*NO*. "The Mouse" was a big issue driving the last couple of extensions
of the duration of _copyright_. Early Disney works -- e.g. "Steamboat Willy"
were about to run out of eligibility for copyright protection. Meaning that
_anybody_ could duplicate and sell those works. Would *not* be a trademark
infringement issue, as long as they represented what they were selling _as_
ITYM "as long as they did NOT represent what ..."
IMHO, cartoon characters SHOULD be protected under trademark,
rather than copyright. SOME cartoon characters, when used to
represent a commercial entity, like caricatures representing
sports teams ARE treated as trademarks.
IIUC, they can be both. The character may be a part of a logo or represent a
particular business as a trademark, but in the Sunday funnies, that strip
would be protected under copyright. OTOH, a character that happens to
appears in a strip would not necessarily be used as a trademark.
Clint Eastwood's work in copyrighted, but he is not a trademark. Alfred
Hitchcock's work is copyrighted, but his profile is trademarked.
No, I meant _exactly_ what I said. Referencing the 'creative work'.
It is no different than a used car dealer selling "Ford" automobiles.
Using the trademarked name, to refer to the trademark owner's item is *not*
infringement (or 'dilution') of the trademark.
Producing a 'new' work, using the trademarked character _would_ be violation
Reproducing the _trademark_owner's_ work is *not* _trademark_ infringement,
Unless you are representing that is something other than the trademark owner's
Trademark *alone* is not sufficient protection.
*NEITHER* is copyright, alone.
You need trademark to prevent people from creating their own works using the
You need copyright to prevent people from copying _your_ works.
There's a bunch of case-law on this -- a lot from the newspaper cartoon-strip
Actually, they're not really pulling his chain mac. I don't think the clerk
was right in this particular case, since the photo had no copyright (or
related) information on it, but in a more general sense, Walmart is right in
the way they handle the copyright issue. As the OP indicated, all he had to
do was to sign a document that stated blah, blah, blah...
I represent a number of professional photographers in Canada and in the USA.
In both countries,
Copyright is automatically assigned to the photographer with two
1. The photographer is taking the picture un the course of his employment.
(In this case the copyright belongs to the employer).
2. There is a specific written agreement, between the photographer and
client, that assigns the copyright to a third party.
When you hire a photographer, you do not become his employer and, therefore,
are not entitled to an automatic copyright.
Copyright is automatic, in favour of the photographer, upon production
(prints, digital images etc.,) of the photograph.
Under current legislation, virtually ALL photographs are copyright.
A written notice of copyright, on the image or on the back of the image, has
no effect on the assignment of copyright and is not required to establish
Copyright does not expire when the photographer dies. The copyright becomes
the property of the photographer's estate and remains valid for 75 years
following his death.
Almost all photographs have "Commercial Value" even if it is just the value
obtained from selling further copies of the work.
In short, if you did not take the photograph and are not certain, to the
point of being able to proove it, that the photographer has been dead for at
least 75 years -- There is a very good chance that making that copy will be
Many large volumes photofinishers have already been caught in this web. It
is probably unreasonable to ask them to accept the risks of litigation in
exchange for the dollar or two that they will make on duplicating an image.
If you are comfortable signing their "hold harmless" waiver, then you "pays
your money and takes your chances."
OK, the law is the law and I'm not going to dispute it, but what do you do
as a practical matter?
You have an old family photo take by a professional about 55 years ago.
There is a good probability the photographer is dead as he would be 75+
years old, maybe over 100. His business has been long gone, closed up
probably 40+ years ago. No one can recall his name as we were only kids and
our parents and grandparents are also long gone. The copyright would still
be in effect if any of the unknown heirs are alive.
How do you go about getting the photo copied?
Edwin Pawlowski (in vkFve.585$ email@example.com) said:
| How do you go about getting the photo copied?
D'you suppose I should work up a plan for a wooden copy easel so you
can take pictures of your pictures? The commercial jobs can be fairly
expensive but shouldn't be all that difficult to build in a home
DeSoto, Iowa USA
Regardless of how you do it, you will be doing it in violation of the
copyright unless the photographer died intesttate, or shiel alive or
in his will expressly (not implicitely, but expressly) put his work
into the public domain, or his heirs have done so, or you actually
can find his heirs to get their permission.
Just because you want to do something does not mean that it will be
legal for you to do that thing. Regrettably, this is true for
many 'things' where the prohibition is truly insensible.
.Just because it is illegal, does not mean I'm not going to do it. :)
While I consider myself to be a law abiding citizen, there also has to be
some common sense. I'd not do it for commercial works, but for family
photos, the law just does not work under these circumstances.
copyright and patent law are contrary to the
original idea. Most of the changes seem to be
aimed, not at the artists, but at the producers,
e.g., record companies, recording studios,
computer programs etc. Extending the right well
beyond the the death of the originator is counter
productive to protecting the inventiveness of
artists and scientific progress. The original
patent and copyright laws were to the point
(artists and inventors) but the changes have
changed the focal point to salesmen and
distributors who contribute little.
'Actionable' I think, is the preferred term since the sort of
copying you intend would not rise to criminal conduct.
Your 'defense' is practical, rather than legal. That is to say
the 'wronged' party, even if still alive, most likely will remain
forever ignorant of the infringement. And if not, most likely
will not care.
Just do it. In my case, the photo was taken 60+ years ago, by an adult
male, just before WWII. At that time, IIRC, copyrights were for either
26 or 28 years, and could be extended for another 26 or 28 IF a form
was filed. It is exceptionally unlikely that the form was filed, so the
photo is probably in the public domain. Once something is in the public
domain, it stays there, AFAIK.
We constantly see reprints of 100 year old material with copyright
notices on them. You also see reprints of Government Printing Office
material with copyrights by the new publisher. Regardless of what the
publisher would like you to think, such copyrights only apply to new
material, not to old, which usually means a new foreword or
introduction, or, possibly, a new arrangement of pagination.
As a writer, I am in favor of strong copyright laws, but some of the
current law is totally arrant nonsense, including the asininity of
presumed copyright on exceptionally old photos (those taken today are
good for a lot longer time than I describe above, which is also
ridiculous: does anyone believe Olan Mills or any similar company will
be in business in 100 years? Or that today's small company
photographers will care about benefits from photos taken today, or, in
fact, will be able to benefit after customers are scattered far and
wide? If it were practical for customers, or the relations of
customers, to locate the photographer or the photographer's company in
100 years and request reprints, I'd feel differently, but in every case
I've ever seen or heard of, it is literally impossible).
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