Re:Sherlock Holmes Is in the Public Domain, American Judge R...
by pbhjpbhj on Friday December 27, 2013 @08:03PM
(#6973405)
>If they created a new image, the Superman trademark would have applied. //
Trademarks indicate origins of goods/services. Unless they used the trademark in a way as to convince people that the video originated with DC Comics then they're supposedly fine.
It's a notional consideration but after the lapse of a copyright the "man in the street" should be expected to be aware that the copyright has lapsed and so to be able to buy previously restricted works from any company. Images adapted from a PD work then should be allowed, provided there is no effort made to use that image in an otherwise infringing way.
Of course you can be sued for anything and DC Comics would most likely enact a very expensive lawsuit - in a sane legal system however they should probably lose, especially if they were attempting to use their trademark to prevent the release of material which would have been copyright infringing before the lapse of the copyright term.
If the estate of a creator of a work can use TM law to prevent PD works from being adapated and used then that cancels the deal made in copyright between the state and the creator whereby the works have a presumption of fully entering the public domain.
[Does anyone know of any caselaw covering situations where a major element of once copyrighted - but now PD - works is also a valid trademark?]
Trademarks indicate origins of goods/services. Unless they used the trademark in a way as to convince people that the video originated with DC Comics then they're supposedly fine.
It's a notional consideration but after the lapse of a copyright the "man in the street" should be expected to be aware that the copyright has lapsed and so to be able to buy previously restricted works from any company. Images adapted from a PD work then should be allowed, provided there is no effort made to use that image in an otherwise infringing way.
Of course you can be sued for anything and DC Comics would most likely enact a very expensive lawsuit - in a sane legal system however they should probably lose, especially if they were attempting to use their trademark to prevent the release of material which would have been copyright infringing before the lapse of the copyright term.
If the estate of a creator of a work can use TM law to prevent PD works from being adapated and used then that cancels the deal made in copyright between the state and the creator whereby the works have a presumption of fully entering the public domain.
[Does anyone know of any caselaw covering situations where a major element of once copyrighted - but now PD - works is also a valid trademark?]