But is it even possible to retroactively extend copyright once it's expired?
It's been done before in the US.
Or, for that matter, *should* copyright be extended?
Not only no, but hell no. It should be massively shortened.
I agree generally, except as to the last point: the character is Mickey Mouse. Nominative use permits the use of his name. In fact, given the almost total lack of dialogue or title cards for Steamboat Willie, and given the marketing of the thing ('Mickey Mouse in Steamboat Willie'), there's no reason to think that that is even the name of the character the Mickey Mouse character is portraying. Steamboat Willie is merely the name of the cartoon, and is evocative of Steamboat Bill, which is the pre-existing song that Mickey is whistling at the beginning.
In addition, remember that there are actually three Mickey Mouse short films hitting the public domain in 2024: Steamboat Willie, Plane Crazy, and The Galloping Gaucho. He can't be all of them, and Plane Crazy doesn't even make sense as a character name.
but if you try to use Mickey Mouse you could run afoul of trademark law since Mickey is a trademark
It depends on how you use it. If you use the Mickey Mouse character in a new creative work, that should be fine. If you use the Mickey Mouse character in connection with goods or services otherwise (e.g. on the wrapper of Mickey Mouse-branded chewing gum, for example), then you'll probably have legal trouble.
In the case of works made for hire, the Copyright Act of 1976 set the "life" portion of the copyright term at 25 years after publication or 50 years after creation, whichever comes first. The 1998 extension did not change this definition of "life".
No it didn't, that's just stupid.
There are simply several different terms for different circumstances. You can find them easily at 17 USC 302-305.
For works created on or after January 1, 1978, the term is the life of the author plus 70 years. (Originally it was life + 50, and the extension simply added 20 years)
However, if the work is a joint work by multiple authors, the life in question is the life of the last surviving author.
And if the work is a work made for hire, or psuedonymous, or anonymous, then the term is a straightforward 95 years from the date of its first publication, or 120 years from the date of its creation, whichever is shorter. Life is not a factor whatsoever, unless the author reveals their identity by certain means before the time period runs out, in which case it switches over to the usual life + 70 rule as given above because now it's practical to determine that. Again, the terms had been 75 or 100 years, and the extension simply added 20 years.
There are additional rules for works created before but not published by January 1, 1978, and for works which were already copyrighted prior to January 1, 1978.
There's several, but the one relevant to this discussion is fair use, at 17 USC 107. While the for-profit nature of the use is a factor to be considered in the fair use analysis, that does not, by itself, indicate that the use is unfair.
I would suggest taking a look at Author's Guild, Inc. v. Google, Inc., 804 F.3d 202 (2nd Cir. 2013) for a similar project in which a for-profit corporation copied and used copyrighted materials in their own project, in bulk, for profit, and was held not to have infringed on copyright in the process.
Given that AI training is not some sort of magic compression that breaks Shannon's Law, the use of works to train software is, if anything, even more fair than Google Book Search, which does copy entire works and store them permaently, even if they are not fully made available to the user.
This is pretty much what everyone expected. I was always surprised that Apple didn't give themselves a workaround by offering -- at least for the very high end -- the option to put new guts into the old case. Not really their usual MO, but it might have helped sell some more of the super expensive models, if that was important to them.
Copyrights in a character is really just a shorthand way of referring to the portions of one or more copyrighted works that describe the character, often as a gestalt.
But there is not really such a thing as a character copyright; only copyrights in works.
If you make your own Mickey cartoon you are at least infringing on the Steamboat Willie copyright from 1928 and maybe more depending on what version of Mickey you use.
Good news though: The 1928 version hits the public domain in three months. So long as you don't copy from later, still copyrighted works, you will be able to go nuts.
(For example, his voice came out in 1930, as I recall, so until the work that introduced the distinctive Mickey voice is also public domain, better err on the side of a Mickey that sounds like Barry White)
You said two ways and first -- what's the second?
Also, the person who holds the copyright of a preexisting work used as the basis for a derivative work does not get the copyright of an infringing derived work. That would be unconstitutional, and it's not in the law. Rather the copyright of a derivative work is only on the original portions, and to the extent that it is derivative an unauthorized work may simply not be copyrightable. This is all under 17 USC 103.
We're basically on our way to making something like the Star Trek holodeck -- you give the computer some instructions as to what you want, as basic or detailed as you like, and then you have fun with it.
Frankly, I'm looking forward to it.
Ugh, no.
The "legal term for a copyright violation is literally" copyright infringement. You can see this at 17 USC 501.
Here is the definition in the law of 'derivative work':
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".
While it can be an infringement to prepare a derivative work under 17 USC 106, it can also be perfectly legal -- such as if the preexisting work is in the public domain, is used by that work's copyright holder or with their permission, or if it falls under some other exception to copyright, such as fair use under 17 USC 107.
For example, Detective Comics 27 introduced Batman. Pretty certainly every subsequent Batman comic is ultimately derivative of that. The Batman films and tv shows are derivative works based on the comics, etc.
Nothing wrong with a work being a derivative work. They can even be quite good, like how the Aeneid is fanfic of the Iliad.
âFraid not.
You should take a look at https://www.law.cornell.edu/us... â>17 USC 106 â" it sets forth the primary exclusive rights of copyright. When it is said that one is engaging in copyright infringement, these are almost always the rights being infringed upon.
One of them is reproducing a work in copies, i.e. copying. Technically, itâ(TM)s when you fix a work into a tangible medium of expression that it wasnâ(TM)t previously fixed in. Another is distributing copies. Theyâ(TM)re separate rights; you can infringe on one, or the other, or both.
It is another thing altogether to read The Fellowship of the Ring and then write a book Companionship of the Amulet that has roughly the same plot. The more similar my work is to the original work the more likely it is to be ruled derivative and then what I can do with my work becomes strictly curtailed.
There's an interesting experiment for you:
Put copies of an AI on two different computers, and make them identical in every way except that one of them has had their training data searched for the text of the Lord of the Rings books, and it's been deleted. Then give them identical prompts, and to the extent they use random number generators, fake it by giving them the same random numbers (e.g. https://xkcd.com/221/">4), and see what they come up with.
Because similarity, even perfectly identical works, isn't enough for infringement. There has to have been actual copying. And fantasy tropes like elves, dwarves, and magic rings (which are a dime a dozen -- from the ring of the genie in Aladdin to the ring of the Nibelung to the ring of Gyges) are freely usable under the scÃne à faire doctrine.
However, copying the full text of a work (or an image) into the memory of an AI model probably is not covered.
I disagree. It sounds remarkably like the Google Books and Google Image Search cases, where the full text of a book or full image were dumped into a computer and saved permanently for the purpose of creating a tool that permits people to search the text of books and search for images that match a description or a query image. Those were held to be perfectly legal.
the courts have been siding against decrypting a work as fair use for a long time
First, decryption is neither here nor there. Second, I don't think courts have held that decryption isn't fair use so much as it isn't copyright infringement to begin with so fair use is inapplicable. That part of the DMCA is not about copyright, it's about anti-circumvention.
The fact that AI works can't be copyrighted makes it easy to conclude that AI generated content is nothing but the uncopyrightable derivative content of every input that went into the model.
No. Derivative works are copyrightable as a rule, and I'm not convinced that the output of these AI programs are in fact derivative works under copyright law. The reason for the AI generated works not being copyrightable is because copyrights are only vested in authors, and these things can't be authors. It's something that might be revisited if we ever create a truly self-aware AI on par with a human, like HAL 9000. We aren't at that point yet.
Controlling how copyrighted material is used is 100% what copyrights are about.
Eh, not really. The purpose of copyright isn't to control the use of works, and in fact, 'use' isn't one of the rights that comprises copyright. Copying is, distribution is, public performance and display are, preparation of derivatives is, but not mere 'use.' As long as you're not doing one of those other things, you can use a work without permission all you like.
This really is no different than me taking a book that I like and making a recording of me reading it. I am entitled to do this. I can even copyright my performance, but I can't monetize (or even share) that performance without the express permission of the original copyright holder. That's even despite the fact that there is a genuine creative act by an actual human as the written word is turned into an audio performance.
No, that would be preparing a derivative work, and potentially performing a work publicly. You aren't entitled to do it, and you probably can't get a copyright for your performance. Regardless of the fact that it would indeed be potentially creative. (It depends on how creative your reading was -- like if you're doing the voices and such. A Ben Steinian monotone would quite likely not qualify for copyright.
nor that protection from creating works that are derivative by default
I'd really recommend looking at the legal definition for what a derivative work is.
That bit isn't fair use, as it involves the entirety of the work
You can have fair uses that involve the entirety of a work, e.g. time shifting TV broadcasts onto a VCR tape for later watching, or space shifting a sound recording from a CD to an MP3 player. You can also have infringing uses that involve only selected quotations of a work, like in Harper & Row v. Nation Enterprises.
George should absolutely be able to control how his copyrighted material gets copied into an AI model. This is essentially the same right that keeps Hollywood from making a movie of his works without his permission.
I'd disagree on both points. I think it's better if he can't, and I don't think it amounts to an infringement of the derivative right. The reproduction right is the more significant one to be concerned about anyway, but I think they're good there too.
Alternatively, I suspect that George would be fine with the idea that everything generated with a model that included his copyrighted material would be deemed a derivative of his work.
That would definitely not fly, and again your ignorance of what a derivative work is in copyright is really harming your argument.
However, it is extremely unlikely that the generative AI people will be given carte blanche to include any works that they want into their models and then be able to use the output of those models however they want.
I think they have a pretty good chance of winning.
Copying works for private use infringes the reproduction right at 17 USC 106(1). There is not a general exception for private use. A specific instance of copying might fall under fair use, but just as easily might not; fair use has to be analyzed on a case-by-case basis and if you're merely copying a work for private use to avoid having to buy a copy, I would generally expect that it will not be treated as a fair use.
In practice you might not get caught, but that's a separate issue.
I agree completely. Authors can do what they want, and owe absolutely nothing to their fans. If Martin, or another popular author wants to stop work, or take a long pause, or go in a direction the fans don't like, there's really no point in complaining about it, or worse doing a Misery or something.
BUT--
It's important to recognize that fans generally aren't fans of creators, so much as they are fans of the creations. It's an important distinction.
Generally, fans just want to be entertained. If a particular author is good at doing that, great. But if they stop being good at it, whether because the author tries something unpopular, or just doesn't want to continue, or can't, that won't stop the fans from wanting their entertainment.
It remains to be seen whether the new wave of AI tools or their descendants will change the calculus underlying copyright, which is that the public, desirous of more original and derivative works, is willing to trade a little bit of its freedom to use works (which are inherently in the public domain, that being the natural order of things) by creating copyrights and vesting them in authors, to incentivize the creation of more original and derivative works, which will only be copyrighted for as little time as necessary in order to produce the greatest overall gain for the public.
The desire for entertainment will never cease, but it may be that we are moving beyond the need for authors. Which isn't to say that there won't be authors -- there always have been, even without any copyright at all -- but that someday, perhaps sooner than you think, a fan who finishes the most recent novel in a series will be able to poke a few buttons on their phone and have a brand-new novel continuing the series produced, right then. With tweaks to focus on the fan's favorite characters or plots, and with suggestions as to what story elements to address.
It's like having your very own storyteller who listens to your input and adjusts accordingly, without having to be a mighty king like Shahryar to be able to afford it.
So sure, authors don't owe fans anything, but they should be wary of the fact that fans don't owe the authors anything either. Copyright is artificial and arbitrary and intended to produce certain public benefits. If the public would prefer to go a different route, one which clearly allows fans and AI to cut the authors out of the equation altogether, that's exactly as valid an option as the system we have now.
Trying to make AI functionally illegal probably isn't the best way to deal with this. That sort of thing has never worked before.
No, but if the lawyers don't get priority why would they work on a bankruptcy case where they already know someone's not going to get paid all (or any) of what they're owed?
If the bankruptcy is simple enough, you can get by without a lawyer (though it is not necessarily the best idea, even then). But for a complicated one, you basically need them, so that's the trade-off.
I know a number of bankruptcy lawyers; they'd be perfectly happy doing something else if people never needed them. But they're not to blame for bad business practices or even just general misfortune.
Good day to avoid cops. Crawl to work.
