Right before the Man of Steel celebrates its 70th birthday, a federal court judge has ruled (.pdf) that the heirs of Superman co-creator Jerome Siegel could claim an ownership share of the character’s domestic copyright. The ruling vests in Siegel’s heirs ownership in the first Superman comic, Detective Comics’ Action Comics No. 1.

Wikipedia has informative biographies for Siegel and his partner, Joseph Shuster, while William Patry (whose work the opinion cites 14 times) provides additional analysis and insight. The case centered on whether Siegel’s estate successfully had terminated the copyright pursuant to Section 304(c).

Siegel and Shuster sold the rights to the comic 70 years ago for $130 (or $14814.32 in today’s money). In comparison, Warner Bros. collected more than $200 million in domestic box office for the 2006 film Superman Returns. This total excludes ancillary (and lucrative) licensing income from all manner of tchotchkes from T-shirts to lunch boxes.

What immediately struck us was the diligence of Siegel’s estate in pursuing this issue. We compare this to the untidy, legally chaotic, and “deplorable” condition of the James Brown estate, which owes $400,000 in taxes and needs to sell memorabilia to preserve its assets.

Michael Cieply. Ruling Gives Heirs a Share of Superman Copyright. The New York Times. March 29, 2008.

See also:
Joy Howe. James Brown’s Estate To Be Sold. WJBF-TV (Augusta, Ga.) Feb. 29, 2008.

Copycense™: Incisive IP.™

“I am not … ‘leaving the movement.’ ‘The movement’ has my loyalty as much today as ever. But I have come to believe that until a more fundamental problem is fixed, ‘the movement’ can’t succeed either.” — Lawrence Lessig.

Lessig Blog. Required Reading: The Next 10 Years. June 19, 2007.

Stanford law professor Lawrence Lessig announces his retirement from the intellectual property debate, and his focus on “corruption” as his new academic and activist core interest. Lessig has proclaimed before that he was retiring from focusing on intellectual property, and like the rapper Jay-Z and too many boxers, he did not walk away. His latest series of writings on his blog, however, suggest he is, in fact, ready to step out the door.

If he Lessig does step away, his work in and on behalf of fair intellectual property has been valuable and admirable. We’ve not always agreed with some of the initiatives for which he has advocated. For example, we’re a bit skeptical of the Creative Commons initiative because it moves copyright issues into the realm of contract law. (This is an issue we’ve discussed recently.) Instead, we think copyright should remain firmly a federal public policy debate.

We also think the litigation team Lessig lead in the Eldred v. Ashcroft case seriously depersonalized the case into a strictly legal argument that was hard to win. We have opined often that the only way federal courts are going to change their holdings in copyright cases is if the debate is less about economics and law, and more about the simple fact that people — individuals — are getting screwed. This position has a chance to build a social revolt against protectionist intellectual property legislation, and with such a revolt may come legislative and judicial change.

For example, if one examines some of the civil rights cases from a strictly legal perspective, one could argue that some decisions were inconsistent with prevailing statutory and case law at that time. Law does not occur in a societal vacuum, however, and with regards to civil rights legislation, society decided it was time to eliminate legally sanctioned discrimination that was grounded in historically inaccurate and damaging opinions on race and ethnicity. Federal courts and legislators had to change the laws or risk anarchy.

We were privileged to witness the Eldred oral arguments, and the level of constitutional argument in that room on that October day was brilliant. It also was cold, lifeless, and meaningless to the average Joe or Jane that merely wants to remix public domain works into something fun, useful, and culturally valuable. There was no outrage or risk of anarchy on the copyright term extension issue (even though a well-formulated grass roots campaign may have stoked such outrage).

And inside the courtroom, Lessig’s argument generally failed to make apparent what we’ve heard him make apparent in other venues: Disney’s manipulation of the term extension issue means that a 10-year-old girl in Iowa can’t come up with the next great animated character because Disney wants to shackle culture to stuff its wallets.

(To be fair, Lessig has conceded he made strategic errors in the Eldred litigation.)

But these issues are minor compared with the good Lessig has done and the enormous effort he has spent in trying to get it right and make things equitable. Lessig has put his energy and his money where his mouth has been, and right or wrong, we respect and thank him for that.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

Technorati Tags: CommuniK., Copycense, K. Matthew Dames

There are two kinds of interviews: interviews that go well, and interviews that are difficult. This is one that went well.

We here at Copycense have been following The Patry Copyright Blog for some time now. And why wouldn’t we? In the area of copyright, there are few that can match William Patry’s credentials. He is the author of three copyright treatises, the most recent of which is a recently released, seven-volume, nearly 6,000 page opus entitled simply Patry on Copyright.

Patry now serves as senior copyright counsel for Google, Inc., but this appointment comes after a quarter century of work in copyright law as a professor; copyright counsel to the U.S. House of Representatives; policy advisor to the Register of Copyrights; and attorney in private practice.

So when William e-mailed me earlier this year to ask, effectively, would I mention Patry on Copyright in Copycense, my rather incredulous response was: “You are kidding me, right?” To me, that was the equivalent of Wynton Marsalis asking a musician if he could make time to sit in with the Lincoln Center Jazz Orchestra.

What follows is a portion of an hour-long interview in which Patry discusses his new treatise, his position at Google; the Google Book Search litigation; and why he thinks copyright terms last too long.

Editor’s Note: Over the next few weeks, additional portions of this interview will be made available on Copycense both in text and as the publication’s inaugural set of podcasts. Most of this interview also will be published in the June issue of Searcher magazine.

K. Matthew Dames (Copycense): I did want to ask you your opinion about a case that Google is not involved in, but is continuation of the term extension issue and gets into the public domain area. This is the Kahle v. Gonzales case that was decided at the end of January. Do you think that case was correctly decided, and what is the continuing effect on the public domain based upon this litigation?

William Patry: I heard the oral argument in the case, and I’ve read the opinion. The issue that the plaintiffs were advancing is “What is the correct standard of review?” That’s what the [Ninth Circuit] Court of Appeals was deciding, at least at plaintiff’s request. [The plaintiffs] wanted to go back to the trial court and have legislation reviewed under a particular First Amendment standard.

And the Court of Appeals said, “Well, we’re not sure that’s not the right standard because this isn’t a First Amendment case. This is a copyright case. So, we’ll take you on the merits and say ‘The argument that you made is the same argument that was made in the Eldred [case], and rejected.” Although, [the issue] wasn’t exactly the same because the statute was slightly different, and there were different issues [in Eldred v. Ashcroft] (.pdf).

In terms of a narrow reading of that as turning on either what’s the appropriate standard of review for legislation, or whether the Supreme Court had already taken a look at that, the [Ninth] Circuit’s view was that [the First Amendment argument] wasn’t the appropriate standard of review, but even if it is, we’re going to say that the Supreme Court has already addressed this. So, you lose: you don’t get to make your arguments [at the lower, trial court]

From a policy standpoint, I think the duration of copyright is way too long. Whether “life plus 50 [years]” was correct or not I think can only be answered by taking into account what we got internationally. There was never an argument that “life plus 50” was required to give adequate incentive; “life plus 50” had been the standard in the Berne Convention for some period of time, and the idea of shifting to that in the [Copyright Act of 1976] was … because it benefited us overseas. If I had the ability to write the copyright laws myself, I would probably make the term life of the author and that’s it. I think the [current] term is way too long from a policy standpoint.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

Technorati Tags: Copycense, Copycense Conversations, copyright, K. Matthew Dames, William Patry

“Raise your hand if you know that Google is being sued over its Google Book Search project.

“Of course, you know about this – everyone knows about this. Google’s announced in December 2004 that it would partner with several of the world’s preeminent research libraries to make digital copies of their collections and allow the text of those digital copies to be searched online. That announcement was so influential that it instantly provided legitimacy to digitization programs the world over in a way that thousands of information professionals could not.

“The announcement also ruffled the feathers of select groups of publishers and authors. Some of them ended up suing Google for copyright infringement in a New York federal court. These cases are pending.

“The Google Book Search (“GBS”) litigation has captured the fancy of information professionals nationwide. And as far as legal developments go in the information profession, the GBS litigation – with its high-profile, “Do No Evil” defendant fighting the comparatively less well-regarded publishing industry, and theories of fair use dancing around lawyers’ heads – is the sexiest legal issue out there right now.

“There are, however, two other issues that greatly affect information professionals as equally as the GBS litigation. Both of these issues – orphan works and Section 108 – have been under review and consideration from various groups for most of the last calendar year. Both issues likely will come to some resolution later this year. And like the GBS litigation, both issues will have a profound influence over the way information professionals use, copy, and access information long after this year’s initial determinations are settled into law or policy.”

A Searcher exclusive.

K. Matthew Dames. “Beyond Google: The Importance of Orphan Works and Section 108 Reform to Information Professionals.” Searcher. September 2006. p. 21.

CopyCense™: Code & Content.™ A venture of Seso Group LLC.

Technorati Tags: CopyCense, copyright, K. Matthew Dames

“Friday was the day that Merck — and Pfizer — have long dreaded.

Last week, Merck’s cholesterol-lowering drug Zocor lost its United States patent protection, becoming the largest-selling drug yet to be opened to cheap generic competition.

That change will cost Merck billions of dollars a year. But it could be nearly as damaging to Pfizer, whose rival cholesterol drug, Lipitor, is the world’s most popular medicine, with global sales last year of $12 billion. Now insurers are hoping to convince patients and doctors that cheap clones of Zocor will make full-priced Lipitor an unnecessary luxury.

Alex Berenson. Merck Loses Protection for Patent on Zocor. The New York Times. June 23, 2006.

Related Stories & Documents:

• Lisa Rapaport and Angela Zimm. Merck Prices Zocor Below Generic. WashingtonPost.com. June 23, 2006.
• National Public Radio. Merck to Drop Price as Zocor Patent Lapses. June 23, 3006.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

“Two leading research institutions haven issued library cards to Microsoft so the software giant and search up-and-comer can scan their collections.

“The University of California and the University of Toronto libraries have agreed to lend their collections of out-of-copyright material held in trust. In concert with the Open Content Alliance, Microsoft will scan and index the materials for use in its Windows Live Book Search, according to a Microsoft statement issued last week.

“Like Google Book Search and Amazon.com’s Look Inside feature, Windows Live Book Search is being designed to enable full-text searches of books. The Microsoft project, however, will be built slightly differently than Google Book Search.”

Candace Lombardi. U.C. System Signs On To Microsoft Book-Scan Project. News.com. June 9, 2006.

Related Stories & Documents:

• Microsoft Corporation. Microsoft to Collaborate With University of California and University of Toronto Libraries for Windows Live Book Search. (Press Release) June 8, 2006.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

“After months of debate and negotiation, a bill on orphan works has been introduced in Congress. Photography groups continue to oppose the bill, but say it is not as bad as they feared.

“The Orphan Works Act of 2006 (H.R. 5439) (.pdf) is based on a recommendation from the U.S. Copyright Office, which photography groups decried as a dangerous erosion of copyright law. But the bill also makes some concessions to rights owners, including delaying the effective date of the law until 2008 and ordering the Copyright Office to put more information online to help people find copyright holders.

“The bill was introduced Tuesday by Rep. Lamar Smith (R-Texas) and will be reviewed Wednesday at a meeting of the House Subcommittee on Courts, the Internet, and Intellectual Property, which Smith chairs.”

Daryl Lang. Congress To Consider Softer Version of Orphan Works Bill. PDN Online. May 23, 2006.

Related Stories & Documents:

The Patry Copyright Blog. Orphan Works. May 23, 2006.

Public Knowledge. Orphan Works Bill Introduced. May 23, 2006.

William Jackson. Homes for Copyright Orphans. GCN. May 1, 2006.

American Society of Media Photographer. Status of the Orphan Works proposal.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.