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[BKARTS] A Rejoinder to Mr. Morehouse



Oh how dangerous is a little knowledge...  As a "Big Corporate Lawyer" (I am actually a litigator in a "Big White Shoe Law Firm"--is that "better" or "worse"?), and as such am fairly well acquainted with the law.  

Firstly, as to Mr. Morehouse's ridiculous comment that protecting copyright beyond the life of the author is not warranted; I could do no better than Mr Siegel did in his recent post: 

>>At 67, I don't have anything but my copyrights to leave my wife and
children. That's partially the result of the decision to live and work in
remote tropical beach areas that were being developed into resorts such as
Cancun. But mainly it's because I only write what I want to write and I only
publish what I want to publish. I avoid the timely and prefer the enduring.

I'm confident that these works will not only endure but prosper long after
I'm gone. I'd be happy to think that perhaps my grandchildren might benefit
from them, too. I want to see the actual effects of the new law before
deciding that it's wrong to feel that way.<<

If Mr Morehouse does not wish his copyrights to continue after his death, he may disclaim them now or even in his will. 

As for Mr Morehouse's comment concerning my suggestion that those who do not wish to protect their work can simply not copyright it:  Perhaps I oversimplified.  It is indeed true that copyright attaches without the requirement of notice or publication (at least since the 1976 Act--and you still need notice to recover money damages for infringement) when a work is first "fixed in a tangible medium of expression."  However, that does NOT magically protect the work; a copyright holder must prosecute violators--there are no Copyright Police roaming the countryside whacking artists who copy about the head and shoulders.  Anyone who wishes to have their work freely copied can simply NOT PROSECUTE anyone who copies.  Or even easier, they may disclaim any copyright in the work.  My point should not have been that hard to figure out if one had the most basic understanding of the law.  

As for the assertion that the copyright extensions upheld in Eldridge are more problematic than the expansion of the patent laws: perhaps you should read some patent law cases before you make such bland statements as "I wish you were correct about this..." Try starting with State Street Bank for one, or perhaps Diamond v. Chakrabarty, 447 U.S. 303 (1980) (holding that life forms are patentable). 

As for Mr. Morehouse's complete and utter misunderstanding of Mazer v Stein.  Yes, it was about lamps (actually about statuettes that were part of the lamps).  However, anyone familiar with our common law system and the way our courts write opinions  (or indeed anyone who actually bothered to read the case rather than the head notes) would realize that the Court was expounding on the nature of copyright--not the nature of copyright as applied to lamps. As such it has direct relevance to books, as well as to paintings, photos or any other copyrightable work.  Really, I feel silly having to explain that point as it is so completely obvious.

As for Mr. Morehouse's poor memory of Philosophy 101:  The analogy I provided for why protection against copying was a good thing was not an example of the Fallacy of the False Alternative.  This Fallacy is best illustrated by the following example: "Today is Saturday or Sunday  Today is not Sunday.  Today must be Saturday."   This is false because it fails to recognize the other five alternatives. What other alternatives did Mr Morehouse believe I left out?  Taking the door?  The toilet? The point remains the same. 
Mr. Morehouse comes closer to the mark when he calls my argument a Straw Man Argument.  This occurs when an argument is made that overstates or exaggerates the other side.  Perhaps there is a valid argument that my "stealing the roof" analogy is overstated--however, I submit that it is not, especially if one remembers that many, many artists must live on the proceeds from the sale of their art.  Proceeds that "put a roof over their heads" and proceeds that can be diminished or lost if their art is copied. 

Regarding  Mr. Morehouse's suggestion that my explanation of the distinction between copyright and trademark law "doesn't state the case properly."  Well, Mr Morehouse, you are dead wrong.  While it does not state the case fully, as to do so would be the work of volumes (indeed it is the work of several volumes).   There have been several insightful posts concerning some of the nuances of trademark, trade dress and copyright (see, e.g., Mr. Minsky's post). However, my point was that trademark, etc. protects only indicia used to sell things or services--indeed it usually only protects them from competing products or services (That is why you have Viking Stove and Viking Pest Removal).   The use of a mark on something that does not compete, for example in a painting, or a book, generally would not violate tradmark law, especially when used in a parodic manner (although the more commercial the use, for example on t-shirts or whatnot, the more likely it may be found as infringing).  Mr Morehouse is correct, however--this area of the law is complex if you wish to produce a product that uses a parody of a mark.  It is best to check with a lawyer.  

Which brings me to perhaps my most important point. Many have bemoaned the fact that little copyright holders are powerless to defend their marks and only the big bad corporate types can do so.  Nothing could be further from the truth.  The Volunteer Lawyers for the Arts (to give just one example) is an organization that provides or places artists with lawyers who will work pro bono on their cases (not only for infringement, but also for corporate matters or what have you). In fact, many of the lawyers who do this pro bono work are the mean ol' "Big Corporate Lawyers."  If you want more information, the following site lists many of the local VLA chapters: 
http://www.starvingartistslaw.com/help/volunteer%20lawyers.htm

And here is the NY chapter: http://www.vlany.org/

In closing, I would like to say this:  Ideas are never copyrightable, no matter in what from they are described or explained. See 17 USC  102(b).  It is the author's particular original expression of description or explanation itself that is protectable. 

Regards, 

Jeff Loop

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