> For works first published on or after March 1, 1989, use of the copyright notice is optional. Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published from January 1, 1978, to February 28, 1989, could have resulted in the loss of copyright protection if corrective steps were not taken within a certain amount of time. Works published before January 1, 1978, are governed by the 1909 Copyright Act. Under that law, if a work was published under the copyright owner's authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States.
This March 1 1989 date is when the adoption of the Berne Convention took effect in the US, the Berne Convention being what brings the notion that registration should not be required in order to have legal copyright protections. European artists had that protection for ~100 years at that point. Most countries in the world have adopted the Berne Convention, though I learned fairly recently here on HN that the US is still leaving out a few important bits like the right to sue for statutory damages unless copyrights are registered.
You can sue for damages if you don't have the copyright registered in the US. If you have the copyright registered you can sue for triple damages. (according to my mandatory company copyright training, a real lawyer is welcome to correct me)
Edit: I just remembered that you cannot sue if your copyright is not registered - but you don't have to register until just before you sue. Triple damages applies to anything that happens after the copyright is registered, but that is the only difference it makes.
I think your training may have confused copyrights, patents, and trademarks.
Patent law allows triple damages in the case of willful infringement, and trademark allows triple damages in the case of a counterfeit mark that the infringer knew was counterfeit.
Copyright does have some things that can increase a damage award but there is no real triple damages mechanism.
The plaintiff in copyright gets a choice. They can ask for either:
• The actual damages plus the profits that the infringer made from the infringement. The latter is only to the extent that the infringer's profits exceeded the actual damages.
E.g., if you lost $100k due to infringement and the infringer made $70k your damages would be $100k. But if the infringer made $120k your damages would be $120k (the $100k you lost plus the $20k the infringer made over $100k).
• Statutory damages. It is often very hard to figure out actual damages so the law allows an alternative. If you elect statutory damages the damages range from $750 to $30000 per work infringed. The amount is determined by the judge or jury.
They can be decreased to as low as $200 if the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright".
They can be increase up to $150000 if the infringement is found to be willful. This is the closest thing copyright as to triple damages.
The way registration affects all of this is:
• You have to register before filing a copyright lawsuit. There are some exceptions such as when a foreign copyright owner wants to sue over a work not published in the US but infringed in the US, due to Berne Convention requirements but we can ignore those here.
• You can only collect statutory damages for infringement that commences after registration (unless the registration is within 3 months of first publication).
• You can collect actual damages and infringer profits from infringement before registration.
Did the distributor really have sufficient ownership of the movie to release a minor altered version into the public domain?
I remember a long time ago a language study startup called smart.fm released their material on RSS under a copy left license. Problem was that they didn’t mean to give it away, but worse, they didn’t have the license to relicense the material like that.
I kinda wonder where that puts redistribution of that material.
> Did the distributor really have sufficient ownership of the movie to release a minor altered version into the public domain?
Probably yes. The way movies are financed is quite the byzantine joy ride if you want to look into it. With random tax incentives depending on where you make it. To finance groups that get control of entire regions. There are quite a large number of videos from independent filmmakers on what is going on. You hear things like 'Disney lost XYZ on a movie'. More than likely they lost someone else's money making sure they recoup first. Like for example the OG star wars has yet to recoup. Probably for some segments of the corporate structure that was created to make that movie that is probably true. Hollywood accounting is a huge mess. So yeah he probably signed off particular distribution rights to get the money to make/distribute the thing.
Many TV show pilots probably fall into the same issue too. I have not dug into it too much but the original pilot of star trek did not have one until a re-release decades later with an obvious digital watermark.
I guess stuff like this would have already been thrashed out at the time, but it strikes me that if a mistake by a third party could invalidate copyright, it'd have been trivial to end the copyright on anything by releasing an unauthorised version without a copyright notice.
I guess it's complicated because the first release with this title was absent the copyright notice, but the article also says that prints existed with the previous title and a copyright notice, so if they were distributed at all, it'd seem to be a slam dunk that it'd be covered by copyright on the original title and the retitled copy without copyright notices was infringing.
It isn't the case that a third party mistake can invalidate copyright. But if a third party does so & other groups start treating it as public domain it is on the actual rightsholder to prove they still hold the copyright.
In the case of a self published book, it's pretty obvious. In the case a movie production or otherwise, it gets difficult really fast. Throw in some corporate mergers, acquisitions, & bankruptcies and now you're looking at paying a small team of legal professionals to do research to construct a paper trail for ownership. If the work in question is valuable, obviously it gets done.
In the modern era there is a basically endless stream of video games from a 2-3 decades back where the ownership is completely unclear. The actual video game release rights might be held by one shell company, the video game source code could be held by another group (or even the original author, depending on how lazy people were), and the assets themselves might be held by another group if it was a "branded" or similar content.
It wasn’t a relicense, the copyright was never validly filed (date was missing), so the copyright was never registered. Only registered copyrights can be enforced in the US. No registration, no enforcement rights. Or at least that’s my layman’s understanding, happy to be corrected.
> This error occurred after the film's title was changed from its original moniker Night of the Flesh Eaters. Prints with that title contained the copyright notice, but when new prints were created using the title Night of the Living Dead, the copyright notice was forgotten.
This begs the question: if the original movie was copyrighted, how does releasing the same movie with a different title make the new re-release considered a new (not-yet-copyrighted) work? I thought the copyright protection of the original would extend to the renamed version, since they're 99.99% the same. Theoretically, does changing even one frame necessitate a new copyright?
Remember we need to talk about law as it existed back when this happened not the law today. Back then you didn't get copyright protection unless you registered with the copyright office (and a few other things that I'm not quite sure of - none relevant to the law today). So the copyright was never registered, likely because the distributor was expected to register it and they failed to do their job. There might be a lawsuit against the distributor for breach of contract, but it wouldn't be a copyright lawsuit.
Today things are much easier, if you create something it is copyright. If you want to sue you need to register, but you can register at anytime. If you register you can sue for triple damages for anything that happens after you register, but you can still get damages for things that happened before your register. (The above is my understanding of the law, but I'm not a lawyer)
The copyright rules have changed. Registration and a proper notice was required when this film was published.
Now, fixing a creative work in a tangible medium is all that's required. When does the copyright expire? Nobody will know, because there's no year of publication listed, and no author listed to find out when they die. (Even if there is an author listed by name, maybe it was me; maybe it was the Pulitzer Prize winning author)
99.9999999% of software written is not published, it’s covered by trade secret law. Copyright only applies to published works. Look into what happens legally when source code is leaked and published.
> Night of the Living Dead's copyright snafu ended up costing him untold amounts of money in both the short and long term.
This has strong vibes of “If only Linus Torvalds had charged for Linux, he would have been a rich man today.”. It does not work that way.
> Somewhat ironically though, it's Night of the Living Dead's freely available nature that helped it become the revered classic it is today, as easy access and constant TV airings ensured that more and more people saw the film.
It’s not “ironic”, it’s completely expected. If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best.
> If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best.
That's a very ungenerous take. The film is very good and was revolutionary for it's time. Check out other horror films from the same era and the tone is completely different. Night of the Living Dead changed what horror films could be.
And there's plenty of old black and white movies still in copyright that are highly regarded as classics so I don't know what that has to do with anything.
I share your perspective; my guess is if it was copyrighted it probably would have had the same status. My guess is it would have been distributed relatively cheaply with the same outcome.
However, I also think it's reasonable to posit it might not have attained the same status had it not gone out of copyright. Easy access can really affect awareness and buzz around films, especially in certain genres like horror.
Horror films were already shifting in tone by 1968. Psycho was a 1960 release, for example, and The Birds was released in 1963. Carnival of Souls has a similar aesthetic as Night of the Living Dead and was released in 1962.
The movie invented the zombie genre as we know it today, was made by George Romero, which is a credential in an of itself, and Duane Jones' performance as Ben would stand out today almost as much as it did back then. These points, along with the film being poignant and entertaining as hell would ensure that generation after generation would would keep coming back. Remember, lots of films are out of copyright. Not a lot of such films made as much money or have the staying power as Night of the Living Dead.
On top of this, genre films in general, and horror specifically, if anything, have rabid fans that go out of their way to watch movies because of their genre, regardless of accessibility or buzz. Again, George Romero's involvement alone would make sure that even a passing fan of horror (or budding cinephiles) would seek it out.
> Night of the Living Dead changed what horror films could be.
And this would indeed merit the film a historical footnote. But it would be virtually unavailable, and nobody in a position to make it available would take the chance on an ancient black-and-white film. And it would therefore in all likelihood languish in obscurity.
This is exactly the same way that It’s A Wonderful Life became a much-revered Christmas classic. If the copyright hadn’t expired allowing monthlong TV marathons, it would have faded into obscurity. How many people remember The Best Years of Our Lives, which beat it out for multiple Oscars in 1947?
What is the middle ground? Everybody knows that "free" has a huge appeal. But so does low cost, which arguably vastly reduced piracy for older movies and music. It seems that content providers found ways to unlock content by paying creators fractions of a cent. It would be cool if there was a standard way to acquire license for older content for very little without dealing with the copyright headaches.
Copyrighted and then falls into the public domain after 14 years. Plenty of time to monetize, then benefits the public after a relatively short people of time.
Or you get 10-14 years for free and after that you pay for it and it gets more and more expensive the older it is. Disney can keep their mouse but after 90 years its 100M. 91? 105M. Etc. If it’s not worth the price, let it go.
This makes sense from a purely economic perspective (if you scale the fee exponentially). It does not make sense from a "promote the arts" standpoint. Derivative works are a huge portion of human expression, and allowing the most valuable/influential ideas to be kept from the public would continue (albeit to a lesser degree) the creative harm of the current copyright regime.
It shouldn't be completely free for the initial period. Require a nominal fee (and registration) to pay for escrow/archive storage so it can be properly released into the public domain when copyright expires.
Registration basically benefits large corporations. There are good reasons why a lot of individual authors oppose orphan works legislation. Disney isn't going to forget or screw up copyright registration. You or your kids might.
Totally in favor of shorter copyright terms though even where there are edge cases where longer terms seemingly have made sense. (In terms of promoting progress of the arts, etc. or whatever the language is, I'm not sure that usually fairly small inheritances qualify.)
Registration benefits the general public, who are the meant to be the beneficiaries of the whole scheme in the first place. The entire purpose is to generate a larger wealth of public domain material. Registration and escrow ensures this happens.
What if copyright expired in 18 months? Same thing.
14 years made sense when there were wooden printing presses and the fastest communication was a rider and a horse carrying a handwritten letter sealed in wax. They arguably need less time to monetize today than they did back then. Years-long (or, as it is now decades-long and centuries-long) periods are about giving someone the right to tax culture for many generations, not about incentivizing creativity. It undermines the public domain.
18 months runs into the problem of nobody being willing to buy something on month 17… I’d be tempted never to pay for another movie again and I suspect a large fraction of people would react similarly.
5 years is probably at the lower end of actually extracting a large fraction of total value on most works and yet not hampering cultural remixes.
>18 months runs into the problem of nobody being willing to buy something on month 17
Well, that's one way to look at it. The other way is that it merely limits how much it can be sold for on month 17. When I was in high school, one of the big malls had a dollar-a-ticket movie theater. People would pay for things that are more easily/cheaply available soon, they just won't pay the premiums demanded now.
But there's a third way to look at it... the idea that they never owned the intellectual property anyway. It always belonged to the public domain, they had a temporary lease. And in that view, the idea that they'd have trouble extracting maximum dollars from it on the day before the lease ends is absurd. No one cares, nor should they care.
>I’d be tempted never to pay for another movie again a
Why aren't you tempted for that now? I gave in to that temptation, and it is the superior experience. I can do all the streaming I need, to any of my devices (or my friends' devices) anywhere in the world. Everything on demand, from every premium channel and streaming service, in the highest resolution. Every minute or every day. I read comments here and elsewhere about people complaining how they have to cancel Netflix, the show's over, but they have to resubscribe to Disney because the new show's on, etc. It's all bizarre. The stuff you guys are willing to put up with is mind-boggling.
>5 years is probably at the lower end of actually extracting a large fraction of total value
You should be concerned with whether they can extract their costs, plus modest profit. Not "value". The magnitude of the grift in the industry that gave us the term "Hollywood accounting" is beyond human imagination or capacity to comprehend. Stop enabling that.
> Why aren't you tempted for that now? I gave in to that temptation, and it is the superior experience.
Ethics
> You should be concerned with whether they can extract their costs, plus modest profit.
The creative industry isn’t wildly profitable. Slash the amount of money movies/books/etc make on average and you dramatically reduce the amount of movies/books/etc published.
After all we could totally remove copyright, but then you don’t get leech off the fruits of other people’s labor if they never preform that labor.
Producing books without a profit motive requires some other means to support the vast time investment. Thus robbing the world of great works from those lesser creatures who still need to work for a living.
The only loss is competition drowning out the works of well off but talentless people. We’ll get vanity projects either way, what we lose is however irreplaceable.
I've some direct exposure to this in my role of keeping a visually-deprived friend in books, going through a very large national library's collection of 300k+ audiobooks. Their tastes tend to run through mid-20th-century literary works, largely European authors. We've at least sampled some 2k--4k titles (it's difficult to get a precise count through the tools I'm using though I think I might be able to squeeze that out).
I've had to get immensely creative with searches (something I've many decades of experience with myself), and trust me, lists of recognised literary awards have been squeezed for all they're worth. There's simply little published since 1970 that's of remote interest.
I'll allow that some of that is due to frustratingly narrow tastes. But seeing articles such as I've linked above rather reinforces my view.
There is a lot of popular and some mid-list work. But Great Fiction? If it's being produced, it's also getting buried by sludge.
The big five are hardly the only purveyors of for profit works.
Go back through any list of the great works and you’ll find a great deal of populist authors. Shakespeare, Dickens, Herman Melville, etc were producing the exact kinds of works you’re looking down on.
Perhaps something fundamentally changed, but it seems more likely bias is talking here.
William Shakespeare (c. 23 April 1564 – 23 April 1616) predates the first modern copyright law, the Statute of Anne (1710), by roughly a century. His income came from performances, that is, asses in seats, not book sales. His posthumous fame came in large part from the fact that those published plays were free from copyright encumberance and could be performed or published without licence fee.
Dickens pioneered the model of serial publication on which other authors of his time (notably Tolstoy) made much comment.
You've failed to mention Mark Twain (Samuel Clemens), who was constantly in debt, damned near killed himself with one of his two possessions (a revolver, the other being a nickel), broke and unemployed in San Francisco. His relative financial flush later in life was largely due to his father-in-law's support. And asses-in-seats on the lecture circuit.
Melville, like many other authors (F. Scott Fitzgerald of Gatsby fame comes to mind) saw a greatly-increased fame after his death, with Moby Dick becoming reestablished on the centennial of Melville's birth, some 28 years after his death. Melville worked during his life as a clerk, sailor, and farmer. His writing career met with very limited financial success. His works were great, no doubt, his income failed to measure up, and could hardly be considered his chief incentive. Later in life, like Twain, Melville benefitted by inheritance and lectures.
The point you seemed to have missed was each of them were populist authors.. To look down on populist writing is to misunderstand western literature.
Further we never got to read a book by Shakespeare because of the lack of copyright at the time. Imagine a world where he had more time to devote to such things.
Similarly Dickens was hampered by being paid by the word.
Melville on the other hand wrote Moby-Dick through the commercial success of less famous works. What happened later in life isn’t particularly relevant here, what’s generally considered the greatest work of western literature was completely dependent on someone being paid for their writing. It wasn’t some breakout novel from a new writer it’s the culmination of serious refinement of his talents that takes not just inspiration and life experience but time.
There are a lot of profits in the industry, but as I think you're alluding to, not a great proportion of those profits go to the creators.
I want a model where I can compensate artists and creators (up to and including producers) equally to (or better than) the distribution and marketing arms. This can be cobbled together in some cases, but not simply.
> not a great proportion of those profits go to the creators
That’s often stated but misses the underlying reality is that the money is mostly spent on things which increase revenue. An unadvertised movie means less people pay for tickets, remove it and there’s less to go to everyone else.
> equally to (or better than) the distribution and marketing arms.
Obviously there’s fat to be cut from these industries but being a self published author isn’t some shortcut to success and would become even harder with very short copyright terms.
Some authors are finding success on Patreon etc, but it further limits the talent pool by requiring more than just being a good writer.
You're right. Marketing is expensive. Distribution is cheap these days, but often the two functions are colocated.
I would even posit that many popular creative works are commercially worthless, absent the expensive marketing. And in some cases, the marketing comes first and the creative work is basically an effort to fulfill the marketing spec. Implicitly or explicitly.
But like venture capital, the entertainment industry is sustained by the huge successes, and they are motivated to overspend on every attempt. This works in VC (for founders at least) but it doesn't work well for artists.
I don't have a solution, but I wish for something that would bypass the go-big-or-go-home model while fostering organic success. (And I'm thinking of the music industry primarily. Movies and books occupy different spots on the continuum, though some of the same issues do apply.)
It takes more than 18 months for many good works to get through all the editing processes. You can tell when publishers skip on that time as the quality is worse.
Piracy is only bad if you want to earn money for each eye watching a minute of a movie. What we're doing right now is piracy, no one pays anyone anything for content
The question shouldn't be about how much it costs but why do things cost anything in the beginning, and if they have to what is the amount a specific piece should be retributed for its contribution to society minus how the non-zero cost impacts society.
AIs are being let off the hook with their massive copyright infringement but when a movie being open directly benefits everyone suddenly that's a problem.
>Piracy is only bad if you want to earn money for each eye watching a minute of a movie. What we're doing right now is piracy, no one pays anyone anything for content
This is utterly nonsensical. You've invented a new definition of piracy to try to claim that streaming services are piracy.
Specifically at this point:
>no one pays anyone anything for content
This is literally factually incorrect. Netflix pays billions per year to copyright holders. Just because it's indirect payment in the form of a subscription doesn't mean you're not paying for the right to view content.
The middle ground could be a lot of different things. One might be a reformed copyright system.
The economist I know of who calculated a socially optimal copyright duration, Rufus Pollock, came up with an estimate of 20 something years.
This makes sense from the point of view of finance because the NPV of extra years beyond this is very low. To put it in qualitative terms, no one is thinking about their grandchildren's pensions when they decide to create a work.
Personally I would also have different durations and rules for different types of work: a book, a video, and a piece of software are very different works and need diffferent incentives
The Best Years of Our Lives is a genuine classic. Complex narrative, brilliant cinematography and performances. It is a much more difficult film than It's A Wonderful Life, and absolutely worth watching.
> This has strong vibes of “If only Linus Torvalds had charged for Linux, he would have been a rich man today.”. It does not work that way.
Not at all similar. Linus explicitly made his software free. Romero didn't _intentionally_ exclude the copyright notice, and had no explicit intention of making it free.
> It’s not “ironic”, it’s completely expected. If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best.
"completely expected" is quite a stretch. Simply making it public domain wouldn't be enough. It still has to be a good movie. I'm sure there are countless other public domain black-and-white movies that no one has ever heard of.
We had (many) version of Unix that were superior to Linux for a very long time. We can reasonable debate what Sun (in particular) should have done differently with SunOS/Solaris and Java in particular, but a for-pay-only version of Linux would just have been a fairly mediocre Unix variant.
Note that it was released in 1968. The law changed since then. From https://en.wikipedia.org/wiki/Copyright_notice
> For works first published on or after March 1, 1989, use of the copyright notice is optional. Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published from January 1, 1978, to February 28, 1989, could have resulted in the loss of copyright protection if corrective steps were not taken within a certain amount of time. Works published before January 1, 1978, are governed by the 1909 Copyright Act. Under that law, if a work was published under the copyright owner's authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States.
This March 1 1989 date is when the adoption of the Berne Convention took effect in the US, the Berne Convention being what brings the notion that registration should not be required in order to have legal copyright protections. European artists had that protection for ~100 years at that point. Most countries in the world have adopted the Berne Convention, though I learned fairly recently here on HN that the US is still leaving out a few important bits like the right to sue for statutory damages unless copyrights are registered.
You can sue for damages if you don't have the copyright registered in the US. If you have the copyright registered you can sue for triple damages. (according to my mandatory company copyright training, a real lawyer is welcome to correct me)
Edit: I just remembered that you cannot sue if your copyright is not registered - but you don't have to register until just before you sue. Triple damages applies to anything that happens after the copyright is registered, but that is the only difference it makes.
I think your training may have confused copyrights, patents, and trademarks.
Patent law allows triple damages in the case of willful infringement, and trademark allows triple damages in the case of a counterfeit mark that the infringer knew was counterfeit.
Copyright does have some things that can increase a damage award but there is no real triple damages mechanism.
The plaintiff in copyright gets a choice. They can ask for either:
• The actual damages plus the profits that the infringer made from the infringement. The latter is only to the extent that the infringer's profits exceeded the actual damages.
E.g., if you lost $100k due to infringement and the infringer made $70k your damages would be $100k. But if the infringer made $120k your damages would be $120k (the $100k you lost plus the $20k the infringer made over $100k).
• Statutory damages. It is often very hard to figure out actual damages so the law allows an alternative. If you elect statutory damages the damages range from $750 to $30000 per work infringed. The amount is determined by the judge or jury.
They can be decreased to as low as $200 if the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright".
They can be increase up to $150000 if the infringement is found to be willful. This is the closest thing copyright as to triple damages.
The way registration affects all of this is:
• You have to register before filing a copyright lawsuit. There are some exceptions such as when a foreign copyright owner wants to sue over a work not published in the US but infringed in the US, due to Berne Convention requirements but we can ignore those here.
• You can only collect statutory damages for infringement that commences after registration (unless the registration is within 3 months of first publication).
• You can collect actual damages and infringer profits from infringement before registration.
The same thing happened to the 1963 movie "Charade" (with Cary Grant and Audrey Hepburn): https://en.wikipedia.org/wiki/Charade_(1963_film)#Public-dom...
> an unfortunate error accidentally made it public domain
Never have I been so torn on my opinion of whether or not this was truly “unfortunate”.
It’s wild that copyright lasts this long (life of author + 70 years after death)
Did the distributor really have sufficient ownership of the movie to release a minor altered version into the public domain?
I remember a long time ago a language study startup called smart.fm released their material on RSS under a copy left license. Problem was that they didn’t mean to give it away, but worse, they didn’t have the license to relicense the material like that.
I kinda wonder where that puts redistribution of that material.
> Did the distributor really have sufficient ownership of the movie to release a minor altered version into the public domain?
Probably yes. The way movies are financed is quite the byzantine joy ride if you want to look into it. With random tax incentives depending on where you make it. To finance groups that get control of entire regions. There are quite a large number of videos from independent filmmakers on what is going on. You hear things like 'Disney lost XYZ on a movie'. More than likely they lost someone else's money making sure they recoup first. Like for example the OG star wars has yet to recoup. Probably for some segments of the corporate structure that was created to make that movie that is probably true. Hollywood accounting is a huge mess. So yeah he probably signed off particular distribution rights to get the money to make/distribute the thing.
Many TV show pilots probably fall into the same issue too. I have not dug into it too much but the original pilot of star trek did not have one until a re-release decades later with an obvious digital watermark.
I guess stuff like this would have already been thrashed out at the time, but it strikes me that if a mistake by a third party could invalidate copyright, it'd have been trivial to end the copyright on anything by releasing an unauthorised version without a copyright notice.
I guess it's complicated because the first release with this title was absent the copyright notice, but the article also says that prints existed with the previous title and a copyright notice, so if they were distributed at all, it'd seem to be a slam dunk that it'd be covered by copyright on the original title and the retitled copy without copyright notices was infringing.
It isn't the case that a third party mistake can invalidate copyright. But if a third party does so & other groups start treating it as public domain it is on the actual rightsholder to prove they still hold the copyright.
In the case of a self published book, it's pretty obvious. In the case a movie production or otherwise, it gets difficult really fast. Throw in some corporate mergers, acquisitions, & bankruptcies and now you're looking at paying a small team of legal professionals to do research to construct a paper trail for ownership. If the work in question is valuable, obviously it gets done.
In the modern era there is a basically endless stream of video games from a 2-3 decades back where the ownership is completely unclear. The actual video game release rights might be held by one shell company, the video game source code could be held by another group (or even the original author, depending on how lazy people were), and the assets themselves might be held by another group if it was a "branded" or similar content.
It wasn’t a relicense, the copyright was never validly filed (date was missing), so the copyright was never registered. Only registered copyrights can be enforced in the US. No registration, no enforcement rights. Or at least that’s my layman’s understanding, happy to be corrected.
> This error occurred after the film's title was changed from its original moniker Night of the Flesh Eaters. Prints with that title contained the copyright notice, but when new prints were created using the title Night of the Living Dead, the copyright notice was forgotten.
This begs the question: if the original movie was copyrighted, how does releasing the same movie with a different title make the new re-release considered a new (not-yet-copyrighted) work? I thought the copyright protection of the original would extend to the renamed version, since they're 99.99% the same. Theoretically, does changing even one frame necessitate a new copyright?
Remember we need to talk about law as it existed back when this happened not the law today. Back then you didn't get copyright protection unless you registered with the copyright office (and a few other things that I'm not quite sure of - none relevant to the law today). So the copyright was never registered, likely because the distributor was expected to register it and they failed to do their job. There might be a lawsuit against the distributor for breach of contract, but it wouldn't be a copyright lawsuit.
Today things are much easier, if you create something it is copyright. If you want to sue you need to register, but you can register at anytime. If you register you can sue for triple damages for anything that happens after you register, but you can still get damages for things that happened before your register. (The above is my understanding of the law, but I'm not a lawyer)
This is not the case. If registration were required in the US, 99.999999% of software ever written would be effectively public domain.
The copyright rules have changed. Registration and a proper notice was required when this film was published.
Now, fixing a creative work in a tangible medium is all that's required. When does the copyright expire? Nobody will know, because there's no year of publication listed, and no author listed to find out when they die. (Even if there is an author listed by name, maybe it was me; maybe it was the Pulitzer Prize winning author)
99.9999999% of software written is not published, it’s covered by trade secret law. Copyright only applies to published works. Look into what happens legally when source code is leaked and published.
its covered by trade secret and copyright.
Software can simultaneously be covered by copyright, trade secret and patents. The patents have to disclose some info, of course.
Even when distributed you can distribute just the binary, and keep the source a trade secret.
> Night of the Living Dead's copyright snafu ended up costing him untold amounts of money in both the short and long term.
This has strong vibes of “If only Linus Torvalds had charged for Linux, he would have been a rich man today.”. It does not work that way.
> Somewhat ironically though, it's Night of the Living Dead's freely available nature that helped it become the revered classic it is today, as easy access and constant TV airings ensured that more and more people saw the film.
It’s not “ironic”, it’s completely expected. If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best.
> If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best.
That's a very ungenerous take. The film is very good and was revolutionary for it's time. Check out other horror films from the same era and the tone is completely different. Night of the Living Dead changed what horror films could be.
And there's plenty of old black and white movies still in copyright that are highly regarded as classics so I don't know what that has to do with anything.
I share your perspective; my guess is if it was copyrighted it probably would have had the same status. My guess is it would have been distributed relatively cheaply with the same outcome.
However, I also think it's reasonable to posit it might not have attained the same status had it not gone out of copyright. Easy access can really affect awareness and buzz around films, especially in certain genres like horror.
Horror films were already shifting in tone by 1968. Psycho was a 1960 release, for example, and The Birds was released in 1963. Carnival of Souls has a similar aesthetic as Night of the Living Dead and was released in 1962.
The movie invented the zombie genre as we know it today, was made by George Romero, which is a credential in an of itself, and Duane Jones' performance as Ben would stand out today almost as much as it did back then. These points, along with the film being poignant and entertaining as hell would ensure that generation after generation would would keep coming back. Remember, lots of films are out of copyright. Not a lot of such films made as much money or have the staying power as Night of the Living Dead.
On top of this, genre films in general, and horror specifically, if anything, have rabid fans that go out of their way to watch movies because of their genre, regardless of accessibility or buzz. Again, George Romero's involvement alone would make sure that even a passing fan of horror (or budding cinephiles) would seek it out.
> Night of the Living Dead changed what horror films could be.
And this would indeed merit the film a historical footnote. But it would be virtually unavailable, and nobody in a position to make it available would take the chance on an ancient black-and-white film. And it would therefore in all likelihood languish in obscurity.
This is exactly the same way that It’s A Wonderful Life became a much-revered Christmas classic. If the copyright hadn’t expired allowing monthlong TV marathons, it would have faded into obscurity. How many people remember The Best Years of Our Lives, which beat it out for multiple Oscars in 1947?
What is the middle ground? Everybody knows that "free" has a huge appeal. But so does low cost, which arguably vastly reduced piracy for older movies and music. It seems that content providers found ways to unlock content by paying creators fractions of a cent. It would be cool if there was a standard way to acquire license for older content for very little without dealing with the copyright headaches.
Copyrighted and then falls into the public domain after 14 years. Plenty of time to monetize, then benefits the public after a relatively short people of time.
Or you get 10-14 years for free and after that you pay for it and it gets more and more expensive the older it is. Disney can keep their mouse but after 90 years its 100M. 91? 105M. Etc. If it’s not worth the price, let it go.
This makes sense from a purely economic perspective (if you scale the fee exponentially). It does not make sense from a "promote the arts" standpoint. Derivative works are a huge portion of human expression, and allowing the most valuable/influential ideas to be kept from the public would continue (albeit to a lesser degree) the creative harm of the current copyright regime.
Giving large companies, but not the average Joe, the ability to retain copyright defeats the purpose of copyright being for artists.
Copyright has been about corporations, not artists, for a long time.
> Copyright has been about corporations, not artists, for a long time.
That doesn't mean that we should lean into it.
It shouldn't be completely free for the initial period. Require a nominal fee (and registration) to pay for escrow/archive storage so it can be properly released into the public domain when copyright expires.
Registration basically benefits large corporations. There are good reasons why a lot of individual authors oppose orphan works legislation. Disney isn't going to forget or screw up copyright registration. You or your kids might.
Totally in favor of shorter copyright terms though even where there are edge cases where longer terms seemingly have made sense. (In terms of promoting progress of the arts, etc. or whatever the language is, I'm not sure that usually fairly small inheritances qualify.)
Registration benefits the general public, who are the meant to be the beneficiaries of the whole scheme in the first place. The entire purpose is to generate a larger wealth of public domain material. Registration and escrow ensures this happens.
elevates*
Language has meaning, and the puplic domain is a better situation for society. It is more interesting to say it ascended
What if copyright expired in 18 months? Same thing.
14 years made sense when there were wooden printing presses and the fastest communication was a rider and a horse carrying a handwritten letter sealed in wax. They arguably need less time to monetize today than they did back then. Years-long (or, as it is now decades-long and centuries-long) periods are about giving someone the right to tax culture for many generations, not about incentivizing creativity. It undermines the public domain.
18 months runs into the problem of nobody being willing to buy something on month 17… I’d be tempted never to pay for another movie again and I suspect a large fraction of people would react similarly.
5 years is probably at the lower end of actually extracting a large fraction of total value on most works and yet not hampering cultural remixes.
>18 months runs into the problem of nobody being willing to buy something on month 17
Well, that's one way to look at it. The other way is that it merely limits how much it can be sold for on month 17. When I was in high school, one of the big malls had a dollar-a-ticket movie theater. People would pay for things that are more easily/cheaply available soon, they just won't pay the premiums demanded now.
But there's a third way to look at it... the idea that they never owned the intellectual property anyway. It always belonged to the public domain, they had a temporary lease. And in that view, the idea that they'd have trouble extracting maximum dollars from it on the day before the lease ends is absurd. No one cares, nor should they care.
>I’d be tempted never to pay for another movie again a
Why aren't you tempted for that now? I gave in to that temptation, and it is the superior experience. I can do all the streaming I need, to any of my devices (or my friends' devices) anywhere in the world. Everything on demand, from every premium channel and streaming service, in the highest resolution. Every minute or every day. I read comments here and elsewhere about people complaining how they have to cancel Netflix, the show's over, but they have to resubscribe to Disney because the new show's on, etc. It's all bizarre. The stuff you guys are willing to put up with is mind-boggling.
>5 years is probably at the lower end of actually extracting a large fraction of total value
You should be concerned with whether they can extract their costs, plus modest profit. Not "value". The magnitude of the grift in the industry that gave us the term "Hollywood accounting" is beyond human imagination or capacity to comprehend. Stop enabling that.
> Why aren't you tempted for that now? I gave in to that temptation, and it is the superior experience.
Ethics
> You should be concerned with whether they can extract their costs, plus modest profit.
The creative industry isn’t wildly profitable. Slash the amount of money movies/books/etc make on average and you dramatically reduce the amount of movies/books/etc published.
After all we could totally remove copyright, but then you don’t get leech off the fruits of other people’s labor if they never preform that labor.
Slash the amount of money movies/books/etc make on average and you dramatically reduce the amount of movies/books/etc published.
Published for profit.
There are numerous other incentives to produce books.
Schopenhauer has something to say about publication for profit:
<https://en.wikisource.org/wiki/The_Art_of_Literature/On_Auth...>
Hogwash.
Producing books without a profit motive requires some other means to support the vast time investment. Thus robbing the world of great works from those lesser creatures who still need to work for a living.
The only loss is competition drowning out the works of well off but talentless people. We’ll get vanity projects either way, what we lose is however irreplaceable.
Profit motive's not doing much for great works of literature:
"The Big Five Publishers Have Killed Literary Fiction" (2024)
Serious readers must expand their tastes to the small presses.
<https://www.persuasion.community/p/the-big-five-publishers-h...>
I've some direct exposure to this in my role of keeping a visually-deprived friend in books, going through a very large national library's collection of 300k+ audiobooks. Their tastes tend to run through mid-20th-century literary works, largely European authors. We've at least sampled some 2k--4k titles (it's difficult to get a precise count through the tools I'm using though I think I might be able to squeeze that out).
I've had to get immensely creative with searches (something I've many decades of experience with myself), and trust me, lists of recognised literary awards have been squeezed for all they're worth. There's simply little published since 1970 that's of remote interest.
I'll allow that some of that is due to frustratingly narrow tastes. But seeing articles such as I've linked above rather reinforces my view.
There is a lot of popular and some mid-list work. But Great Fiction? If it's being produced, it's also getting buried by sludge.
The big five are hardly the only purveyors of for profit works.
Go back through any list of the great works and you’ll find a great deal of populist authors. Shakespeare, Dickens, Herman Melville, etc were producing the exact kinds of works you’re looking down on.
Perhaps something fundamentally changed, but it seems more likely bias is talking here.
William Shakespeare (c. 23 April 1564 – 23 April 1616) predates the first modern copyright law, the Statute of Anne (1710), by roughly a century. His income came from performances, that is, asses in seats, not book sales. His posthumous fame came in large part from the fact that those published plays were free from copyright encumberance and could be performed or published without licence fee.
Dickens pioneered the model of serial publication on which other authors of his time (notably Tolstoy) made much comment.
You've failed to mention Mark Twain (Samuel Clemens), who was constantly in debt, damned near killed himself with one of his two possessions (a revolver, the other being a nickel), broke and unemployed in San Francisco. His relative financial flush later in life was largely due to his father-in-law's support. And asses-in-seats on the lecture circuit.
Melville, like many other authors (F. Scott Fitzgerald of Gatsby fame comes to mind) saw a greatly-increased fame after his death, with Moby Dick becoming reestablished on the centennial of Melville's birth, some 28 years after his death. Melville worked during his life as a clerk, sailor, and farmer. His writing career met with very limited financial success. His works were great, no doubt, his income failed to measure up, and could hardly be considered his chief incentive. Later in life, like Twain, Melville benefitted by inheritance and lectures.
The point you seemed to have missed was each of them were populist authors.. To look down on populist writing is to misunderstand western literature.
Further we never got to read a book by Shakespeare because of the lack of copyright at the time. Imagine a world where he had more time to devote to such things.
Similarly Dickens was hampered by being paid by the word.
Melville on the other hand wrote Moby-Dick through the commercial success of less famous works. What happened later in life isn’t particularly relevant here, what’s generally considered the greatest work of western literature was completely dependent on someone being paid for their writing. It wasn’t some breakout novel from a new writer it’s the culmination of serious refinement of his talents that takes not just inspiration and life experience but time.
> The creative industry isn’t wildly profitable
There are a lot of profits in the industry, but as I think you're alluding to, not a great proportion of those profits go to the creators.
I want a model where I can compensate artists and creators (up to and including producers) equally to (or better than) the distribution and marketing arms. This can be cobbled together in some cases, but not simply.
> not a great proportion of those profits go to the creators
That’s often stated but misses the underlying reality is that the money is mostly spent on things which increase revenue. An unadvertised movie means less people pay for tickets, remove it and there’s less to go to everyone else.
> equally to (or better than) the distribution and marketing arms.
Obviously there’s fat to be cut from these industries but being a self published author isn’t some shortcut to success and would become even harder with very short copyright terms.
Some authors are finding success on Patreon etc, but it further limits the talent pool by requiring more than just being a good writer.
You're right. Marketing is expensive. Distribution is cheap these days, but often the two functions are colocated.
I would even posit that many popular creative works are commercially worthless, absent the expensive marketing. And in some cases, the marketing comes first and the creative work is basically an effort to fulfill the marketing spec. Implicitly or explicitly.
But like venture capital, the entertainment industry is sustained by the huge successes, and they are motivated to overspend on every attempt. This works in VC (for founders at least) but it doesn't work well for artists.
I don't have a solution, but I wish for something that would bypass the go-big-or-go-home model while fostering organic success. (And I'm thinking of the music industry primarily. Movies and books occupy different spots on the continuum, though some of the same issues do apply.)
It takes more than 18 months for many good works to get through all the editing processes. You can tell when publishers skip on that time as the quality is worse.
Piracy is only bad if you want to earn money for each eye watching a minute of a movie. What we're doing right now is piracy, no one pays anyone anything for content
The question shouldn't be about how much it costs but why do things cost anything in the beginning, and if they have to what is the amount a specific piece should be retributed for its contribution to society minus how the non-zero cost impacts society.
AIs are being let off the hook with their massive copyright infringement but when a movie being open directly benefits everyone suddenly that's a problem.
>Piracy is only bad if you want to earn money for each eye watching a minute of a movie. What we're doing right now is piracy, no one pays anyone anything for content
This is utterly nonsensical. You've invented a new definition of piracy to try to claim that streaming services are piracy.
Specifically at this point:
>no one pays anyone anything for content
This is literally factually incorrect. Netflix pays billions per year to copyright holders. Just because it's indirect payment in the form of a subscription doesn't mean you're not paying for the right to view content.
The middle ground could be a lot of different things. One might be a reformed copyright system.
The economist I know of who calculated a socially optimal copyright duration, Rufus Pollock, came up with an estimate of 20 something years.
This makes sense from the point of view of finance because the NPV of extra years beyond this is very low. To put it in qualitative terms, no one is thinking about their grandchildren's pensions when they decide to create a work.
Personally I would also have different durations and rules for different types of work: a book, a video, and a piece of software are very different works and need diffferent incentives
The Best Years of Our Lives is a genuine classic. Complex narrative, brilliant cinematography and performances. It is a much more difficult film than It's A Wonderful Life, and absolutely worth watching.
I've seen The Best Years of Our Lives several times; it plays regularly on TCM.
/me raises hook hand . . . Myrna Loy . . .
> This has strong vibes of “If only Linus Torvalds had charged for Linux, he would have been a rich man today.”. It does not work that way.
Not at all similar. Linus explicitly made his software free. Romero didn't _intentionally_ exclude the copyright notice, and had no explicit intention of making it free.
> It’s not “ironic”, it’s completely expected. If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best.
"completely expected" is quite a stretch. Simply making it public domain wouldn't be enough. It still has to be a good movie. I'm sure there are countless other public domain black-and-white movies that no one has ever heard of.
>I'm sure there are countless other public domain black-and-white movies that no one has ever heard of.
See: MST3K and RiffTrax
We had (many) version of Unix that were superior to Linux for a very long time. We can reasonable debate what Sun (in particular) should have done differently with SunOS/Solaris and Java in particular, but a for-pay-only version of Linux would just have been a fairly mediocre Unix variant.
[dead]