How The Supreme Court's Continued Misunderstanding Of Copyright Ruined Halloween

from the costume-copyrights dept

Earlier this year we wrote about a truly awful Supreme Court ruling concerning whether or not the design of cheerleader costumes could be covered by copyright. As we had explained earlier, this ruling could have a major impact on a variety of industries. The key issue is that “useful articles” are not supposed to be subject to copyright. Historically, that’s always meant that the actual design of clothing or costumes is not protected by copyright law. And that’s been a really good thing. It’s inspired much more competition and innovation over the years in the clothing world.

As we noted when the ruling came out, allowing the copyright on cheerleader uniforms to stand, with a weird “new test” (basically whether you can “separate” the design from the useful article, and if the separated design is copyright-eligible), would lead to a lot of lawsuits pushing the boundaries of that test. And that’s exactly what’s happening. And it may ruin Halloween this year. Because suddenly, Halloween costume designers are starting to sue. Specifically, a costume maker named (no joke) “Rasta Imposta” is suing K-mart for having the audacity to sell someone else’s banana costume. Really. This is straight out of the complaint:

Incredibly, Rasta Imposta argues that basic features of a banana are its “distinct visual elements.”

The appearance and trade dress of Rasta Imposta?s distinctive Banana Design is identified by a combination of arbitrary and distinct visual elements which make up its overall appearance, design, and trade dress, including, but not limited to the Banana Design?s bright yellow color with dark tips at the ends, the lines running down the sides, the Banana Design?s placement of the banana ends, and the cutout holes in the Banana Design.

I don’t see how Rasta Imposta can legitimately argue that its copyright covers the yellow color of a banana, the dark tips or lines running down the side. That’s kinda common to all bananas. But, still, it insists another banana is infringing.

The Kmart Totally Ghoul Costume has the same shape as the Banana Design, the ends of the banana are placed similarly, the vertical lines running down the middle of the banana are placed similarly, the one-piece costume is worn on the body the same way as the Banana Design, and the cut out holes are similar to the Banana Design.

And, no, I have no idea why Kmart has named its Banana costume “Totally Ghoul.”

This whole thing seems particularly pointless. It’s a freaking costume of a banana. But, alas, with the Supreme Court flinging open the door to pulling out elements of costumes and making them copyrightable, expect more of these lawsuits.

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Companies: kmart, rasta imposta

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Comments on “How The Supreme Court's Continued Misunderstanding Of Copyright Ruined Halloween”

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102 Comments
carlb (profile) says:

Re: K-Mart?

If you’re in Canada, yes, they went extinct years ago. Actually, it’s worse than that. The stores were either closed or sold to Zellers, another extinct dinosaur. Zellers closed to make way for Target Canada. Again, extinct. There are many vacant former Target Canada locations and often all the landlords can do with the spots is split them into smaller stores.

In another country? Your mileage may vary.

Dan (profile) says:

Who's misunderstanding?

I don’t mean to imply that the ruling involved is correct, or a good thing. But in regards to the function of the court, it is they who dictate our understanding of what a law means, not what we want them to understand it means.

When adverse consequences get bad enough, the push is to get the law rewritten. But that’s not the court’s fault.

TechDescartes (profile) says:

Re: Re: Re: Who's misunderstanding?

What would you say is the distinction between a poor ruling and…oh, look, squirrel!

Don’t change the subject. Your first comment is hilarious:

I don’t mean to imply that the ruling involved is correct, or a good thing. But in regards to the function of the court, it is they who dictate our understanding of what a law means, not what we want them to understand it means.

We want them to dictate our understanding but we don’t want them to understand it in the first place? As I wrote above, that’s hilarious.

And the AC is right. Bad rulings are entirely the court’s fault. But to go ahead and chase your squirrel anyway, bad laws are the legislature’s fault. But they’re not mutually exclusive. A court can issue a bad ruling on a bad law.

Anonymous Coward says:

Re: Who's misunderstanding?

That argument does not hold up.

Its like saying my 1st amendment rights says I can lie about everyone without legal risk…. so long as a court says it is okay. Well… that is just NOT what the 1st says.

We should expect courts to perform due diligence on the law, not to pontificate from the bench! SCOTUS is a failed court, it barely even pretends to respect the law.

There is not a single amendment not under direct assault by the government in America and there is not a single amendment defended by the court(s).

Dan (profile) says:

Re: Re: Who's misunderstanding?

In that scenario, I would say that the root of the problem is that the law preventing you from lying about anyone without legal risk, is a toothless piece of legislative crap.

Actually, legislative crap is is rather the norm these days. It’s no wonder people want to shift blame to the court.

Rekrul says:

Re: Who's misunderstanding?

I don’t mean to imply that the ruling involved is correct, or a good thing. But in regards to the function of the court, it is they who dictate our understanding of what a law means, not what we want them to understand it means.

Courts make bad decisions that go against the law all the time. Witness the fact that the courts have said that your rights don’t apply at the border, or that the “border” extends 100 miles inland. Exactly which part of the Constitution did they pull that from?

Bruce C. says:

Re: Who's misunderstanding?

The court interprets the law, yes.
If they interpret the law incorrectly, that is by clearly a bad ruling. OTOH, by definition, the interpretation by SCOTUS is the correct interpretation of the law until the law is modified, replaced or removed. There is no recourse in the court system if SCOTUS gets it “wrong” unless you somehow persuade them to reverse themselves or the laws are changed in the meantime. The first option typically takes decades.

Anonymous Coward says:

Oh, no, not the "Totally Ghoul" costume!

First, what puzzles you: it’s a pun on “totally cool”, so feeble that takes a trained expert like me to spot it.

In your prior, you were actually RIGHT: “At a first glance this certainly seems to make sense. It has a fairly common sense feel to it — and the majority argues that the plain text of the law supports this interpretation.”

Until you revert to imagination: “But there are some pretty serious potential dangers here.” — That no one is able to just blatantly copy a banana costume?

As to the specific cheerleading designs shown, well, those colors and patterns didn’t arrange themselves, now did they? When sheerly COPY you are just lazy and deserve to be found liable.

But bet is this banana won’t be found infringing. Any reasonable jury will look at it and decide OBVIOUSLY the author here is Nature (or possibly Nature’s God).

aethercowboy (profile) says:

There’s an interesting tax law at play regarding costumes (http://www.npr.org/sections/money/2015/12/18/460315751/episode-670-the-santa-suit). Basically, for tax purposes, there is a distinction between clothing and costumes (also, a similar distinction for dolls vs. toys http://www.radiolab.org/story/177199-mutant-rights/), and that may be at the heart of the battle. It could be argued that costumes are not clothing, and are thus not utilitarian goods.

Granted, that’s a stupid argument, but it’ll probably be the one at the heart of the suit.

hegemon13 says:

Re: So then...

Holy smokes, I totally forgot about that. Used to Ctrl+C out of the super secure student menu on our high school computers and play that all the time. Because apparently a lame, dated game was fun if I was playing it in the school library?

I know this has nothing to do with the OP. But your mention of QBasic Gorillas just made my day.

tp (profile) says:

Banana

Looks like they just cloned someone elses design. This level of similarity cannot happen otherwise. Even if bananas always look the same, their use in costumes is original expression. Then the only matter to consider is whether the design was cloned. If your inspiration was ordinary fruit, the designs would look completely different from each other. While the yellow colour and distinct markings of banana fruit are not copyrightable, getting every detail look exactly the same indicates that inspiration was not ordinary fruit, but something shared by both designs. This means there’s high chance of finding copyright infringement from this system. From this information we cannot say who did the infringement, but timelines of the development activity and the history of the products can indicate who was the original author.

Quite often in these cases, where clear infringement is present, need to be careful about forged history of the products. It’s too easy to invent history for the product, since original author cannot change his history and remain truthful, but people doing infringement knows the development history will be used against him if his history shows a date later than the original, so there’s high chance of forged history appearing in these cases. So relying on historical information is not reliable way to find the original author of the design. So there needs to be other ways to find the author.

Once original author of the design is determined, the case is closed.

That One Guy (profile) says:

Re: Bananas indeed

Speaking of bananas, that is some impressive ‘logic’ to argue that of two banana costumes one of them simply must have copied the other, because it’s not like bananas have a certain look to them or anything such that any banana costume is going to look like… a banana.

If your inspiration was ordinary fruit, the designs would look completely different from each other.

Morbid curiosity compels me to ask just what exactly you think a ‘non-infringing’ banana costume would potentially look like, while still clearly being a banana costume.

tp (profile) says:

Re: Re: Bananas indeed

Morbid curiosity compels me to ask just what exactly you think a ‘non-infringing’ banana costume would potentially look like, while still clearly being a banana costume.

Well, maybe the banana wasn’t placed exactly the same position in the costume, or the holes for hands/legs of a human being would be in different position in it.

There is slight chance that both designers ended up in the exactly the same positioning for the banana in the costume, but then they’d need to do some evil math about center of gravity for ordinary banana that cannot be done in any other way. And if both designs are doing the same calculations and arrive the exact same design, then they both need to be experts on some evil math. If they both went to same design school or learned exactly the same design principles, thought about the same issues while designing the costume, it’s theorethically possible that the design looks the same.

But then again, it’s just much easier to believe that the design was cloned.

Anonymous Coward says:

Re: Re: Re: Bananas indeed

It’s just much easier to believe that Disney didn’t ask for the original rights to the public domain content they used for their animated movies. Yet, you would rather give them the benefit of the doubt and furiously bend over backwards to argue against anyone who disagrees with you.

But of course a banana is indisputably copyrightable all of a sudden. You copyright fanboys are a bunch of twisted nutters, I’ll give you that.

tp (profile) says:

Re: Re: Re:2 Bananas indeed

But of course a banana is indisputably copyrightable all of a sudden.

Well, copyright will only apply, if there’s some humans who are spending some effort to create copyrightable works. Designing a banana costume clearly takes some effort. Anyone who clones this design, will save the work amount – it suddenly becomes very cheap to do it. Thus there’s no incentive to create anything new, since cloning is much more efficient way to get the same result. If only it wasn’t illegal to do it.

Too bad that our progress depends on new innovation, so we also need those people who actually spends the effort and creates these new designs.

The more effort it takes, the stronger should copyright protections be. This is why RIAA gets strong copyright protection, since they actually spent some significant amount of time pressing “record” button on their sounds gadgets. Oh, it takes money to buy the recording gadgets, or worst case build those gadgets yourself to get best sound quality.

Anonymous Coward says:

Re: Re: Re:3 Bananas indeed

Anyone who clones this design, will save the work amount – it suddenly becomes very cheap to do it.

Right, because the second banana costume was suddenly alleviated of its cost of manufacturing. The "cloning" argument might have barely passed the laugh test if this was about file duplication. Are you saying the second banana costume cost nothing to produce and magically spawned its raw materials and construction process out of the void?

By the by, the RIAA doesn’t press the record button. The studios do; the RIAA is simply the legal PR department that sues grandmothers. For such a staunch "the law is the law is the law" copyright advocate you don’t seem to grasp much of it, but what else did we expect from someone who loathes the idea of fair use?

Mike Masnick (profile) says:

Re: Re: Re:5 Bananas indeed

  • That’s the effort from which the copyrighted work was created*

It has already been pointed out to you that the Supreme Court has explicitly rejected "sweat of the brow" arguments for copyright. Copyright is officially not about the effort to create. It is only for new creative expression. And it does not apply to "useful articles" such as costumes.

tp (profile) says:

Re: Re: Re:6 Bananas indeed

Supreme Court has explicitly rejected “sweat of the brow” arguments for copyright. Copyright is officially not about the effort to create

This is not true. Both “effort” and “creative expression” are required for copyright. Your supreme court decision is about situation where creative expression was missing and whether “effot alone” would activate copyright.

My position is that both are required. This “amount of effort being low” is the reason why banana costume design is not going to get tons of money from their copyright lawsuit, even if technical requirements for copyright infringement by the other party are explicitly fullfilled.

In fact, effort can be used as one “test” to check whether your activity is in dangerous area relative to copyright. If you have tons of effort which you rely on, made by other people than yourself, then there’s always
a question: “what makes you able to use the other person’s effort to your advantage?” Usually the answer should be that you sent some money to the other person to buy the license (to that effort). This also happens when you buy food, so why would copyrighted works be any different?

tp (profile) says:

Re: Re: Re:8 Bananas indeed

Just as well, because fair use would simply cease to exist if that happened.

Why would fair use be anything useful. You’re supposed to follow the general rule which forbids all the stuff that you’d want to do with copyrighted works. Fair use is just a limited exception which should be invoked only if all your other defenses are failing. This is why it’s only considered after both sueing parties have accumulated millions of lawyers fees and are going to pay tons of money anyway.

Anonymous Coward says:

Re: Re: Re:9 Bananas indeed

Fair use is a hyperbolic example, because you think that making a banana costume requires such an immense amount of effort that the courts have to protect its application despite tons of other similar banana costumes already existing as Andrew D. Todd has pointed out. The only reason why this case is happening at all is because the plaintiffs chose to be litigious assholes.

Otherwise, what’s your excuse for why the plaintiffs in this case shouldn’t be likewise sued by anyone else who’s ever made a commercially available banana costume?

cpt kangarooski says:

Re: Re: Re:7 Bananas indeed

In US law, in order for copyright to apply to a work, the work, among other requirements must be a work of authorship and must have required a modicum of creativity. If you like, you could consider this as being a requirement of some artistic effort, but you’re reading too much into it. Once the threshold is cleared, and it is very very low indeed, it’s utterly irrelevant how much more effort was required.

A simple ‘roses are red’ poem (which have become popular as memes lately) would be sufficient and thus be just as protected as a world-class work of art that took a lifetime and titanic effort to create. The additional effort expended as to the latter is of no legal importance.

Likewise, with regard to your comment below about ‘attaching to someone else’s popularity,’ that is not a form of co-right infringement here. In fact I’ve never even heard of anyone advancing the notion. Copyright infringement of the general sort you’re thinking of (as opposed to unauthorized distribution, say) requires actual copying, whether proven directly or shown to have been the most likely explanation for similarities between two works.

Letting someone else blaze the trail for you, however, has never been prohibited. If it were, there probably would not be so many similar works floating around, e.g. the infamous Die Hard on a _______ movies that could not easily be avoided in the 90s.

tp (profile) says:

Re: Re: Re:8 Bananas indeed

Copyright infringement of the general sort you’re thinking of (as opposed to unauthorized distribution, say) requires actual copying,

Well, the “attaching to someone else’s popularity” is a common theme between trademark law and copyright law. The reason for violating trademarks is usually to confuse the buyer of the origin of the product, in such way that they’ll more likely buy it when they trust the vendor. Copyrights have similar purpose, in such way that product being copied thousands of times uses someone elses design to extract money from the buyer. Both cases, the law violators avoided doing the hard work and skipped the actual effort involved in creation or marketing of the product and making it popular among the market participants. Both(trademark/copyright) issues fall into the scope of “attaching to someone elses popularity”.

tp (profile) says:

Re: Re: Re:8 Bananas indeed

Once the threshold is cleared, and it is very very low indeed, it’s utterly irrelevant how much more effort was required.

I don’t think this is true. If you consider low bar for effort, then you have no valid reasoning why authors would be able to demand the rest of the world to follow the copyright’s rules. Simply following the (global) rule has a significant cost attached to it, and if authors didn’t spend large effort to create those works, there would be no good reason to absorb the cost of globally following copyright. The effort is why authors can demand rest of the world do something.

cpt kangarooski says:

Re: Re: Re:9 Bananas indeed

“If you consider low bar for effort, then you have no valid reasoning why authors would be able to demand the rest of the world to follow the copyright’s rules.”

Who said that the demands of authors were valid in the first place?

Copyright is utilitarian in nature; it isn’t meant to exist to protect authors, its meant to enrich the public at large. Any benefits it may happen to confer to authors are just a means to an end and subject to change.

I certainly don’t have a problem with tiered levels of copyright (though that doesn’t really exist now, mind you) but it’s not a good idea to base it directly on effort expended. Better to base it on what amount, if any, of artificial incentive is needed to cause the work to be created and published, and whether it’s worthwhile to provide that incentive.

As for your comment on attaching to popularity, it’s not all that accurate. Consider, for example, the popular Christmas movie “It’s a Wonderful Life.” It was never very popular until, after it entered the public domain (because the copyright was not renewed; a good indicator of how unpopular it was) television stations started airing it because it was free. Capra himself didn’t take credit for the popularity of the thing. But then the copyright holder in the story it was based on popped up and shut it all down; the movie is not aired nearly so much now as a result. It was the pirates who made it popular and the copyright holder who attached onto their work.

In any event, the law is unconcerned with that idea. Copying etc are illegal regardless of popularity, regardless of profit motive, regardless of effort expended by either author or pirate (and it’s entirely possible for an infringer to expend more effort than the author; see the Buchwald v. Paramount suit for a well-known example, albeit founded in contract rather than copyright); the law is instead focused on whether specific acts occur and that’s it.

Mike Masnick (profile) says:

Re: Re: Re:7 Bananas indeed

This is not true. Both "effort" and "creative expression" are required for copyright.

You can say this as many times as you want and it doesn’t make it true. The effort is not required for copyright in the US (other countries are different). There is literally no effort required. Just creativity.

My position is that both are required.

Your position is not the law of the US. It is directly contradicted by the law of the US.

In fact, effort can be used as one "test" to check whether your activity is in dangerous area relative to copyright.

This is not one of the tests under US law. You are making this up.

I don’t want to be mean, but you appear to have zero knowledge of actual copyright law and, instead, are making shit up about how you think the law should work, that are directly contradicted by the actual law. Please stop.

tp (profile) says:

Re: Re: Re:8 Bananas indeed

I don’t want to be mean, but you appear to have zero knowledge of actual copyright law

You’re focusing too much what the actual law is saying, and too little about “what you can do within the limits”.
Reading the law books isn’t the right way to handle this issue.

Most of the new innovation in technology area seems to be just stretching the limits of where copyright law can go;
1) google’s book scanning ideas where they want permission to every book on the planet
2) youtube has been sued several times for pirated movies / they get tons of DCMA notices via automated systems
3) pirate bay is clearly stretching the limits /
were already marked criminal
4) DCMA’s new rules
5) vcr’s and digiboxes are obviously been sued for
displaying hollywood movies without permission
6) wikipedia using tons of free slaves to write their encyclopedia
7) linux&free software giving permission to world&dog

All the innovation in technology sector seems to be based on innovative reading of the copyright laws. To get progress you need to find new angle to the old rules.

Why would staying in the old way of thinking be the only way to do these things?

Anonymous Coward says:

Re: Re: Re:9 Bananas indeed

Funnily enough, focusing on what the law is saying is exactly why we’re getting all the nonsense we are right now, with babies getting sued for dancing to music and so on. And now when it looks inconvenient for your idiocy, suddenly you think that the law doesn’t matter and you’re allowed to pull whatever you want out of your ass?

tp (profile) says:

Re: Re: Re:10 Bananas indeed

Funnily enough, focusing on what the law is saying is exactly why we’re getting all the nonsense we are right now, with babies getting sued for dancing to music and so on.

Guess the babies didn’t understand the fine details of copyight law before posting videos to youtube. Is there some reason why the “illegal operation” always need to be end user’s responsibility to get right, instead of the platforms actually trying to follow the rules?

Even browsers are making downloading operation completely automatic, and RIAA’s position is that “You wouldn’t download a car”. Why is browsers not following riaa’s advice that downloading is evil? Now browsers are supporting videos, so anyone can do copyright infringement of hollywood movies, and technology vendors are making it as easy as possible to do the illegal operation even though they know that all the video content has copyright protection in it.

There is a better way. The platforms could actually try to check that end users don’t need to choose between illegal way of doing things and legal way of doing things.

Anonymous Coward says:

Re: Re: Re:11 Bananas indeed

And this supposed solution of yours has already been proven impossible. Viacom sued YouTube over videos posted to YouTube… that Viacom posted themselves. If even the plaintiffs can’t be bothered to check if what they upload is legal or permissible or not how the hell is anyone else supposed to know?

For fuck’s sake, when your solution is expecting infants who can barely walk to know copyright law before posting videos of themselves, which they didn’t take, on the Internet, you know you have some pretty fucked up ways of thinking…

cpt kangarooski says:

Re: Re: Re:9 Bananas indeed

If you’re interested in new and different copyright laws, you’re in the right place; copyright reform is a popular subject around here. But your posts in this thread aren’t framed as reforms (such as, “the law should say x”) but are instead clearly statements, generally inaccurate statements, of what the law is (saying that certain acts are infringing, that copyright has certain requirements, rather than that it should or that you want it to).

It’s also pretty weird to see your notes about Wikipedia and free software, as surely people ought to be able to volunteer their services and willingly forgo copyrights. I suspect you are big into moral rights.

tp (profile) says:

Re: Re: Re:10 Bananas indeed

generally inaccurate statements,

Obviously all humans are inaccurate. This level of accuracy that is currently required to navigate the copyright minefield, shouldn’t be required from any humans.

Programmers are experts at handling tons of complex logic. So copyright’s small rules shouldn’t be big problems for experts in the field. Unfortunately the market is wired in such way that the whole market is pushing other players to commit copyright infringement.
When they can’t do it themselves, they just find someone else to push the blame to.
Their steps are as follows: 1) make it possible first, 2) then make it necessary to use the service 3) when someone notices that it’s too easy to do, blame the criminals.

> (saying that certain acts are infringing, that copyright has certain requirements, rather than that it should or that you want it to).

Well, this is necessary. The world is already way outside the legal area.

Anonymous Coward says:

Re: Re: Re:11 Bananas indeed

So copyright’s small rules shouldn’t be big problems for experts in the field

The Copyright rules are not the problem, but rather a lack of a central database of all copyrighted works, and all licenses to use those works that have been issued. Without that at a minimum, there is no way of recognizing whether a work is infringing or not, unless you are the owner of the copyright. And that is before considerations of fair use are brought into the equation.

tp (profile) says:

Re: Re: Re:12 Bananas indeed

The Copyright rules are not the problem, but rather a lack of a central database of all copyrighted works, and all licenses to use those works that have been issued.

This isn’t required. Global issues cannot be handled in centralized manner, because that central place would be flooded with requests.

> Without that at a minimum, there is no way of recognizing whether a work is infringing or not

This isn’t true. It’s very easy to detect if a work is infringing. The steps are as follows:
1) split the work to it’s parts
2) evaluate the effort required to build each part
3) sum the efforts
4) compare the effort to the size of the team of the vendor

I.e. when your pirates are offering you copyrighted products, and pirate group has 3 persons in a garage, their portfolio of 2000 movies might not be exactly legal. If in doubt, you can ask them where they got a license to the movies from.

There’s another way:
1) split the work it it’s parts
2) find authors of each part
3) compare it to copyright-notice’s author name
4) find the link between original authors and the vendor where you found the product from

There’s 3rd way:
1) Split the work to it’s parts
2) calculate the amount of money required to create it
3) split it to the market size of the product
4) compare it to the price you paid for the product

If the price is too low, then they’re either using slave labor to produce the item, or it’s a pirate operation.

Note that these steps are almost automatic, since you anyway need to know the authorised vendor’s name, so that your money goes to the right party when you’re buying your license to use the product. The extra effort is needed to hand over the money to the right vendor.

Anonymous Coward says:

Re: Re: Re:13 Bananas indeed

Many your tests are based on the false assumption that people only create new works so as to earn money. Also you are overlooking that these days the equipment needed to produce sophisticated works is now cheap. Many creators create because they are driven to express themselves, and to share what they have created.

Also patronage has made a comeback, so people are being given money to create new works which they give away.

The suggestion of working from author to permissions requires a central database so that not only can authors can be traced, but also who currently owns the copyright, which may have been transferred to a publisher, or passed on as an inheritance. The idea that such a database cannot cope in a world with Twitter and Facebook is either a total failure to understand technology, or a desire to to keep copyright ownership obscured so that mistakes in DMCA and similar requests are harder to detect.

tp (profile) says:

Re: Re: Re:14 Bananas indeed

Many your tests are based on the false assumption that people only create new works so as to earn money.

Well, activity that does not produce money cannot be sustained for longer periods of time. This means all the nice things we’re currently seeing in the market is going to disappear when their responsible persons need to move to do something more profitable.

> Also you are overlooking that these days the equipment needed to produce sophisticated works is now cheap.

I they’re using some sophisticated tools to do the creation, then you can count the effort to create those tools to the calculation. Might be able to detect if the
tools were pirated or built using slave labor.

Anonymous Coward says:

Re: Re: Re:15 Bananas indeed

Well, activity that does not produce money cannot be sustained for longer periods of time.

Completely false, as some people create content for the same reason that some people climb mountains, it’s what they do, and their job is what funds the activity that they are passionate about..

Also, all the software tools needed for creative work are available for free in the Free and open source world, and that is not the product of slave labor, but rather people being passionate about what they can do with software, and quite a few are supported via various forms of patronage, or hired to work on a piece of open source software because a company uses it and want extra features.

About the only people who are threatened by the self published content on the Internet are the legacy publishers, and the threat to them is that more and more creative people are realizing that they do not need their services, and that the sales for individual titles, are likely to fall to a level, where they generate enough income for a self publisher, but nowhere near enough to keep a fat bureaucracy in employment.

cpt kangarooski says:

Re: Re: Re:13 Bananas indeed

This’ll be my last reply to you, as you’re clearly nuts, but it is often very difficult to determine if a work, or a use of a work is infringing, and none of your ideas for how to do it have any merit or any foundation in copyright law. Further, please note that we do have centralized patent offices with central registries of patented inventions, and have in the past had centralized copyright offices with central registries of copyrighted works. It’s a fairly trivial thing to do, involves little effort on the part of rights holders, but is essential for any decent system of copyrights or patents.

Anyway, you seem to have a very different writing style from the usual idiot who posts garbage here, so I will assume you’re not that person. In that case, please let me be the first to invite you to either stop wasting everyone’s time until you’ve learned something and can be a productive conversationalist or to get lost. Thanks so much.

Andrew D. Todd (user link) says:

Re: Re: Re:6 Bananas indeed

Imagine a case in which all the documents were in Bulgarian, and the judge would not admit that he needed a translator. In that case, one might expect misadventures similar to those which happen when American jurists venture on artistic subjects. English is a compulsory subject in an American high school. Art, Music, and Dance are not. Such instruction as there is, practically ceases at about the third grade. The result is that people like lawyers have no background to interpret art, music, or dance.

These copyright cases seem to involve things which, considered as works of art, are very trivial. Cases involve ring-tones, not the extent to which one symphony may be derivative of another. A work of literature, or a work of art, demands something from the reader or the viewer, or listener, as the case may be. Things which are highly marketable tend to be “cheap thrills,” which don’t demand much of anything from the consumer.

Last night, I walked down to the corner store, and there was a young man picking out a Halloween costume for his two-year-old son. He settled on a Darth Vader costume, which I presume was properly licensed, and all. But here is the problem: The Darth Vader head starts with a 1940 Wehrmacht standard-issue coal-scuttle helmet, combined with a fairly generic gas mask, both painted black. George Lucas wanted to make two fairly concrete points about Darth Vader/Anakin Skywalker, that he was Regular Army, and that he couldn’t breathe the air which everyone else breathed, and he pulled down two standard cliches for the purpose. Of course there was the conventional displacement from the American army to the German army. I don’t think any sensible person would call Star Wars a serious movie– it begs too many political, economic, and technological questions. As a serious work, it would not be considered in the same league as Apocalypse Now, or even the little-known TV-movie Weekend War.

To clarify, “tp” is in Tampere, whcih is in Finland, and we are speaking of Ameican copyright law. The rejection of “sweat of the brow” is not of course the only restriction on copyright. There have been some cases involving fictional works about factual incidents, and court decisions have held that copyright could only apply to those aspects of the fictional works which departed from the facts, and this would presumably also apply to previous public-domain works. Consulting a dictionary of English slang, dated 1981, I find that “banana” has a well-established sexual meaning, and this dictates positioning the banana so that part of it forms a “codpiece.” When you pull out the elements of the banana costume which can be shown to be either ancient or widespread, there is essentially nothing left. A one-liner joke only works because everyone already know it. There is the story about the two stage comedians who used the same joke-book, and could amuse each-other by reciting page numbers.

Incidentally, I went through a list of what I consider good movies, trying to see if any of them had “merchandise.” About the only one which did was Anne of Green Gables. This has becone a cult book/film for Japanese girls, who have the kind of stressful relations with their mothers which American girls have not had for a hundred years. So a Japanese girl buys hersef a wig of red hair with pigtails.

tp (profile) says:

Re: Re: Re:7 Bananas indeed

A one-liner joke only works because everyone already know it.

This is exactly in the dangerous territory in the copyright issues. Your sales pitch uses the terminology that was created in 1960’s with huge amount of effort. Everyone knows the same stuff simply because there was tons of people spreading the marketing messages for several decades.

We call it “attaching to someone elses popularity”. it’s one form of copyright infringement. Usage of darth vader’s helmet is another such situation. Pirates in copyright cases are always choosing the most popular works of art — they never try to start the marketing effort from scratch — instead they find something that is already popular, and try to take advantage of the existing situation.

But you can’t build a business around someone elses work. Your product need to be high enough quality that it sells itself without attaching it to something hugely more popular.

Anonymous Coward says:

Re: Re: Re:8 Bananas indeed

But you can’t build a business around someone elses work. Your product need to be high enough quality that it sells itself without attaching it to something hugely more popular.

I don’t see many Disney shops selling Disney merchandise, outside of them parks. Also, the most popular Disney works and themes in the parks are all from the public domain, so they have built their business by attaching to something already popular.

Anonymous Coward says:

Re: Re: Re:8 Bananas indeed

“attaching to someone elses popularity”.

Are you suggesting that copyright include nebulous things such as popularity?

Do you ever wonder why some folk reject such demands and do not purchase and do not want to pirate … they simply are not interested in whatever the product is. I know this is difficult for some to fathom, but it does occur and accusing said people of piracy simply because they have not purchased said item ….. is insane.

tp (profile) says:

Re: Re: Re:9 Bananas indeed

> “attaching to someone elses popularity”.

> Are you suggesting that copyright include nebulous things such as popularity?

It already includes such things. It’s just included in the side that people rarely see, i.e the copyright infringement area is full of popular works. This is because pirates also reject the products if they’re not the most popular products on the planet.

> Do you ever wonder why some folk reject such demands and do not purchase and do not want to pirate

Yes, it’s not the most popular product on the planet.

> … they simply are not interested in whatever the product is.

Well, this is because there’s flood of pirated stuff coming everywhere in the market and end users are struggling to find actual authors who create any of the products people are consuming. Guess the products are coming from other side of the globe and their authors are just ignored.

This flood of high quality pirated goods which were selected from professional companies product catalogs are eating the market of lower quality indie authors. Thus individual authors are seeing their quality requirements to rise to level they cannot reach, before they can get access to markets.

Anonymous Coward says:

Re: Re: Re:10 Bananas indeed

Copyright law does not include popularity. That’s why every so often you get someone nobody’s ever heard of demanding money because they’re not rich enough… because obviously their work must have been pirated, otherwise they’d be swimming in money. Funnily enough, the common rebuttal trolls provide for indie authors that benefit from piracy is that nobody would ever download their stuff because everyone likes Hollywood…

Anonymous Coward says:

Re: Re: Re:10 Bananas indeed

“Well, this is because there’s flood of pirated stuff coming everywhere in the market and end users are struggling to find …”

No – There are some people who are not “struggling to find” movies/music, as they are not interested – in any of it. Not sure why this concept is so foreign.

Andrew D. Todd (user link) says:

Re: Re: Re: The Claim of Copyright Originality is Usually a Sign of Ignorance Of What Has Gone Before.

I located a George Cruikshank cartoon, from the early nineteenth century, which shows various articles of food, and various dishes, with attached arms and legs, walking towards the mouth of an eater (Dick Sutphen, The Early Illustrators, 1976, p. 118). George Cruikshank had the basic idea two hundred years ago. I grant that there is not a banana (), but there is a dish of oranges, burlesqued into the silhouette of a girl in a ballerina costume. The mere concept of turning a fruit into a costume is and old idea, and it is immediately obvious to do it to a banana.

() I don’t thing bananas were available in Europe at that date, this being before steamships. Walter Scott refers to pineapples as a luxury good in Guy Mannering.

Similarly, you may recall the scene in Harper Lee’s To Kill a Mockingbird, in which the heroine gets into difficulties because she is wearing a food costume which does not allow her to see out. The banana costume is in fact a fairly commonplace idea.

When you add “mechanical considerations,” such as how is the wearer of the costume to sit down, that dictates whatever positioning is still open to negotiation after achieving a likeness of a banana. Here is an instance from the ballerina Margot Fonteyn’s autobiography. When she was called upon to dance the part of the cat in Peter and the Wolf, the costumers gave her a cat-mask to wear, However, inside the mask, she felt spatially disoriented, and unsure which direction was which, a truly pitiable condition for a dancer. She had to negotiate with the costumers about cutting the mask down to the absolute minimum which the audience would agree to recognize as a cat, and not a duck. Even stage clothing has considerable utilitarian considerations.

Barry Werbin (user link) says:

How The Supreme Court's Continued Misunderstanding Of Copyright Ruined Halloween

The copyrightability of Halloween costumes is not new, and in fact was upheld over a decade ago by the Second Circuit in Chosun International Inc. v. Chrisha Creations Ltd., 13 F.3d 324 (2d Cir. 2005), which concerned plush animal Halloween bodysuit costumes, where that court also adopted the test for conceptual separability. That test goes all the way back to a 1954 Supreme Court decision, Mazer v. Stein, 347 U.S. 201, involving a utilitarian lamp with a base designed like a dancer. Designs affixed to garments are distinct from the garment designs themselves (shape and cut), which are not protected. The Supreme Court’s recent Star Athletica decision was not really a radical decision and it still leaves the question of originality of imprinted apparel designs to be assessed in each case.

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