CBS Sues Public Domain For Existing

from the or-something-like-that dept

Okay fine, CBS hasn’t sued “the public domain” — but at this point I suspect that’s only because they haven’t figured out how to do so. In the mean time, they’re suing a YouTube channel for copyright infringement after it posted sixteen public domain episodes of the Andy Griffith show. How, you ask? Isn’t the public domain the, uh, public domain? Apparently not if you get creative with your lawsuit:

The episodes at issue in the suit fell into the public domain in the ’90s because the copyright-renewal application was rejected for being filed too late and, according to the suit, that’s one of the reasons Heldman thinks his posting them was legitimate.

… CBS attorney Jonathan Zavin argues that, because CBS holds valid and existing copyrights for the first 79 episodes of the series, the “copyrighted characters and numerous other original creative elements” that appeared in those episodes would still be protected in the middle episodes.

“Accordingly, the newly-added elements, and only the newly-added elements, of these Middle Episodes which did not previously appear in the first 79 episodes of The Andy Griffith Show (which remain protected by statutory copyright) have fallen into the public domain in the United States,” he writes.

This is of course not the first time we’ve seen such an attempt to nibble (or chomp) away at the edges of the public domain. Other examples include the high-profile fight over Sherlock Holmes, and the recent loss over Wizard Of Oz promotional materials. But each is subtly different, and together they form a trifecta that snuffs out giant swathes of the public domain.

In the case of Sherlock Holmes, we’ve got the rule that early works falling into the public domain can be freely used, but if you’re building on them or adapting them, you can’t incorporate character traits or story points from later works that are still under copyright. While this still raises a huge host of “perpetual copyright” concerns, at its core it seems… somewhat reasonable. The Wizard Of Oz situation is similar, stemming from the idea that just because some materials from the film have fallen into the public domain doesn’t mean everything else is fair game. But, it pushed the borders: the court didn’t simply say that building on the public domain material with other still-copyrighted material from the film becomes infringing, but that building on it with anything or changing it in any way makes it infringing.

Those two rulings already represent pretty big victories for public domain haters, but you’ll notice they are missing something. In both cases the courts, despite constraining the public domain in extreme ways, had to concede that just directly publishing the unaltered public domain material itself — the early Holmes stories, or the unregistered publicity materials from Oz — is not infringing. How could it be? They are public domain.

So along comes this new lawsuit, attempting to put another nail in the coffin. The episodes posted on YouTube weren’t somehow expanded to draw upon material from other episodes, or for that matter from anywhere else. They were public domain material being posted in full online. And now CBS wants the court to say that’s infringing because other episodes of the show are still under copyright, and that even though these 16 are in the public domain, they still count as derivative works of previous episodes. So, magically, posting public domain material to YouTube — something that should be completely and inarguably legal — becomes unauthorized distribution of a derivative work.

It gets crazier, too. You might think CBS would be satisfied pushing this theory on the basis that the episodes infringe on the very first episode, or perhaps a select handful that establish recurring characters and themes. Nope! The lawsuit claims that the 16 public domain episodes are derivative works of each of the 79 still-copyrighted episodes, individually. They are asking for nearly $12-million dollars — the maximum statutory damages per work infringed, multiplied by all 79 episodes.

Let that sink in.

And so once again we see the utter collapse of the idea/expression dichotomy. Copyright is supposed to apply to the fixed expression of an idea — such as each individual episode of a show, and the scripts and other materials underlying it. But if we slide the dividing line over a bit and say that “the character of Andy Griffith” or “the town of Mayberry” count as fixed expressions, then we have an absurd situation where basically nothing related to the show can be public domain until everything is (a day or two before forever, most likely). If we slide it further and say that one expression of those ideas can infringe on every single other expression of them individually, then I don’t even have the words for how broken the system has become. It’s a perversion of the entire idea of the public domain, and an utter betrayal of the already-lopsided contract that is copyright.

With any luck, the judge will reject this nonsense. So far, despite being pretty cooperative with the demands of rightsholders, courts have stopped short of saying “you cannot publish that public domain material at all”, because even the most copyright-friendly judge seems to recognize that’s a bridge too far. But even if CBS doesn’t get all their wishes, I won’t be surprised if the eventual ruling continues to chip away at the public domain, delineating new restrictions that have no reason to exist or planting landmines of legal language that will be unwittingly detonated by some future public domain miner.

But hey that’s all secondary — the important thing is making sure nobody gets to watch sixteen episodes of a half-century-old TV show for free, right?

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Comments on “CBS Sues Public Domain For Existing”

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62 Comments
Anonymous Coward says:

Re: Re:

We need to get rid of the whole notion of "copyright" for characters. It’s so hand-wavy it’s not even funny.

Agreed. Leigh calling the Holmes ruling "somewhat reasonable" is being too generous; the best I can say is that it’s not totally crazy. But character traits and story points are exactly abstract ideas, and those are not (supposed to be) copyrightable.

Anonymous Coward says:

if you’re building on them or adapting them, you can’t incorporate character traits or story points from later works that are still under copyright.

I’d take the opposite view (but of course I would, because I’d mostly do so to balance the copyright scales somewhat).

Call copyright a house of cards. All of your derivative works are based on someday-public-domain works. Once Batman becomes public domain, your super-limited, specific expression of the Batmobile becomes public domain because it was a Batman-derived work in the first place.

I rather like this idea because it turns some of the copyright maximalists’ ideas back against them. You wrote that drum riff? Nope, here’s a sample of the Amen Break. Boom, there goes your songwriting credit.

See how they like standing against the firing line they built to aim at the rest of us…

Roger Strong (profile) says:

Re: Re:

Once Batman becomes public domain, your super-limited, specific expression of the Batmobile becomes public domain because it was a Batman-derived work in the first place.

Given that a defining trait of all Batmobiles is the flames shooting out the back, I’m surprised that DC Comics didn’t sue Ferrari when it unintentionally became a defining trait of the 458 Italia.

timmaguire42 (profile) says:

Re: Re:

That’s roughly my view as well. If a character is in the public domain, then all incidental factors relating to that character should be unprotectable. The problem is “creative” is defined too broadly.

For instance, The Wizard of Oz. In the book the witch did not have a pointy hat, but in the movie she does. So the pointy hat is protected. In the book the slippers were silver, in the movie ruby red. It’s insane that those details are protected. Yes, the ruby slippers have cultural resonance, but that too is an (entirely separate) reason not to protect them.

Protection should be limited to substantial creation, not minor details. Yes, I know the “substantial” is a minefield, but the courts decide questions like that all the time, and putting it in legislation would move the center of gravity to a more appropriate place.

Roger Strong (profile) says:

Re: Re: Re:

That would indeed be a substantial minefield. Consider Joseph Conrad’s 1899 novel Heart of Darkness. The "pointy hat" of the movie adaptation Apocalypse Now is that it moved the story to the Vietnam war.

If someone filmed a new "Heart of Darkness, in Vietnam!" film, it’s Apocalypse Now they’re be accused of ripping off, not Heart of Darkness. The pointy hat would be everything.

cpt kangarooski says:

Re: Re: Re:

I believe that in the original illustrations the Witch has a pointy hat (also she has the golden cap that gives her dominion over the winged monkeys). I don’t recall if the text discusses whether she has a pointy hat as everyday headgear but I don’t think that was an unusual thing for witches as depicted in the fiction of the era.

Richard (profile) says:

Re: Re:

Not quite – but I think it is clear that, whilst the public domain episodes are derivative works of the earlier episodes, their legitimacy hinges on the question of whether they were legal derivative works at the time they were created.

Since they were all created by CBS at the time then CBS clearly gave permission for their creation and that is the end of the matter. Otherwise , under their own legal theories CBS should sue ITSELF for 94 squared times the maximum amount since all the episodes infringe on each other (there is a slight problem with the timeline here of course!)

Surely once a derivative work has been legally created it is just a work – and its copyright is its own.

David says:

Re: Re:

So I create a derivative work, release it into the Public Domain in spite of its protected elements, and magically the original becomes Public Domain as well?

Sorry, doesn’t work like that.

And so I very much suspect that CBS’ registering gaffe will indeed have comparatively little consequence: the “public domain” episodes will effectively be locked as long as their still-protected predecessors are. Which, thanks to Mickey Mouse, is all eternity.

That it’s the original copyright holder rather than a third party who blundered with the registration of the derived works does not really change a whole lot.

So I think CBS is going to win this on the “merits” of the whole abominable mess that is copyright. Basically its a case of reverse Holmes, with reverse consequences.

As long as there is a whiff of one still-protected element in it, it’s hands-off for anybody without a proper license.

Now make no mistake: this ruling might draw a lot of followup cases once the hyenas smell the carrion. And make for a good argument why copyright needs a reform.

But in the current legal landscape, I don’t see a reasonable argument for CBS not prevailing on the “merits”.

Leigh Beadon (profile) says:

Re: Re: Re:

I could see it going a lot of different ways, depending on the judge. I doubt it will be a 100% win for CBS — at the very least, I’d be pretty shocked if the court agreed that there are 79 counts of infringement on all 79 individual prior episodes. That will probably get kicked back and forth a bit until CBS adjusts their claim to list a handful of specific episodes that establish identifiable elements which they say have been infringed.

Leigh Beadon (profile) says:

Re: Re: Re:2 Re:

“No harm, no suit”

Afraid not. That’s not how it works at all. There’s no requirement to show actual harm in a copyright lawsuit. That only enters into it if they ask for actual damages, in which case they need to show the harm. But instead, in basically all lawsuits, they ask for statutory damages which are up to $150k per work infringed and do not require any demonstration of harm.

In this particular case (again common) CBS has asked for statutory damages but also said they are retaining the right to choose actual damages instead if they demonstrate harm later in court. But they won’t do that, since there’s no way they could beat the free statutory damages.

Anonymous Anonymous Coward (profile) says:

CBS's Flight into Temporal Shifts

I like the way CBS is arguing that the middle episodes are derivative of episodes that came after. A time travel fantasy that changes not only what came after, but what came before. Maybe they should copyright that, after they write a story or two and properly register them in a timely manner.

Then again, didn’t I read that legal arguments are NOT copyrightable?

Leigh Beadon (profile) says:

Re: CBS's Flight into Temporal Shifts

Actually the 79 episodes they claim infringement on are the ones that came before the public domain ones, and there are some others that came afterwards which are not included in that part of the suit or the damages calculation (but are mentioned as part of establishing their ongoing copyright on the characters). Sorry if that wasn’t clear in the post. Though frankly I’m sure they would have sued over the later episodes too if they thought they could get away with it.

John85851 (profile) says:

Or they could, you know, let people see the 16 episodes for free and make money downstream, rather than fighting this stupid fight.

Here’s what should happen: someone sees an episode on YouTube for free, thinks is funny, and then goes searching for more… and look, the show is on at least 10 different channels, including: Nick at Nite, TVLand, AntennaTV, Cozi, Retro, MeTV, and probably more. I’d wager that in some parts of the country, you could get almost 24 hours of “The Andy Griffith” show if you kept switching channels.

ECA (profile) says:

DEAR TD and all those listening

I have the ORIGINAL cave painting of a Corn Stalk..
I wish to SUE every painting that has a Corn Stalk..
from Movies to Stills, to Albums..
I would like to place an Artificial Value on my ART, and get Credit from banks around the world to pay you and yours.
Once I win 1 time, I will have enough money to pay everyone back and continue suing the rest of the industry and Persons.

Please contact at 555-1212..

That One Guy (profile) says:

One if by legislation, two if by the courts...

Seems like another attempt at eternal copyright to me. If something is public domain no-one should be able to yank it back out, whether through retroactive copyright extensions or claiming that something that hasn’t made it into the mythical land of ‘Public Domain’ means that what was supposed to be in the public domain isn’t.

If you can keep something out of the public domain simply by making something ‘new’ involving the characters/world every so often then nothing will ever enter the public domain unless a company screws up and forgets to do so in time(at which point they go buy a few politicians and retroactively extend the duration again), and while I’m sure CBS and other large companies would absolutely love that idea it’s not one the courts or lawmakers should be accepting.

David says:

Re: One if by legislation, two if by the courts...

Nobody yanks it back out (not that this doesn’t happen with some regularity by retroactive copyright extensions): it’s in the Public Domain for good as such.

It’s like Shakespeare’s “The Merchant of Venice” (I think it’s a trope stolen from Persia or Arabian works out of copyright): you may cut your pound of Public Domain flesh, but if you so much as shed a single drop of protected elements, you forfeit all your goods and your life.

So think twice before wielding your knife. Here, I’ll bare some episodes for you.

Anonymous Coward says:

Copyright needs a fixed term

Copyright needs a fixed term. Make it 28-years for corporations, because there is no single creator who can die.

For individuals, copyright should last no longer than 70 years from the initial copyright, and then fall into the public domain. The initial copyright shall be 14 years, with non-automatically renewing extensions every 14 years. (14 years is what the initial term was when the Copyright Act was penned.)

This we can’t possibly tell you how long copyright will last because we don’t know when the author will die is stupid and broken. The heirs (or estate) didn’t write the work. They should only be able to profit from it if it is within 70 years of the initial copyright.

trollificus (profile) says:

Is it inappropriate, or an exaggerated...

…emotional response, to feel actual gut-wrenching *hatred* for those responsible for taking a relatively intellectually sound bit of governance like “granting creators exclusive use of their creations for a limited time” and turning it into…this? And by “this”, I mean the near-indescribable cesspit of copyright (and not excluding patent and even trademark) law.

It seems harsh to hate them, even considering that the people responsible for the travesty and who benefit from it are almost exclusively NON-creators.

Meh. Considering the lawyerly rationalizations and weak moral excuses for such greed, I’m okay with hatred. Wish it carried more consequence for them…maybe someday.

Groaker (profile) says:

Television shows are of such low quality I have no understanding of why anyone watches them. With few exceptions they are a waste of time, and I suspect destructive to neurological structures.

The solution to CBS and other purveyors of similar trash, the solution is quite simple. Allow them their copyrighted garbage, but don’t watch it. See how quickly they will lose interest in copyright.

PaulT (profile) says:

Re: Re:

“Television shows are of such low quality I have no understanding of why anyone watches them.”

Utterly irrelevant. The dumbest argument in any of these discussions is “I don’t personally care for the art in question so X doesn’t matter”. Your personal taste is neither shared by everybody nor relevant to the law or the reality of industry.

“Allow them their copyrighted garbage, but don’t watch it. See how quickly they will lose interest in copyright.”

…and how, exactly, do you plan to get everyone else to do the same as you? How do you plan to allow copyright changes to only affect TV and not a genre or medium you do personally care about?

Groaker (profile) says:

Re: Re: Re:

You may see this as a dumb argument. But boycotts have been, and are a legitimate mechanism for changing the behavior of the powerful. Indeed, they are about the only thing that are understood by many who control the generation of what you so generously call “art.”

But if you want to bring about change, then it has to be a demonstration of power against power, not whining against power. So far whimpering about copyright and DRM has done nothing utile but increase the span of copyright holders by many-fold. And increase the litigious locus of copyright to include billion dollar suits for the marvelously creative innovation of rounded corners.

It is totally ridiculous to believe that change will be effected through sniveling on a blog. If you want to make a difference, then you will have to demonstrate to the powers that be, that they are going to suffer if they do not change their ways.

If this is important to you, thenyou are going to have to fight for it.

PaulT (profile) says:

Re: Re: Re: Re:

“But boycotts have been, and are a legitimate mechanism for changing the behavior of the powerful”

Indeed. But, doing it alone is not effective. “I don’t like any TV” clearly isn’t a reason to get people who do currently watch it to join you, and a boycott among people who currently agree with you is obviously useless because you’re already doing that. Unless you get a significant number of people to join you, it’s not going to work. Therefore, any copyright changes are not going to be stopped just because you hold a relative minority opinion of “I don’t like any TV”.

The dumb argument is not “I dislike something so will fight against it”. The dumb argument is “I don’t care for something, therefore nothing that happens involving that something matters”. Especially if you give people no other reason to join you than your personal tastes. The problem isn’t that you said you would like to boycott TV, the problem is that you stated you’d be happy to let them screw everyone over on the basis that they’d lose interest – which isn’t going to happen if a majority continue to watch. The public doesn’t care about copyright, they only care about the effects on them (which is usually seen years or decades after we have predicted them and after it’s too late to stop).

“So far whimpering about copyright and DRM has done nothing utile but increase the span of copyright holders by many-fold”

I’m not sure how complaining about copyright has increased the span of copyright holders. Could you elaborate what you’re on about there? If anything, the increase happened after the change to automatic copyright and retroactive increases to its duration, and that happened because not enough people were complaining.

As for DRM, its support has been eroded and it is gradually diminishing. Only complaining about it does nothing, of course, but purchasing non-DRMed product where possible is effective to a degree, as we have seen numerous times. But, that requires more effort and explanation than “I don’t like DRM”.

“If this is important to you, thenyou are going to have to fight for it.”

Yes, which is why I’m going to continue to battle against the current copyright system,. whether or not I personally care for the medium, genre or title under discussion is a particular story.

Again, being against the system is OK and not caring for TV is OK. The dumb thing is going “let them have what they want because I don’t care for TV”. Not only are you in a minority, but the changes they force through WILL affect something you do care about. So, give people a reason to join the fight.

Leigh Beadon (profile) says:

Re: Lover this..

Well, in theory it does work both ways. For example Disney doesn’t own “Snow White” (an old, old story) but it does own “the Seven Dwarves” (a totally original addition in the animated movie).

Of course, in practice, anyone making anything based on Snow White is treading a minefield, whether they are genuinely copying Disney’s original elements or not. Because it’s Disney.

kadmos1 (profile) says:

Copyright trolling has gotten out of control. Here’s a rant on how estates and corporations here have actually been abusing said system:

Even when a work becomes public domain in the USA, there are still ways to perpetual copyright : Trademarking the name, for example. The 2012 case of Golan v. Holder copyright restored many public foreign works here that were still copyrighted in their native countries. Also, even domestic works can get re-copyrighted, even if there was failure to renew its copyright. A famous case was “It’s A Wonderful Life” became public domain in 1975 because a clerical error failed to renew the copyright. But it got a re-copyright of sorts here.

Look up the 1990 Stewart V. Abend case. Republic Pictures (the successor to a film company that had the movie copyrights until 1975) had the films rights to the book that the movie is based off of and the music rights, so they did a copyright restoration of sorts to the film in 1993 by citing Abend. An Information Tech Law Wiki article (itlaw.wikia.com/wiki/Stewart_v._Abe…) summarizes the SCOTUS ruling for this case.

Through some library acquisitions and company mergers, the film is now under copyright by Paramount Pictures. Under current copyright law, the soundtrack copyrights, provided no extensions are made, will expire in Feb. 2067. By this, I take it that the film with the music will be public domain (again) in Feb. 2067.

As long as a the rights holder is still making money from that work through other rights (music, privacy, publicity) then those works are not actually public domain. In terms of IP, I define a work being in ‘public domain” here as when the rights holders can no longer legally make any money off of any the IP rights coming from that work. Now, I can handle a derivative work (like a colorized version but maximalists doing digital restorations should not count) since at least an initial work is public domain.

Even if all the, you still can’t title a book “Tarzan” without asking ERB, Inc. This is because that name is trademarked. As such, it acts as a perpetual copyright. How else have our copyrights laws become screwed up? Say 1 of the Weissmuller Tarzan movies is out of film copyright but still has the music copyrights.
.

If IP infringement is deemed theft by many people, then re-copyrights and the trademarking a public domain name is “public domain infringement” and thus stealing form the public.

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