamworks, which was partly owned at the time by Spielberg so he may have been involved in the settlement in some tangential way.

     

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    PaulT (profile), Sep 9th, 2008 @ 1:08pm

    Re: What about

    I Am Legend is a pivotal sci-fi work, which has been translated onto screen officially 3 times (The Last Man On Earth, The Omega Man and I Am Legend).

    However, its opening portion (with a man waking up to find he may be the last man alive only to fight for the survival of the human race) has been imitated in many works as varied as the 1980s New Zealand movie The Quiet Earth, an episode of The Simpsons and, yes, 28 Days Later while it was also an acknowledged inspiration for the original Night Of The Living Dead among others.

    Whether 28 Days Later's opening was "inspired by" or "based on" Matheson's story is debatable but it's definitely its own work.

     

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  20.  
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    PaulT (profile), Sep 9th, 2008 @ 1:13pm

    Re: Stealberg

    Spielberg directed Star Wars? News to me...

    If you're going to accuse people of theft, at least ensure they're responsible for the product.

     

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  21.  
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    Anonymous Coward, Sep 9th, 2008 @ 1:18pm

    Valuation of a good production

    I wondered why no one has remade or created derivative works of Hitchcock prior to this story. Could the copyright holders have priced the licensing rights of what the market can bear? Also, using Spielberg by name (not addressing his Production Company) just seems to add the the hubris the current copyright holder has.

    The amount of new works (Derivative or not) going to market under this Copyright and Patent grandstanding business model has little value to the general public. It seems the only alternative is parody works. It could actually be a good idea to support a series of parody Hitchcock movies (In the spirit of the "Scary Movie" Franchise) to expose a new generation to Hitchcock.

    It seems you can spend the money and have a film that shows great production values. On the other, you can do it with low production value, include dated pop culture throughout, and release it as parody.

    At least Spielberg did it well.

     

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  22.  
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    PaulT (profile), Sep 9th, 2008 @ 1:32pm

    Re: Valuation of a good production

    "I wondered why no one has remade or created derivative works of Hitchcock prior to this story."

    Erm, you're being sarcastic right?

    Just in case - Hitchcock remade The Man Who Knew Too Much himself. Since then (off the top of my head), there's been official remakes of Rear Window (in the 90s with Christopher Reeve), Dial M For Murder (as A Perfect Murder) as well as the infamous Psycho remake. As for derivative works? Try every film Brian De Palma ever directed for starters...

    If you're not being sarcastic, yeah, it's a shame that trash like Epic Movie can be produced with no fear of comeback and even a moderately successful film like this can be attack with lawsuits from people who may not even have been alive when the original was produced.

     

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  23.  
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    Anonymous Coward, Sep 9th, 2008 @ 1:41pm

    Re: Re: Re:

    Kids LOVE Alvin and the Chipmunks, end of story. Kids movies don't have to be cinematographic masterpieces. The Nemo's and Shrek's are as few and far between as adult classics like Gone with the Wind or Shawshank Redemption. They exist for the purpose of entertaining kids and kids love em. That fact alone justifies their existence.

    NEXT!

     

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  24.  
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    Bob, Sep 9th, 2008 @ 1:50pm

    Way OT...But has anyone.....

    Has anyone else noticed that what is coming out of Hollywood of late is nothing but regurgitated ideas of years gone past?

    I'm serious about this, it seems, at least to me, that Hollywood has run out of original ideas and instead of trying to write something original, most are writing ideas based on something that was already done some years ago, but has a twist, either changing the main character's sex, or sexual identity.

    It's no wonder that the INDIE labels have garned most of my attention lately, and the attention of millions of others, so how is Hollywood surviving? Perhaps it's the lemmings running behind, baaing at everything Hollywood throws at them.

    I say leave Hollywood to it's unoriginal uninspired self, and take a close look at either INDIE's or Foreign publications.

     

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    Brian, Sep 9th, 2008 @ 2:10pm

    No way

    His movies have never had plots so this can't be true

     

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    Anonymous Coward, Sep 9th, 2008 @ 2:18pm

    Re: Re: Re: It's been done (successfully) before...

    Correct.

    Michael Bay "directed" the Island. But DreamWorks was behind it.

    I lived next door to one of the plaintiffs when the suit was filed. It was Spielberg that got sued, and Spielberg (via Dreamworks or otherwise) that paid a 7-figure sum.

    "DreamWorks and Clonus' *associates* reached a seven-figure settlement"

    Those associated included Spielberg, since apparently Steven sent the screenplay to Bay...

    http://seattletimes.nwsource.com/html/movies/2002394690_islandripoff.html

     

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  27.  
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    Anonymous Coward, Sep 9th, 2008 @ 2:32pm

    For Clueless Mike

    Profound coming from a person who has no idea what (or who) he's talking about and has no concept of punctuation.

    I'd much rather be called a geek than utterly incompetent.

     

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    Anonymous Coward, Sep 9th, 2008 @ 2:37pm

    Re: Re: Valuation of a good production

    You completely forgot High Anxiety!! :) At least the Mel Brooks parodies weren't written, cast and shot in a day with 80-90 minutes of one liners.

     

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    PaulT (profile), Sep 9th, 2008 @ 2:44pm

    Re: Re: Re: Valuation of a good production

    Yeah, I loved that movie as a kid... Might have to watch it again soon!

     

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    LostSailor, Sep 9th, 2008 @ 2:52pm

    Re:

    I agree that on the surface this seems to have little chance of success (without reading the actual filing and response I don't know that there aren't other legal relationships that might impact this).

    But anyone can sue over just about anything, so just the fact that a suit was filed doesn't mean the copyright system is "broken." Bent, I'll agree with. This is a prime example--the estate of a man who bought the original rights from the writer who is also dead--of why copyright should be reformed so that it doesn't exceed the life of the actual author.

    But I have a question: If copyright is broken, what should replace it? Is it just the length of copyright? Should it revert to the 1790 version (14 years, with a 14 year extension possible)? The 1831 version (28 year, 14 year extension? Something else?

    The same issues and the same arguments raised in this forum have been debated, legislated, and adjudicated for hundreds of years.

     

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    LostSailor, Sep 9th, 2008 @ 2:54pm

    Re: Re: Valuation of a good production

    They're remaking "The Birds" for release next year. With Naomi Watts.

     

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    PaulT (profile), Sep 9th, 2008 @ 2:56pm

    Re: Re: Re: Valuation of a good production

    Better than the TV movie "sequel" they made in the 90s *shudder*

     

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    PaulT (profile), Sep 9th, 2008 @ 3:02pm

    Re: Re:

    Since the original intent of copyright was to encourage new works, the idea that copyright should be extended so far past the death of the author is ridiculous.

    I'd say that an automatic 20 years would be fine (a fairly arbitrary figure, but plenty of time for an author to monetise his work) with the option to extend after that. Heirs should be able to apply, but post-mortem extensions for unrelated persons or corporations should not. this would remove the possibility of silly situations like this, as well as preventing long-term orphaned works.

    It's a tricky subject, but the current system is way to weighted towards corporate entities rather than artists.

     

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    LostSailor, Sep 9th, 2008 @ 3:41pm

    Re: Re: Re:

    Yes, the original intent was to encourage new works, but at least half of that encouragement was to provide protection to authors to encourage them to create new works.

    We'd probably argue over the term; I think 20 years to short. Even with extensions. Extensions have been used for hundreds of years, and proved to be cumbersome, which is why they were eliminated in the 70s. I'd favor life of the author, with maybe a period for an estate if the copyright was less than 10 years old.

    Orphan works is a definite issue, one that is actually (but very slowly) being dealt with in Congress as it's a particularly vexing issue in the academic community. I'd expect some change on that within five years or so, with a formal process to declare a copyright "orphaned" and to deal with authors who subsequently appear claiming such.

    I agree that corporations have distorted the issue, but corporate copyrights are important, too. Still I'd put this at the same term for average life expectancy of a human: say 75 years. But corporations will fight any change tooth and nail.

     

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    LostSailor, Sep 9th, 2008 @ 3:44pm

    Re: Re: Re: Re: Valuation of a good production

    Well, it is Naomi Watts. Improvement right there. Gotta love blonde Aussie Sheilas!

     

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    Nobody, Sep 9th, 2008 @ 4:13pm

    Re: Re: What about

    I don't mean to be nitpicky, but that scene in 28 Days Later wasn't the opening scene, it was the second one. The opening scene was when those guys broke into the research facility and let that monkey out.

     

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    PaulT (profile), Sep 9th, 2008 @ 4:17pm

    Re: Re: Re: Re:

    I think that 75 years is ridiculously long. If an artist has spent 20 years without being able to make a reasonable living from a work, why should extra time make any difference? The problem with the current system is that it encourages sloth - too many one-hit wonders expecting a couple of songs they made 50 years ago to continue making them a living from the works without doing anything else. Why do people in the entertainment industry expect to be able to retire on something they did that long ago while everyone else has to do new work to get paid?

    I said 20 years because that seems a reasonable amount of time to me (think about how much has changed since 20 years ago. Are there really artists who truly need to depend on work they did in 1988? If so, do they deserve that obsurity - have they decided not to work since or was the work simply not worth buying?).

    Extensions are good, but they were overused and should be limited (if not by total number of extensions then to X years after death), and they´re the best way to stop works being orphaned. How many 1920s animations are being lost because they are orphaned and Disney don't want Steamboat Willie to go public domain? How many acts are forgotten because they released their debut album in the same year as The Beatles and their label disappeared?

    There are movies from the 1980s and before that have been held up from being distributed legally on DVD for years, and may never get a release. These include movies like Night Of The Creeps, which has a strong cult following demanding a re-release. Imagine how many movies without such a following could be lost because people are forced to wait until 75 years after their author died. Yes, some other process could come into play to avoid orphans, but I've yet to see one that wouldn't be encumbered by years of expensive paperwork or high costs for getting it wrong, defeating the object.

    As for corporate copyright - why should that be longer than that for an individual?

    Those are my opinions anyway. I know that none of this is likely to come into play because Disney still want to get their exclusive royalties from Snow White and some musicians are afraid to face the fact that they forgot to save the last 50 years' worth of royalties for their pensions. It's not right whichever way you look at it.

     

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    LostSailor, Sep 10th, 2008 @ 7:47am

    Re: Re: Re: Re: Re:

    I think that 75 years is ridiculously long. If an artist has spent 20 years without being able to make a reasonable living from a work, why should extra time make any difference?

    If you're referring the the current law (life of the author, plus 75 years), I agree completely. If you're saying a copyright term of 75 years period, I don't. But more important, what is a "reasonable living" from a work? $50,000 total? $50,000 a year? Why not eliminate copyright when the income from a work reaches a specific level? And, most important, who gets to decide what a "reasonable living" is? You? Congress?

    My rationale for limiting copyright to the life of the author is that it's the author's work and the author should be able to benefit from that work while they're alive. If there were some sort of incentive for that author to make the work public domain before the end of the term (such as a one-time tax break for relinquishing copyright) that would encourage authors/artists to release financially non-performing works to the public.

    The problem with the current system is that it encourages sloth - too many one-hit wonders expecting a couple of songs they made 50 years ago to continue making them a living from the works without doing anything else. Why do people in the entertainment industry expect to be able to retire on something they did that long ago while everyone else has to do new work to get paid?...Are there really artists who truly need to depend on work they did in 1988? If so, do they deserve that obsurity - have they decided not to work since or was the work simply not worth buying?).

    If the artists are still making a living resting on the laurels of one hit 50 years ago, it means that the "hit" is still selling. So they should be deprived of income from their work just because the work is old? I once knew a guy who wrote and recorded a song that didn't really sell. But when a major star picked it up and had a huge hit with their version, this guy made millions in songwriting royalties. He kept writing and performing, with some modest success, but it was the royalty income that allowed him to have a nice--not wildly posh--condo and put his kids through college.

    Is that an unreasonable income? When a major corporation picked up the song years later for an advertising campaign, his royalty income picked up again. Is that unreasonable?

    I only ask, because what is "reasonable" is different for different people and circumstances.

    How many acts are forgotten because they released their debut album in the same year as The Beatles and their label disappeared?

    To echo your comment above, don't these acts deserve their obscurity? If their record labels disappeared, the rights to the songs should have reverted to the artists.

    As for corporate copyright - why should that be longer than that for an individual?

    It shouldn't. The reason Disney is so anxious about early animations is that law at the time they were created was different, having a fixed term regardless of how long an author lived. Now, the base term is the life of the author, which is significant in terms of corporations.

    Now, I'm not a lawyer, and I have not researched all the nuances of corporate copyright, but my understanding is that the push to include "life of the author" was prompted in part by the fact that corporations are considered "persons" under the law, and properly handled never actually "die". So corporate copyrights are in effect perpetual. My suggestion was to level the playing field for all copyright holders and set the term for corporations at the average life expectancy of the average adult (averaging male and female life expectancy): 75 years was just a general guess, but it seems reasonable for a corporate copyright.

    Disney and others will fight every step of the way; if change is going to come to copyright law, it's going to be a compromise and anyone advocating lowering the limits on terms must provide a rationale that will convince most people (and most Congress people) as being reasonable reforms. You may think 20 years reasonable, but I think it unrealistic for the reasons outlined above.

     

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    DanC, Sep 10th, 2008 @ 8:47am

    Re: Re: Re: Re: Re: Re:

    If the artists are still making a living resting on the laurels of one hit 50 years ago, it means that the "hit" is still selling. So they should be deprived of income from their work just because the work is old?

    You're confusing an end product with the work required to create that product. By your logic, I should be getting royalties from every computer I've ever fixed for the duration of my life. But that doesn't make any sense - I should be (and was) paid once for the work performed. Although it would be nice, there's no way I should be receiving money from repair work I did years ago.

    So, there is no actual deprivation. The real question is why do artists deserve to be paid multiple times for work performed years ago. They deserve to be rewarded for their efforts certainly, but copyright isn't necessarily the best way to accomplish that goal.

    Now, I'm not a lawyer, and I have not researched all the nuances of corporate copyright, but my understanding is that the push to include "life of the author" was prompted in part by the fact that corporations are considered "persons" under the law, and properly handled never actually "die". So corporate copyrights are in effect perpetual

    Your understanding is off. Works for hire are copyrighted for 120 years after creation or 95 years after publication.

     

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    PaulT (profile), Sep 10th, 2008 @ 9:36am

    Re: Re: Re: Re: Re: Re:

    "But more important, what is a "reasonable living" from a work?"

    Whatever a person can make. My opinion is that music, movies, etc. are art first. Art belongs to our culture, but we allow artists a temporary monopoly as an incentive for new works. However, if a person cannot work out how to make money from that after 20 years, nor create other works that generate an income, legal protection doesn't do much.

    Copyright is meant to be an incentive to create further works, not a pension plan.

    "My rationale for limiting copyright to the life of the author is that it's the author's work and the author should be able to benefit from that work while they're alive"

    A 20 year copyright would still allow that. Remember, if a work goes out of copyright, that does NOT mean that the author can no longer make money from it but that they no longer have a guaranteed monopoly. Big difference. Although again, an author should be able to extend copyright until their death if desired, but not have a guarantee (causing orphaned works, etc.).

    "If the artists are still making a living resting on the laurels of one hit 50 years ago, it means that the "hit" is still selling."

    There are many buildings and sculptures that are still changing hands and enjoyed many times, many years after they were built yet we don't expect architects, sculptors and builders to get royalties. We expect those people to do new things to earn a living - why should musicians be an exception to that rule just because one of their performances was recorded, even when they weren't the ones who wrote the song?

    Anyway, as mentioned many times, my issue is not that musicians are being paid for their old performances per se, but rather that so many other works are blocked from release because of the copyright rules set up to protect those recordings.

    Once again, loss of copyright does not mean loss of income, it just means that others have access. For example, if an artist has a contract for royalties with Warner Brothers and then the album goes out of copyright, that does not mean that the artist can no longer earn royalties. It means that WB are no longer the sole entity allowed to release the music.

    It also means that the artist is free to retrieve their original recordings from WB and release the songs themselves if they feel WB are mismanaging their music - many artists have re-recorded their own hits in order to get properly paid as they hold the rights to the song but not the recording.

    "To echo your comment above, don't these acts deserve their obscurity? If their record labels disappeared, the rights to the songs should have reverted to the artists."

    Again, orphaned works are the big concern. Songs *should* revert back to the artists but it's not always clear who actually owns the rights and thus many artists are left without the rights to their own work.

    A great example - think back to when The Beatles were new on the scene. They were infamously turned down by labels who thought that guitar bands were on their way out and had no future. Now think of all the bands who were favoured by those labels at the time, and were dropped or sank into obscurity under the weight of the Beatles' success.

    Should those bands continue to not be paid because they signed up with the wrong label at the wrong time? Especially since the only real reason is to protect the incomes of those bands who weren't mismanaged?

    Also bear in mind that with The Beatles as an example that they don't even own the rights to a lot of their own work. Keeping copyright for their material doesn't necessarily help McCartney and Starr but whoever happens to own those songs (e.g. Michael Jackson or whoever he's sold the rights to since). There are also many musicians for whom the royalties are pocketed by the labels, not the artists - read the other articles here about UK copyright extension possibly only netting a few Euros per year for artists while making the labels millions.

     

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    LostSailor, Sep 10th, 2008 @ 10:23am

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    You're confusing an end product with the work required to create that product. By your logic, I should be getting royalties from every computer I've ever fixed for the duration of my life.

    If you could copyright your computer repair work and get a contract with the PC owner that would pay a royalty, you'd be set for life.

    The work required to write a bestselling novel may be much less than the work you put into to fixing a computer, but the rewards will be much different. This is not about the work put into creating content, it's about who has the right to the benefit of that work.

    Your computer repair work is no different than a work-made-for-hire (and thank you for correcting me on the work for hire copyright term; I should have known or at least looked it up!); you do the work, and are paid for it, but the benefit of your work (a functioning computer) goes to someone else. Should that person give up the fix you made after a period of time?

    Maybe that's a bad analogy, but equally bad to me is the reasoning that the author/artist shouldn't be paid for "old" work just because it's old.

    Copyright is a balance of the author's rights with the public benefit. We can argue about how long those rights should be protected. My take is that if the content creator is no longer alive, they can't possibly benefit from their rights to their work so those rights need not be protected.

     

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    LostSailor, Sep 10th, 2008 @ 10:58am

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    "But more important, what is a "reasonable living" from a work?"

    Whatever a person can make. My opinion is that music, movies, etc. are art first. Art belongs to our culture, but we allow artists a temporary monopoly as an incentive for new works. However, if a person cannot work out how to make money from that after 20 years, nor create other works that generate an income, legal protection doesn't do much.

    Copyright is meant to be an incentive to create further works, not a pension plan.


    If it's "whatever a person can make" then we're not talking about a "reasonable amount of money" but "as much money as possible". Which leaves the idea that if they can't work out how to do that in 20 years, protection doesn't matter. But if they're still pulling it in hand-over-fist after 20 years, they've obviously worked it out and protection matters very much, at least to them.

    I've posted in another thread about what copyright is meant to do, so I don't want to belabor it here, except to say that copyright is meant to balance the inherent right creators have to their content with the greater public good to be gained by the open dissemination of that content; the "monopoly" protection of that right encourages further creation of new work and the term of protection is the balance for the public good.

    my issue is not that musicians are being paid for their old performances per se, but rather that so many other works are blocked from release because of the copyright rules set up to protect those recordings.... orphaned works are the big concern. Songs *should* revert back to the artists but it's not always clear who actually owns the rights and thus many artists are left without the rights to their own work.


    We agree that orphaned works are an issue, but it's not necessarily primarily a copyright issue (though I would agree that the best solution to the problem is a modification of copyright law), it's more of a *contract* issue (as is the case you mention of artist retrieving their songs from record companies). Orphaned works are by definition works for which the copyright owner or the copyright licensee can not be identified or located.

    One solution I've seen proposed would be to modify copyright law such that if someone does due diligence in attempting to locate the copyright owner or licensee without success, that the work would be considered orphaned and the law should allow for either much less restrictive use or would be declared in the public domain. Yes, this would mean someone who wanted to re-release that obscure song from a 1957 garage band that was together for a year and only made one record, they would have to take step to show they tried to find out who held the copyright, and then they could release it at will. To me, that is a decent balance between a sort-of "final" protection of the artists' right and not losing older content. I'd be content with the idea that if they've done nothing to protect their rights (rather than done nothing to exploit the content) then they will lose them.

    Also bear in mind that with The Beatles as an example that they don't even own the rights to a lot of their own work. Keeping copyright for their material doesn't necessarily help McCartney and Starr but whoever happens to own those songs (e.g. Michael Jackson or whoever he's sold the rights to since). There are also many musicians for whom the royalties are pocketed by the labels, not the artists - read the other articles here about UK copyright extension possibly only netting a few Euros per year for artists while making the labels millions.


    Those are contract issues, not really copyright issues. The Beatles catalog is a slightly complicated history, but essentially they sold the rights and were paid for them (a few songs were left out). No copyright problem here, since the artists knowingly made a business transaction. That said, many musicians are "forced" into signing away their copyrights in order to get their music heard in the first place. That's a lamentable situation and there are other options given new technology (and Mike blogs about them frequently), but those are contract and business issues that should necessarily be addressed by changing copyright.

     

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    PaulT (profile), Sep 10th, 2008 @ 4:57pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    "But if they're still pulling it in hand-over-fist after 20 years, they've obviously worked it out and protection matters very much, at least to them."

    Hence my suggestion of allowing extensions up to a limited point. People who are successfully making money from their own work would be fine and are welcome to continue doing so. People who have not will still have to work at it, people who had no input into the original work cannot simply buy it and those who have lost their rights can regain them. I fail to see the problem with this.

    "the "monopoly" protection of that right encourages further creation of new work and the term of protection is the balance for the public good."

    Yes, that what it's meant to be, but the balance is no longer there. It needs to be redressed, and if a few artists who've done nothing worthwhile for 2 decades lose out, that doesn't bother me in the slightest.

    "One solution I've seen proposed would be to modify copyright law such that if someone does due diligence in attempting to locate the copyright owner or licensee without success, that the work would be considered orphaned and the law should allow for either much less restrictive use or would be declared in the public domain."

    The problem with that is that it places the burden of proof squarely into the hands of the entity who would potentially release that material. The main problem with orphaned works is not simply that the copyright owner cannot be found but that the cost of restoring often volatile nitrate film stock or decades-old, vastly degraded tape that require expensive restoration. This is often too much to justify tracking down the copyright owner and paying a licence fee. Your suggestion still requires significant financial outlay with no guarantee of return, so effectively does nothing the address the situation.

    Literally thousands of movies and countless music recordings have been lost - as in a part of our culture is no longer accessible - because the costs of even simply archiving them are too much, let along restoring them without any chance of making the money back. Placing them into the public domain would allow people to get their money back.

    To give a real world example: the discovery of cut footage from the silent 1927 sci-fi classic Metropolis which was until now thought lost. After it turned up in a film archive afew months ago, the footage can now be restored and released on DVD because it's in the public domain. Had Metropolis been covered by the current copyright system, the new footage may have been covered by copyright and thus still been effectively lost to the general public. The same with other "lost" classics such as London After Midnight or Edison's Frankenstein.

    "Those are contract issues, not really copyright issues."

    Contract issues would be irrelevant if the material was in the public domain.

     

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    DanC, Sep 10th, 2008 @ 6:35pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    If you could copyright your computer repair work and get a contract with the PC owner that would pay a royalty, you'd be set for life.

    That's not accurate. Copyright is applied to the end product, not the work. In any case, you're making my point for me - the situation I presented is obviously ridiculous. But copyright law puts just such a system in place.

    Should that person give up the fix you made after a period of time?

    You're mistakenly assuming in this example that I'm somehow the exclusive "owner" of the fix. I never owned the knowledge in the first place, and the recipient doesn't gain any type of ownership either. By extension, I don't have any claim of ownership over the fixed PC either. Therefore, there's nothing to give up.

    Likewise, an author doesn't really "own" the story they've written. They own a copyright that allows them to exclude others from copying said work. In practice the results tend to be the same as actual ownership of the work would be for the duration of the copyright. But ownership of the work and ownership of a copyright are not the same thing.

    but equally bad to me is the reasoning that the author/artist shouldn't be paid for "old" work just because it's old.

    They should be paid for performing the work of writing. I believe you're stuck on the concept of ownership - that somehow an author naturally "owns" a work, regardless of copyright. They don't - there isn't any natural ownership of what is commonly referred to as intellectual property. The copyright and patent laws don't grant rights to the creators, they remove the natural right to copy a work from the public.

    I'm not completely anti-copyright; I believe that a duration somewhere in the range of 20 - 50 years would be adequate.

     

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    LostSailor, Sep 11th, 2008 @ 10:01am

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    Yes, that what it's meant to be, but the balance is no longer there.

    Well, the balance is still there, we're just discussing whether it's tilted too far to one side, and that can be a matter of opinion on which different sides will not always agree. What the balance is, because it's statutory, is a legislative issue and the way legislative issues are decided is through politics. Unfortunately.

    The problem with that is that it places the burden of proof squarely into the hands of the entity who would potentially release that material....Your suggestion still requires significant financial outlay with no guarantee of return, so effectively does nothing the address the situation.

    In most cases, someone wishing to make use of an orphaned work doesn't have the kinds of cost you mention. But even in the case of film and video restoration, why shouldn't the restorers face some burden in securing the rights? Due diligence does not have to be hugely expensive (though, depending on how the rules are written I'll agree it could be). Why should a restorer have a guarantee of a return? There are plenty of businesses that take on significant risk without any guarantee of return.

    The suggested solution, as I said, balances the rights of the copyright holder with the public benefit of "rescuing" orphaned works.

    Placing them into the public domain would allow people to get their money back.

    Well, it might allow them a chance to get their money back. Much of the material you mention probably wouldn't even if the material were in the pubic domain and much would still be lost. It's not a panacea. That said, I don't object to putting orphaned works in the public domain, by law, if there is some effort to find the copyright owner. Yes, it may be an added burden but it doesn't have to be an onerous one. For example, another proposal I've read about would be to establish a foundation (or even fund an agency of the copyright office) as a clearinghouse for orphaned works. Those wishing to use a potentially orphaned work would clear the rights through the agency for a fee, with the agency bearing the burden of due diligence. The economies of scale and efficiency gained by having a group dedicated to such research would lessen the cost and there would be a reliable and accountable source for moving orphaned works to the public domain.

    Had Metropolis been covered by the current copyright system, the new footage may have been covered by copyright and thus still been effectively lost to the general public. The same with other "lost" classics such as London After Midnight or Edison's Frankenstein.

    If such discovered "classics" or lost footage has real economic or scholarly value, there is nothing to stop its preservation. If the value of such material is so minimal or it's so obscure, you are correct that it may indeed be lost. But is tearing apart copyright worth preserving obscure cultural relics? You might say yes, absolutely! because those cultural relics are of great interest to you. But if they're not of enough value to the "public" or scholars, should they be preserved?

    That may be a different discussion, however.

    Contract issues would be irrelevant if the material was in the public domain.

    I was referring to your comments about the Beatles catalog not currently benefiting the Beatles (since it's been sold several times) and that royalties often go to record labels not artists. These are contract issues. Yes, the artists might be able to get a little money if their works were in the pubic domain, but since the economic value of the material drops dramatically when it's in the public domain, the artist may end up getting even less.

     

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    LostSailor, Sep 11th, 2008 @ 10:32am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    They should be paid for performing the work of writing. I believe you're stuck on the concept of ownership - that somehow an author naturally "owns" a work, regardless of copyright. They don't - there isn't any natural ownership of what is commonly referred to as intellectual property. The copyright and patent laws don't grant rights to the creators, they remove the natural right to copy a work from the public.

    I am indeed "stuck" on the concept of ownership, and it's that concept that is central to all these discussions of copyright. And I definitely disagree with the idea that there's no "natural ownership" of intellectual property. There's a reason it's call "property."

    As a basic concept of law, anything that is created (as opposed to arising naturally, and most times even then) is owned. In terms of intellectual property, if I have an idea for a new invention or if I create a musical masterpiece or a novel of profound enlightenment, it's mine. That's not to say that someone else might independently come up with the same invention, music of equal masterpiece, or a novel very similar. That can happen, but then, those ideas or creations would be theirs. No one else has a right to them. Certainly not the public. If someone learns that I've created any of these things, they cannot force me to reveal them or share them.

    However, if I don't share them, the knowledge, music, or enlightening prose would be of no benefit to anyone other than myself. We all recognize that the public benefit from intellectual property comes from the dissemination of the property. Normally, there is an economic value to property that is usually expressed when that property is exchanged. With intellectual property, the value mainly arises when it is shared.

    To encourage me to share my creative property with the world, copyright protects my right to the economic benefit of the property, which encourages more creativity from me. Because of it's nature, such property is easily copied and "proof" of ownership easily disguised or diluted. In broad terms, copyright is essentially a "deed" to intellectual property.

    Again, because of it's nature, there is a strong public benefit to be had allowing others to use my material in other creative endeavors, to build and expand human knowledge and art. Sort of a "national park" right where in property rights are "shared" by all. Copyright term is the balance between my ownership right and the vast public benefit of openly sharing creativity.

    Where the fundamental disconnect happens is some folks think the concept is opposite: intellectual property is inherently public property and the public has a greater right to it than the creator does, and copyright is not a right, but a privilege allowed by a gracious public.

    When you say authors should be paid for the work of writing, what I hear is that they should be paid for typing. Anyone can type with a little practice. Authorship is a creative process that is difficult to do well. That is what copyright is protecting (and rewards for long periods of time).

    I'm not completely anti-copyright; I believe that a duration somewhere in the range of 20 - 50 years would be adequate.

    And I believe that life-of-the-author is adequate. Since the current law is life-plus-70, the compromise between your position and the current law would be between 72 and 75 years, or just about the life expectancy of the average American. Factor in further that most content creators aren't going to crate much before age 20 or later, "life-of-the-author" would end up being actually shorter than your 50 years. I win!

     

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    DanC, Sep 11th, 2008 @ 2:11pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    And I definitely disagree with the idea that there's no "natural ownership" of intellectual property. There's a reason it's call "property."

    The term "intellectual property" is a misnomer, and an inaccurate description, but is used because most people will have a vague idea of what you're talking about when you use it. Intellectual property doesn't have the same characteristics as actual property; in fact, those who argue in favor of that interpretation would be sorely disappointed with the results.

    Additionally, the term actually applies to ownership of patents and copyrights, not the works themselves. In other words, an owner of intellectual property owns an entitlement from the government to exclude others from using a work they created. But that isn't actually ownership of the work itself.

    Where the fundamental disconnect happens is some folks think the concept is opposite: intellectual property is inherently public property and the public has a greater right to it than the creator does, and copyright is not a right, but a privilege allowed by a gracious public.

    That's not a disconnect at all, because copyright is in fact not a natural right. It does not exist without the legal structure behind it. That's the reason guilds came into existence - to hoarde knowledge in order to control it. But again, it was an early attempt to create an artificial level of control over knowledge. One of copyright's purposes is to prevent this type of hoarding by providing an incentive for sharing. Although you appear to disagree with it, you've hit upon the truth of the matter - copyright is a privilege awarded to a creator to encourage them to share their works, in exchange for which the public agrees to temporarily cede their natural right to copy that work.

    When you say authors should be paid for the work of writing, what I hear is that they should be paid for typing. Anyone can type with a little practice. Authorship is a creative process that is difficult to do well. That is what copyright is protecting (and rewards for long periods of time).

    Copyright does not protect any process; it protects end products. If you want to refer to creative writing as authorship, that's fine. I thought it was incredibly obvious that I was not, in fact, referring to the simple act of typing. But you are inherently wrong on the goal of copyright - the protection it offers is not to the work, but to the copyright itself in order to enforce the terms of the deal it establishes with the public.

    And I believe that life-of-the-author is adequate.

    Copyright that lasts the life of the author simply allows for the author to rest on their laurels, which is not what copyright is supposed to provide. Since that situation occurs quite frequently, obviously a lifetime copyright is too long. A shorter duration removes this problem, and encourages the creation of more works, which is how the system is supposed to work.

    Factor in further that most content creators aren't going to crate much before age 20 or later, "life-of-the-author" would end up being actually shorter than your 50 years. I win!

    You would need to provide some reference for this statistic, because I have serious doubts concerning it's validity.

    And you don't win.

     

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    LostSailor, Sep 11th, 2008 @ 4:29pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Intellectual property doesn't have the same characteristics as actual property...In other words, an owner of intellectual property owns an entitlement from the government to exclude others from using a work they created. But that isn't actually ownership of the work itself.

    Of course intellectual property does not have the exact same characteristics as real property or personal property, but that doesn't mean that it's not actual property. This debate is nothing new. Even in colonial times and the early history of this country, this was debated. There were considerable differences between copyrights and patents even then. I'll not get into patents because I have little specific knowledge or experience with them, but copyrights were considered common-law rights or natural rights. Both state laws on copyright (before they were superseded by Federal legislation) as well a numerous contemporary writers all specifically referred to the work of authors and "literary endeavors" as property. I don't have citations handy, but could dig them out.

    This was far different from copyrights and property rights in a work as being merely "entitlements" from the government.

    But, the nature of literature (both fiction and non-fiction) being what it is, the framers and most state laws recognized a great public benefit to the wide publication and use of such work, hence the balancing act of copyright terms.

    I have never said that an author's work is exactly the same as other types of property, but I do argue they are a type of property.

    That's not a disconnect at all, because copyright is in fact not a natural right...copyright is a privilege awarded to a creator to encourage them to share their works, in exchange for which the public agrees to temporarily cede their natural right to copy that work.

    Yup. It's the disconnect. As noted above, I argue the exact opposite. The property right in one's literary work is a natural right with a legal preservation (copyright) that is temporary to balance the societal good to be gained by widespread access to and use of the work. This is where the social compact meets natural rights, with the property rights of the offer at some point ceding to the greater public good.

    It is true that others argue your side, particularly I gather with regard to patents. But I'd also note that as a legal term, "privilege" often had a meaning closer to "right" in the 18th and early 19th century.

    Copyright does not protect any process; it protects end products. If you want to refer to creative writing as authorship, that's fine.

    I didn't intend to imply that copyright protected the creative process; my wording was poor. But the creative process has a result, and it is partly because of the process needed to create the work that there is a property right. IIRC it's the labor theory (not the Marian labor theory of value, but, I believe, the Lockian one).

    Copyright that lasts the life of the author simply allows for the author to rest on their laurels, which is not what copyright is supposed to provide....You would need to provide some reference for this statistic, because I have serious doubts concerning it's validity.

    Well, its been nearly life of the author for over a century. You didn't specify what statistic you wanted a reference for, but I'll assume it's average life expectancy.

    Here's a table:

    http://www.infoplease.com/ipa/A0005140.html

    The 1909 revision of copy right law called for an initial term of 28 years with an extension for another 28. That's 56 years. The average life expectancy for (roughly averaging white males and white females) is around 52 years.

    Today, life expectancy is between 76 and 80. I assume that most authors don't have significant work until at least age 20 (of course there are exceptions), musicians may start earlier. Therefore, roughly, life-of-the-author equates to about a 60-year term. That's just a bit over your maximum of 50 years and less than half of the current term (figured at average life expectancy plus 70 years).

    And you don't win.

    Damn! I was hoping for a pony!

     

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    DanC, Sep 11th, 2008 @ 9:20pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The property right in one's literary work is a natural right with a legal preservation (copyright) that is temporary to balance the societal good to be gained by widespread access to and use of the work. This is where the social compact meets natural rights, with the property rights of the offer at some point ceding to the greater public good.

    This view of copyright is unfortunately the most common one, which leads some creators to bemoan their "loss" of ownership to the public domain. They then tend to resort to ill conceived rants comparing the entrance of works into the public domain as an example of socialism. In actuality, their only loss is the ownership of the copyright on the work, not the work itself. Reading through copyright law makes this very clear, with it's constant references to the "owner of copyright". This is intentional, as copyright is a creation of the legal system, and does not exist without it.

    A work in the public domain, therefore, is not owned by the public - it is simply a collection of works that are ineligible for further copyright. The works themselves are not owned by anyone, and never were. They were simply restricted by the legal system for a limited time.

    it is partly because of the process needed to create the work that there is a property right. IIRC it's the labor theory (not the Marian labor theory of value, but, I believe, the Lockian one).

    Yes, you're referring to Locke's labor theory of property, which basically states (and this is a gross over-simplification) that the end result of labor is property. But this theory is controversial and has many valid criticisms, and is still debated. But Locke posited his theory in what he referred to as a "state of perfect freedom", i.e. no government. So, that being the case, it's easy to see that the concept of copyright itself isn't addressed by Locke's theory, since it is wholly a government creation.

    That leaves us with the idea of ownership of the end product of the intellectual labor itself. In Locke's state of perfect freedom, there's no real way to assert control over an intellectual work. Because if you share your idea even once, you have thereby lost control over it. And if your only way to control something is by not telling anyone about it, it's difficult to see how ownership could be claimed at all.

    Copyright law doesn't seem to support Locke's theory of property because it explicitly creates a privilege (copyright) and assigns ownership of that privilege to the author. Basically, a layer is inserted between the work and it's creator to allow for a type of "pseudo-ownership" via a restriction on the right to copy the work. Locke's theory seems to suggest that this should be entirely unnecessary, as intellectuals work would already have property rights.

    But they do not, which is why the concept of copyright provides what amounts to a workaround of this lack of property rights. It gives an author ownership of the copyright, not of the work itself, allowing a level of control that would not be possible otherwise.

     

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    LostSailor, Sep 12th, 2008 @ 9:58am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    This view of copyright is unfortunately the most common one, which leads some creators to bemoan their "loss" of ownership to the public domain....Reading through copyright law makes this very clear, with it's constant references to the "owner of copyright". This is intentional, as copyright is a creation of the legal system, and does not exist without it.

    The view that the creator of a work has an ownership right to that work as property is the common one because it's generally common sense. Copyright is indeed a creation of the legal system to protect the right of ownership in the work. "Owner of copyright" is a legal term of art. I'd liken it to being an "owner" of title to real property. It's a legal mechanism for protecting and conveying the rights inherent in property.

    A work in the public domain, therefore, is not owned by the public...The works themselves are not owned by anyone, and never were. They were simply restricted by the legal system for a limited time.

    As you might suspect, I'd argue differently. It's not that works in public domain aren't owned by anyone, it's that they're owned by everyone and everyone has the same rights in respect to those works.

    The ideas expressed or facts recounted in a work are not in themselves owned or property, but the expression of those ideas is. To say that the specific expression of an idea (and by extension the organization of a set of facts, but not the facts themselves) cannot be owned and is the property of no one or of everyone is fundamentally wrong.

    It's for this reason that the protection of copyright law can only extend to expression that is fixed in a tangible medium (a manuscript, even if electronic; a sound recording, etc.). The ownership rights are not just to the physical manuscript, but to the expression the manuscript represents, hence the protection against unauthorized copying or appropriation of that expression.

    Yes, you're referring to Locke's labor theory of property, which basically states (and this is a gross over-simplification) that the end result of labor is property. But this theory is controversial and has many valid criticisms, and is still debated.

    Yes, that's the one. It's been years since I've delved this deeply into Locke, and I'd have to review before I can comment specifically. That it's debated still, however, indicates that the theory has relevance.

    Copyright law doesn't seem to support Locke's theory of property because it explicitly creates a privilege (copyright) and assigns ownership of that privilege to the author.

    We may just have to continue to disagree. Copyright certainly supports such a theory because the law doesn't create a right, it protects a right inherent in the work. Titles and deeds don't create a right to real property, they protect the ownership rights inherent in property.

    That copyright protection is limited in term is analogous to the public right to easements in property or the right of government to appropriate property through eminent domain. Both are limits on inherent ownership rights to serve the greater public good.

     

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    DanC, Sep 12th, 2008 @ 12:08pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The view that the creator of a work has an ownership right to that work as property is the common one because it's generally common sense. Copyright is indeed a creation of the legal system to protect the right of ownership in the work.

    I don't believe that view is common sense at all, but rather a view created by an initial reaction. Once it is explored more thoroughly, gaps in the logic required to support such a view begin to appear.

    To say that the specific expression of an idea (and by extension the organization of a set of facts, but not the facts themselves) cannot be owned and is the property of no one or of everyone is fundamentally wrong.

    Why? The nature of an intellectual work does not support the concept of ownership. Basically, your argument boils down to a moral issue - that a person who works to create something deserves to be the owner of the result of that work, regardless of it's nature. But you don't actually provide a reason why. I believe that's a rather naive point of view because it doesn't take any properties of the end product into account to determine if ownership makes sense or is even possible.

    That it's debated still, however, indicates that the theory has relevance.

    Yes, of course the theory has relevance. But it also means that determining what that relevance actually applies to is highly debated.

    Copyright certainly supports such a theory because the law doesn't create a right, it protects a right inherent in the work.

    That view isn't really supported by the way copyright works, or by the way copyright law is worded, as I've pointed out. Locke's theory supports a natural right to ownership, which copyright does not address. It isn't by accident that copyright law does not refer to the author of a work as an owner.

    That copyright protection is limited in term is analogous to the public right to easements in property or the right of government to appropriate property through eminent domain. Both are limits on inherent ownership rights to serve the greater public good.

    They're hardly analogous. Copyright is a privilege assigned to an author for a limited time by the government. Likewise, nowhere does copyright law revoke ownership of a work. The privilege expires, and is thereby ineligible for copyright. And, as I've stated previously, an owner of a copyright is not acknowledged as the owner of a work, but as an author.

    The limit placed on copyright is not a socialist means of removing property from its owners. The limit is there because the situation copyright creates is an unnatural monopoly for the benefit of the copyright holder.

     

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    LostSailor, Sep 12th, 2008 @ 3:03pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Why? The nature of an intellectual work does not support the concept of ownership. Basically, your argument boils down to a moral issue - that a person who works to create something deserves to be the owner of the result of that work, regardless of it's nature. But you don't actually provide a reason why. I believe that's a rather naive point of view because it doesn't take any properties of the end product into account to determine if ownership makes sense or is even possible.

    I'm not denying that works resulting from the creative process are not of a different nature of property and therefore the rights to such property are not secured differently than real or personal property, but that does not make them less property for being "intangible." It certainly does not make them somehow automatically community property (or "no one's property").

    It's not the "work to create" that I own; the process of creation is a process the result of which is a work. Why would it belong to anyone else?

    It's common sense that if I write a novel, it is my novel, not yours or his. And I include in the concept not just the physical manuscript, which is personal property, but the plot, characters, and unique expression contained in that manuscript. If I write an essay on the natural rights of a person to their literary property, the same holds true.

    You've asserted that this can't be property, no one owns it (or everyone does), but have provided no rationale beyond that it's, outside the manuscript, it's too ephemeral. How does my expression of a story or idea belong to anyone but me?

    The issue of securing that right to encourage me to publish it (not encourage me to create it) and share it with others for the greater benefit of society is why copyright was created.

    As you're likely aware, the earliest Congress in the US encouraged states to make laws to secure "literary property". Many of the states copied language of the statutes and half of them (Delaware was apparently napping) including language that referred to work of intellect as property. The most common formulation (this take from the Massachusetts statute) was:

    As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the labour of his mind.


    So, at least some of the founders regarded such work as property.

    That view isn't really supported by the way copyright works, or by the way copyright law is worded, as I've pointed out. Locke's theory supports a natural right to ownership, which copyright does not address. It isn't by accident that copyright law does not refer to the author of a work as an owner.

    Copyright is the legal mechanism to secure the right of ownership in the work, specifically because of it's peculiar nature. Though my creative expression is fixed in a material format, it is easily appropriated and copied; that's the peculiar nature (and why you argue that I can't own it). The securing of my rights arising from the ownership of my work-product encourages me not to create it in the first place, but to publish it and share it. That's how copyright works to protect my ownership interest.

    They're hardly analogous. Copyright is a privilege assigned to an author for a limited time by the government.

    Actually they are analogous, but the analogy doesn't support your argument.

    The limit placed on copyright is not a socialist means of removing property from its owners. The limit is there because the situation copyright creates is an unnatural monopoly for the benefit of the copyright holder.

    I never said it was socialist. There's a difference between recognizing a social compact, a classic enlightenment concept, and a forceful taking by a socialist government.

    And I'd absolutely disagree that there is anything unnatural about copyright's protection of my enjoying the benefits from something I create. It can only be an "unnatural monopoly" if society has an expected right to the benefit to the product of my creativity; it doesn't.

     

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    DanC, Sep 13th, 2008 @ 6:33am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You've asserted that this can't be property, no one owns it (or everyone does), but have provided no rationale beyond that it's, outside the manuscript, it's too ephemeral.

    That is the rationale: based on the properties of the work, i.e. it's non-scarcity after creation and it's intangibility, ownership isn't really possible.

    It's common sense that if I write a novel, it is my novel, not yours or his.

    You've said it is, I've said it isn't. But I've provided reasons why I believe it isn't common sense. You appear to be using common sense as it's own defense.

    Though my creative expression is fixed in a material format, it is easily appropriated and copied; that's the peculiar nature (and why you argue that I can't own it).

    The concept of property exists to provide control over something. You've just stated that the nature of an intellectual work allows it to be easily copied and appropriated, i.e. a significant lack of control. And that's why I'm arguing that ownership isn't really possible.

    Actually they are analogous, but the analogy doesn't support your argument.

    Eminent domain is a distinct act by a government that removes the ownership of land from an individual for the public good. Copyright doesn't do this - in fact, it never acknowledges the author as an owner of the work. Likewise, it never states that it removes ownership of a work; it simply expires. Additionally, you don't see eminent domain being used to protect someone's land. It's completely different in purpose and execution from copyright, and therefore not analogous.

    I believe you were correct in your previous post - that we will have to continue to disagree, because I simply don't see a logical rationale in your argument. "Because it's common sense" does not strike me as any more convincing than the "because" defense.

     

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    LostSailor, Sep 15th, 2008 @ 10:05am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    That is the rationale: based on the properties of the work, i.e. it's non-scarcity after creation and it's intangibility, ownership isn't really possible.

    Non-scarcity doesn't enter into the consideration whether the product of creative work cannot be property and I'd argue that the product is not as intangible as it might seem. You've said that copyright is a "right" granted by government that doesn't otherwise exist in the property itself whereas I've argued that copyright is simply a legal framework that secures the right the creator has to ownership of his created property. It's the nature of the property that give rise to the specific nature of how that property right is secured: for a limited time.

    I'll try one more example. I buy a piece of land, I pay for it and the previous owner who is selling it to me is satisfied. I go away for a time and return to find that someone else has occupied the land and built a house. That man claims to own the land because he occupies it.

    Without a legal framework to secure my property rights to the land, I have no recourse other than to try to reoccupy my land by force and evict the squatter. The legal framework in this case involves obtaining a bill of sale, a deed, and recording title to my property with the government, which will then enforce my right to my property.

    Copyright, in its base essentials, is no different. True, the nature of my creative work makes it easier to appropriate and creates unique obstacles to enforcing my rights. Copyright, historically, is the legal framework that secures my rights to my property.

    You've said it is, I've said it isn't. But I've provided reasons why I believe it isn't common sense. You appear to be using common sense as it's own defense.

    I've also mentioned where the law in the early days of this country have supported the contention that creative property is indeed property. Common sense is usually the basis for common law.

    The concept of property exists to provide control over something. You've just stated that the nature of an intellectual work allows it to be easily copied and appropriated, i.e. a significant lack of control. And that's why I'm arguing that ownership isn't really possible.

    I never said there weren't obstacles to my retaining control over my property, but that doesn't make it not my property. Your argument is that because property is easily stolen, it loses it's nature as property.

    Eminent domain is a distinct act by a government that removes the ownership of land from an individual for the public good. Copyright doesn't do this - in fact, it never acknowledges the author as an owner of the work. Likewise, it never states that it removes ownership of a work; it simply expires. Additionally, you don't see eminent domain being used to protect someone's land. It's completely different in purpose and execution from copyright, and therefore not analogous.

    You've turned the argument around: I've never said eminent domain is like copyright in that it protects my property rights, but that it is a mechanism of law that allows for public appropriation of private property. The only difference between government "taking" my land for public use and the expiration of copyright "taking" my creative property for public use is that in the former action, I would be compensated. If my land is taken by eminent domain (at least as eminent domain is supposed to work; I don't want to get into the bastardization of the "Kelo" decision), I still retain "ownership" in the sense that I am part of the public.

    I believe you were correct in your previous post - that we will have to continue to disagree, because I simply don't see a logical rationale in your argument. "Because it's common sense" does not strike me as any more convincing than the "because" defense.

    The discussion has been interesting; at the least you've made a defense of an idea that many here seem to have, wrong though it may be!

    I'll leave with one last thought. Over the weekend I dug out my copy of Lawrence Lessig's Free Culture. Lessig is no fan of what he calls the "copyright warrior" or of big media and is quite in favor drastic relaxation of copyright restrictions. But he quite clearly states and accepts the idea that "creative property" is in every sense actual property. His chapter in that book on "property" is a good overview of the issue.

    While I disagree with some of Lessig's proposed solutions, I do agree that the battle isn't over whether property rights in creative content should be abolished entirely, but over what is the proper balance of the property rights of the creator and the cultural and creative rights of the public. This has always been the balance at the heart of copyright. If you don't see that there are property rights that copyright was implemented to secure, then you destroy the very good that copyright was meant to preserve: the promotion of "progress" of science and the useful arts.

     

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    DanC, Sep 15th, 2008 @ 2:23pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Non-scarcity doesn't enter into the consideration whether the product of creative work cannot be property and I'd argue that the product is not as intangible as it might seem.

    This seems to be a simple reiteration of the "because" defense. You aren't providing a reason for why the issue of scarcity shouldn't be considered - you're just saying it shouldn't be. If we're still discussing Locke, it should be mentioned that his examples dealt with real physical property, not what is commonly referred to as intellectual property.

    I'm not sure how you can argue that an intellectual work isn't an intangible. While an intellectual work can be contained in a physical object, it isn't the work itself.

    You've said that copyright is a "right" granted by government that doesn't otherwise exist in the property itself whereas I've argued that copyright is simply a legal framework that secures the right the creator has to ownership of his created property. It's the nature of the property that give rise to the specific nature of how that property right is secured: for a limited time.

    That's not exactly correct. I've stated that copyright is a privilege granted by the government that restricts the right to copy a work.

    I'll try one more example. I buy a piece of land, I pay for it and the previous owner who is selling it to me is satisfied. I go away for a time and return to find that someone else has occupied the land and built a house. That man claims to own the land because he occupies it.

    Land is a scarce (or limited if you prefer) tangible resource, therefore it is both possible and sensible for it to be considered property and therefore capable of being owned. That is not the case with intellectual works.

    Common sense is usually the basis for common law.

    Okay...then please explain why it's common sense to insist that something is a certain way despite the inherent nature of that thing being against it.

    I never said there weren't obstacles to my retaining control over my property, but that doesn't make it not my property. Your argument is that because property is easily stolen, it loses it's nature as property.

    No, that's incorrect. Theft involves two factors: an illicit gain, and a deprivation. Infringement involves illicit copying. Two different things.

    Furthermore, that's a completely inaccurate portrayal of my point. The concepts of property and ownership revolve around control. Intellectual work can't naturally be controlled; that's why copyright exists in the first place. I'm not saying that an intellectual work "loses it's nature as property" because it can't be controlled naturally, I'm saying it never had the capability of being property in the first place. The nature of intellectual work does not support the concept of property.

    This has always been the balance at the heart of copyright. If you don't see that there are property rights that copyright was implemented to secure, then you destroy the very good that copyright was meant to preserve: the promotion of "progress" of science and the useful arts.

    That's definitely not true. My understanding of the copyright system and what it actually does meshes quite nicely with its overall intent. Copyright is the restriction of the natural right to copy a work in order to encourage the further progress of science and the useful arts. It attempts to accomplish this goal by providing an incentive in the form of exclusivity. That incentive accomplishes a work-around against the nature of an intellectual work, which permits a creator to be more easily rewarded. There aren't any conflicts in my understanding of copyright that would undermine its goal.

     

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    LostSailor, Sep 16th, 2008 @ 8:54am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You aren't providing a reason for why the issue of scarcity shouldn't be considered - you're just saying it shouldn't be….I'm not sure how you can argue that an intellectual work isn't an intangible. While an intellectual work can be contained in a physical object, it isn't the work itself.

    I’ve already provided several reasons as well as historical and contemporary sources that tend to agree with me. Whether something is scarce or common has no bearing on whether it can be owned as property: There is only one Mona Lisa and it can be owned as property. There are uncounted pebbles on the beaches of the world, but I can take one home and own it. You might question why I’d want to own a pebble, and it may be of little worth, but that has absolutely no bearing on whether it is property.

    You also seem to be confusing the creative process for the end product. You say that the product of intellectual work can be fixed in a tangible medium, but "it isn’t the work itself." Absolutely wrong; fundamentally wrong when it come to talking about copyright. As I’ve mentioned a couple of times now, the right of ownership to creative property doesn’t even come into existence with regard to a specific property until it is expressed in a fixed medium. Further, as I’ve noted several times, ideas in and of themselves are not protected by copyright because they are not property. When copyright law refers to "the work" it is referring to the creative expression in a fixed medium; it is not referring to the process by which it is created.

    I've stated that copyright is a privilege granted by the government that restricts the right to copy a work.

    Yes, you’ve stated this. But just stating it doesn’t make it so. Primarily because it’s not so.

    Land is a scarce (or limited if you prefer) tangible resource, therefore it is both possible and sensible for it to be considered property and therefore capable of being owned. That is not the case with intellectual works.

    I’ll ignore the scarcity, since it’s irrelevant. More important, you miss the point completely. The concept of ownership of real property (in the legal sense of "real estate"; as opposed to personal property or intellectual property) has been a fundamental part of human society since it began. The point is that the right to own property exists as a fundamental right, at least as far as we understand rights to exist at all. But the right is meaningless without the legal framework to “secure” that right. Without that legal framework to secure my property rights, I’d constantly have to occupy my land and protect it.

    You claim copyright is just a "privilege" granted by the government; I’ve said it was always considered a legal means of protecting an ownership right, and have cited early statutes that said exactly that. Can you show me where in statute that creative property has been specifically deemed to be not property?

    The concepts of property and ownership revolve around control. Intellectual work can't naturally be controlled; that's why copyright exists in the first place.

    Intellectual property can indeed be controlled. The simplest way is to keep it to oneself, to not share it or communicate it. To encourage the communication of creative property, the law protects the owner’s property right by protecting that communication.

    Copyright is the restriction of the natural right to copy a work in order to encourage the further progress of science and the useful arts.

    Ownership of property is one of the oldest natural rights. Can you demonstrate any "natural right to copy a work"? The term "natural right" has a particular meaning in law and I no of no such right to copy creative property. That technology has made it easier to do so over the centuries does not make it a natural right.

     

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    DanC, Sep 16th, 2008 @ 10:53am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I’ve already provided several reasons as well as historical and contemporary sources that tend to agree with me. Whether something is scarce or common has no bearing on whether it can be owned as property

    No, you still haven't provided a logical reason why. I'm not looking for a "this or that person said", I'm looking for a real answer.

    There is only one Mona Lisa and it can be owned as property.

    Wrong. There's only one original Mona Lisa, and the physical medium that contains it can be owned. The physical medium that contains the intellectual work can certainly be owned; I've never said otherwise.

    You say that the product of intellectual work can be fixed in a tangible medium, but "it isn’t the work itself." Absolutely wrong; fundamentally wrong when it come to talking about copyright.

    I was merely trying to point out that the same intellectual work can be represented in various mediums, thus the actual intellectual work is not tethered to any one particular physical object. So the work and the tangible medium that contains it are two separate things. Perhaps my original wording was off, but my point is accurate. A story is an intellectual work whether it exists in the mind, on paper, or on a computer - you don't receive a separate copyright for each.

    Yes, you’ve stated this. But just stating it doesn’t make it so. Primarily because it’s not so.

    I was merely correcting your misstatement, nothing more.

    The point is that the right to own property exists as a fundamental right, at least as far as we understand rights to exist at all. But the right is meaningless without the legal framework to “secure” that right.

    I disagree that the right is meaningless without a legal framework, but as far as the right to property goes, I agree. I simply disagree that intellectual works can actually be property. I'm actually curious as to why you're trying to make this point, since you earlier cited Locke to support your theory, since he certainly didn't consider the natural right to property as "worthless".

    Can you show me where in statute that creative property has been specifically deemed to be not property?

    I don't really see the point in providing negative evidence. I was under the impression we were primarily discussing the nature of intellectual work properties. We've already agreed that a natural right to property exists without a legal framework; the argument is whether intellectual works can be considered property.

    A law can be passed that says intellectual works are considered property, and then five years later another could be passed saying it can't. Would the actual nature of "intellectual property" change because of the change in law? Of course not. I'm only referencing current copyright law to show that it isn't in conflict with my argument.

    Can you demonstrate any "natural right to copy a work"?

    Certainly. Works in the public domain are not eligible for copyright, so anyone can exercise their natural right to copy a work in it. Your reasoning would seem to indicate that works in the public domain are still owned, but not legally protected. Copyright law neither grants nor removes ownership of anything other than a copyright.

     

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    LostSailor, Sep 16th, 2008 @ 1:35pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    No, you still haven't provided a logical reason why.

    Well, I think I've provided several (as well as citing other authorities in support); whether you accept my arguments and reasons as logical is a different story.

    But though I've appreciated the conversation, we seem to be talking in circles, so I'm going to leave off here. Cheers.

     

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  59.  
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    DanC, Sep 16th, 2008 @ 3:57pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Well, I think I've provided several (as well as citing other authorities in support); whether you accept my arguments and reasons as logical is a different story.

    I see several instances of you repeating that scarcity is not a factor in determining whether something can be considered property, and I see instances where you've stated that anything that can be created can be property. What I don't see is an actual reason why.

    But though I've appreciated the conversation, we seem to be talking in circles, so I'm going to leave off here. Cheers.

    I agree...the conversation does not appear to be progressing anywhere. But decent discussion nonetheless.

     

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    gsxr 750 Fairings, Dec 10th, 2008 @ 2:10pm

    Actually I agree that he has to pay for the rights of that movie. I have the DVD of Rear Window and everytime I watch it, man I think to myself "Alfred was great!".

     

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  61.  
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    Matt, Aug 14th, 2010 @ 1:38am

    There's definitely nothing 'truly' original out there. I am a screenwriter and had an idea of a girl who started out 13 about her first love. It was inspired by my living in Kentucky for a year and I though it would create a great backdrop to a fictional story with tid bits of things I threw in from growing up. Then I saw Little Manhattan, and thought "great people are going to think I copied that" even though it might be about first love, it's not really the same as Little Manhattan" But I decided that first love had been done too many time before and I wanted a teen's perspective - so I made the main character a little older (14), wrote the script and during a proofread I noticed that I may have changed her age, but the way the characters spoke became to formal. Kentucky is still very "Yes sir, Yes ma'am" about a lot of things, especially the younger kids. But the older kids, the H.S. kids are just like other high school kids more or less. So I made her 14 going on fifteen and rewrote the script again, but something wasn't right. So looking it over I realized, while I want to stay away from cheesy and corny lines, y racking my brain so hard I was putting more corny one-liners. So in the fourth draft I came up with the main character turning 16, and this was it's strongest setting so far. But there started to be too many plot holes. So back to the starting gate I went.

    I had just saw "Flipped" and thought it was cute, but felt it was a little "preachy" but it was funny, while all my previous versions of my film always took place in present day I was arguing with myself if I should set it back in the 50s/60s. Will "Flipped" killed that idea. And thankfully too. Because I always wanted something where teens nowadays could relate. Suddenly during a scene in the school in Flipped, I got an idea for my story... My main character spends her first day of Junior High reliving the summer and the relationship she shared with her next door neighbor.

    Now the similarities of the two are minimal at best: Next door neighbors, at best. Flipped is about two Jr. High students who go back and forth trying to figure out if they like each other. And it runs the corse over the years. Whereas mine is set over the course of one summer. Both my lead characters have lived next door to each other for years, but while they may not have feelings for each other right away, neither one of them wants the other one to leave them alone (as they do in Flipped)

    So as you can see there not that similar but for those that don't read the synopsis and those that just assume anything with remotely same ideas are copies will probably assume I copied the movie. Believe me, mine will be sweet like "Flipped" but will be geared more towards how teens are today, I guess like the book "Flipped.

    But don't take my word for it. I've written my screenplay also a short story/novel. Check it out in the link.

     

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