Re: [dvd-discuss] Eldred Amicus

[microlenz(at)earthlink.net]

On 29 May 2002 at 20:12, Charles Ballowe wrote:

Date sent:      	Wed, 29 May 2002 20:12:40 -0500
From:           	Charles Ballowe <hangman@steelballs.org>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] Eldred Amicus
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> On Wed, May 29, 2002 at 05:16:52PM -0700, Michael A Rolenz wrote:
> > Woooowwww There! The idea can not be copyrighted and the whole point is 
> > for you to take the ideas with you but not the exact expression of them. THe
> > question is how much you do with the ideas? For example, Imitations do not
> > qualify as derivative works because they are original works How many fictional
> > detectives have a less smart friend, a doctor, that are always recording the
> > cases? Until fairly recently others could not create derivative works with
> > characters called Sherlock Holmes and Dr. Watson and set in late Victorian
> > London. I don't know if you've ever noticed by Ridley Scott's "Alien" created
> > a whole industry of clone movies that are essentually identical to it. Are
> > they derivative works of the original? No. Are they extrememly bad imitations
> > (most of them)? YES. Are they protected by copyright? Yes.
> > 
> 
> So why was the author or publisher of "The Wind Done Gone" taken to court?
> I realize the injunction was dropped, but that is a derivative work - right?

Because the original judge was a twit! It was NOT a derivative work. It was a 
parody. ALso the injunction was an improper restraint. THe judge did not seem 
to realize that the injunction involved the FA whereas copyright infringment is 
not stated in the BIll of Rights (althought the MPAA would probably like to 
rewrite it). Even had it been a derivative right the injunction would have been 
ultimately dropped for that reason.

> Putting somebody in a position where they must defend their creation seems like
> a load of something unpleasant. While it is true that what I have in mind might
> not be ``derivative works'' by law, the fact that somebody could call them such
> and force a legal defense is enough to bother me. Parody, while well protected
> still draws lots of fire and legal fees. I'd prefer to see only the original
> work protected. The ability to use cultural icons like Sherlock Holmes or Mickey
> Mouse in a story should not be restricted by copyright. 

Well people have to defend their creations daily. Harlan Ellison does it 
routinely. The problem with your argument is that you make reference to 
"cultural icons". So...things that don't become cultural icons are more 
deserving of protection than those that do? So those who possess genius to 
create them should be denied the equal protection of those who do not possess 
the genius? That's where the argument leads. Either EVERYBODY gets the same 
protection or some get more protection than others (And the fact the right now 
those who get the copyrights to cultural icons have extended them is another 
problem that has to be solved but eliminating the protection that all have to 
address that specific problem is not the solution either.)

> 
> --(not so)random question--
> If I were writing a story about a detective and his side kick and gave them
> names and proceded to introduce the characters as "Fred is exactly like Sherlock
> Holmes, except his name is Fred..." would that make mine a derivative work? Why
> redescribe a character people already know?


More likely a laughable hack work...but saying Fred is exactly like Sherlock 
Holmes does not make your writing Arthur Conan Doyle's. But writing a story 
with Sherlock Holmes and Dr. Watson that is hackwork and presenting it to the 
world as a Sherlock Holmes story does diminish ACD's ability to create real 
stories since it confuse the public (and is fraud since ACD is recognized as 
the creator and the hack isn't. BTW is you want pastiche read August Derleth's 
Solar Pons. No chance of copyright infringement there.)