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(Message started by: Enigmacode on Jun 18th, 2006, 5:42pm)

Title: Are Old Post Cards Copyrighted?
Post by Enigmacode on Jun 18th, 2006, 5:42pm
Hello

I've collected a few old postcards that I bought on Ebay.

The dates (indicated by postmark) all vary - most are from the 1940's.

None of them have any actual copyright indicated. It's my guess, as I've done copyright searches before concerning old LP's, that these postcards may have been copyrighted at one time or another. But a good guess is (if they had copyrights), they are more than likely expired.

Does that neccessarily mean one should profit by using them in a production?

No

But if your project is created for non-profit, and is not shown the world over, then what would be the harm?

Perhaps postcards are not governed by the same copyright laws as magazine photos or music recordings?

Thanx

;)

Title: Re: Are Old Post Cards Copyrighted?
Post by JimIvey on Jun 19th, 2006, 11:33am
First, I'd suggest asking in the Copyright Forum (http://www.intelproplaw.com/Forum/Forum.cgi?board=copyright).

The answer can be fairly complex because the term of a copyright keeps changing and getting longer, thanks to heavily financed lobbying efforts by Disney and others.  I think a good rule of thumb is that anything newer than "Steamboat Willie" (One of, if not the, first movie staring Mickey Mouse) is still protected by copyright.  But someone with more copyright experience will be able to give you a better chart to determine what the odds are that an older photograph is protected by copyright.

For what it's worth, copyrights and patents are intended to eventually result in a wealth of material in the public domain.  Of course, that can't happen if they never expire.  Most people in Congress now seem to think that IP is solely about protecting the rights of creative people and, more particularly, the companies that hire them.  I think that's unfortunate.  I understand that IP was (and should be) about encouraging creativity just enough to enrich us all with the fruits of such creativity.  But, as one commentator on Disney's efforts in the latest Supreme Court case about perpetually extending copyrights said, "since when has what's right prevailed against all the money in the world?"

Regards.

Title: Re: Are Old Post Cards Copyrighted?
Post by Rob Taft on Jun 22nd, 2006, 7:56am
In my view, there is too much emphasis in intellectual property law on what makes sense economically.

There are other issues at stake - do you want kids to have to see the cultural icon mickie mouse smoking a cigar on some billboard as he rides to a baseball game with his family.

Yes, it does not make sense to extend rights indefinitely as the idea is to get them in the public domain, but there should be some exceptions.

Title: Re: Are Old Post Cards Copyrighted?
Post by JimIvey on Jun 22nd, 2006, 9:27am
Ah, I see it's time for one of my favorite anecdotes in response to Disney as the guardian of modern-day family values.  My apologies to the long-time participants here who have heard this story before.

My wife used to run a city-owned day care center -- infants up to preschoolers.  On occasion, a parent would bring in a child's favorite video as a sort of pacifier -- to placate the child in times of stress.  On occasion, times of stress would ensue and the video would be played for that child.  On occasion, other children might watch along side.  On occasion, the video would be a Disney video.  

So, she received a cease and desist letter from Mickey himself -- stop this illegal theft of my and Minnie's intellectual property or we will sue your arse.  Did it matter that at no time was a Disney video the primary (or even a significant) activity in the day care and that videos were never advertised as an activity provided for the children at the day care?  Nope.  Airing a Disney video in a place of business where someone other than the owner might actually see part of it was enough to get the lawyers' briefs all in a bunch.

After that, children who were comforted by Disney videos went uncomforted during times of stress at the day care center.  Hooray for Disney family values!

As for "what then protects our children?", we do.  Remember Joe Camel, the cute cartoon camel smoking Camel cigarettes?  If you don't, then all the complaining by parents and child advocates worked.  If you do, it still worked and you remember the controversy from about 10 years ago or so.  But protecting children was never the intent of intellectual property law.  We have other mechanisms for that.

Regards.

Title: Re: Are Old Post Cards Copyrighted?
Post by Isaac on Jun 22nd, 2006, 9:33am

on 06/22/06 at 09:27:35, JimIvey wrote:
Ah, I see it's time for one of my favorite anecdotes in response to Disney as the guardian of modern-day family values. My apologies to the long-time participants here who have heard this story before.


Jim, you seem to have forgotten a basic anecdote telling rule.  You're supposed to add some "facts" with each retelling  ;)

Title: Re: Are Old Post Cards Copyrighted?
Post by JimIvey on Jun 22nd, 2006, 11:30am
"Forgotten?"  I would have to had known of that rule to have forgotten it.

Okay, here are some new "facts."  About 15 special agents in Disney character costumes and full S.W.A.T. gear showed up -- I think there was Mickey, Goofey, and who's the girl duck?  They stormed the building, dragged my wife out, grabbed all the Disney paraphernalia (including some Barney and Sesame Street paraphernalia under mistaken beliefs re ownership of that material) and piled it up on the front lawn and had a mid-day bonfire.

Here's the eerie part.  They started with a big bonfire, then had a smaller one when they found more stuff, then a third one when they found yet more stuff.  Because of the arrangement of the bonfires, they left a 3-circle image looking very much like the Mickey Mouse silhouette logo.  So Disney sued again.  The city re-planted that grass, but then you had a bright green Disney logo in the browning summer grass -- so, they had to plow under and re-plant the entire lawn.  That was cheaper than the license Disney was offering.

So, those are some new "facts" for this telling of the story....

;-)

Title: Re: Are Old Post Cards Copyrighted?
Post by JSonnabend on Jun 23rd, 2006, 8:06am

on 06/22/06 at 07:56:55, Rob Taft wrote:
do you want kids to have to see the cultural icon mickie mouse smoking a cigar on some billboard as he rides to a baseball game with his family.

Yes, it does not make sense to extend rights indefinitely as the idea is to get them in the public domain, but there should be some exceptions.


And who would you appoint as the morality police?  For that matter, what standards would you suggest?  Applying different copyright terms based on the content of a work (as opposed to the subjective type of work) flies in the face of the First Amendment, does it not?

- Jeff

Title: Re: Are Old Post Cards Copyrighted?
Post by chuckles on Oct 26th, 2006, 5:35pm

on 06/22/06 at 09:27:35, JimIvey wrote:
Ah, I see it's time for one of my favorite anecdotes in response to Disney as the guardian of modern-day family values.  My apologies to the long-time participants here who have heard this story before.

My wife used to run a city-owned day care center -- infants up to preschoolers.  On occasion, a parent would bring in a child's favorite video as a sort of pacifier -- to placate the child in times of stress.  On occasion, times of stress would ensue and the video would be played for that child.  On occasion, other children might watch along side.  On occasion, the video would be a Disney video.  

So, she received a cease and desist letter from Mickey himself -- stop this illegal theft of my and Minnie's intellectual property or we will sue your arse.  Did it matter that at no time was a Disney video the primary (or even a significant) activity in the day care and that videos were never advertised as an activity provided for the children at the day care?  Nope.  Airing a Disney video in a place of business where someone other than the owner might actually see part of it was enough to get the lawyers' briefs all in a bunch.

After that, children who were comforted by Disney videos went uncomforted during times of stress at the day care center.  Hooray for Disney family values!

As for "what then protects our children?", we do.  Remember Joe Camel, the cute cartoon camel smoking Camel cigarettes?  If you don't, then all the complaining by parents and child advocates worked.  If you do, it still worked and you remember the controversy from about 10 years ago or so.  But protecting children was never the intent of intellectual property law.  We have other mechanisms for that.

Regards.


Forgive my ignorance, but how is it theft of intellectual property to show a movie that you've paid for? Is this a restriction covered by US copyright legislation or does it come as a term of purchase? And if the latter, how would the average consumer be aware of this restriction and consent to it at the time of purchase? Lastly, would this restriction extend to other types of copyrighted works, e.g. lending out a book?

Title: Re: Are Old Post Cards Copyrighted?
Post by JimIvey on Oct 26th, 2006, 5:59pm

on 10/26/06 at 17:35:48, chuckles wrote:
how is it theft of intellectual property to show a movie that you've paid for? Is this a restriction covered by US copyright legislation or does it come as a term of purchase? And if the latter, how would the average consumer be aware of this restriction and consent to it at the time of purchase? Lastly, would this restriction extend to other types of copyrighted works, e.g. lending out a book?

Under terms generally associated with videos and such, it's for the private use of the purchaser or any assigns (subsequent owners).  So, you can't just buy the Little Mermaid DVD and invite people over for $1 each to watcht it -- or start your own movie rental company or low-budget theatre.  In essence, no commercial use.

You know stores that play music as background music?  They have to pay extra for that.  I used to take kempo karate in a dojo that played their own home-grown mix tapes for sparring on Thurs. nights.  They got a nice polite letter from ASCAP asking them to stop or pay what ASCAP perceived to be a very reasonable license -- I think it was $75/month for up to 20-25 people in the place of business at any one time.  

So, how does one know about these limitations?  It's usually in that FBI notice that you like to FF through at the beginning of a video -- can't do that anymore with most DVDs, so take a moment and review it.

The other way you learn about that is you read your mail.  You'll get a letter from ASCAP or maybe even Mickey in his quest to protect family values from unpaid viewing of his work.

Lastly, DVDs for home use cost about $15.  DVDs for use in a movie rental business cost about $90+ -- you see, more rights cost more.  So, if you paid $15 or thereabouts for your movie, chances are you can't show it to anyone else or Mickey will have to get a little goofey on you.

Okay, ready for the law school quiz?  Let's look at some grey area.  Suppose you buy a movie and all your friends want to watch it but don't want to buy it, so you throw a party and everyone who comes must bring something -- beer, chips, those funky Groucho Marx plastic glasses, you know, the typical party stuff.  Is that a commercial presentation of the movie?  You ask for goods in exchange for showing the movie.

Ah, some clever student points out that any damages would be too small for the copyright owner to really take any action.  However, from what I understand, there is absolutely no such thing as too small an infringement on Mickey's IP.  They go after everything, no matter how small.  Your best hope is that they never find out about your party.

Regards.

Title: Re: Are Old Post Cards Copyrighted?
Post by chuckles on Oct 26th, 2006, 7:02pm
No doubt I wouldn't stand a chance against Mickey in court even if I happen to be legally right, but this seems to go against what they taught us in Contracts 101. Both parties need to consent to a contract in order for it to be binding. If I buy a DVD and I'm not informed of any restrictions on use at the time of purchase, then the contract between me and Mickey via their agent, the retailer, is unrestricted use of the DVD in exchange for $15. For Mickey to then inform me that I can't do so and so with the DVD would appear to be an imposition of a later term that I never agreed to and that I shouldn't be bound to.

Title: Re: Are Old Post Cards Copyrighted?
Post by JimIvey on Oct 26th, 2006, 7:46pm
You might find the topic of shrink-wrap licenses interesting.  An adjunct to that is the "click-wrap" license.  I honestly can't remember the last time I bought a DVD and looked carefully at the wrapping, but you might look there for some analog to what you see in software -- a license that you consent to by piercing.  I imagine there'd be some similar contract language on the DVD saying that, if you don't agree to the license, you should immediately return the DVD for a full refund.  Then, start thinking of adhesion contracts and to what extent they're enforceable.  All that 1L stuff you learned may just come in handy.

And, whether you believe it or not, threatening letters from particularly aggressive parties are often not based on the law but rather are no more than a bullying tactic to get you to do what they want without having to resort to litigation.  I was listening to some legal expect talk about cease and desist letters on the smoking gun dot com (don't know the URL and don't feel like looking it up -- try google) and his opinion was that 80% or so where blatantly outside the law -- I believe the wording he used was "absolutely ludicrous and laughable".  Is it illegal to bluff?  Apparently not.

At the very least, Disney and the RIAA and MPAA and friends are extremely aggressive in asserting rights they may or may not have.  They seem to be happy to sell you a DVD for $15 but want $90+ from a rental store.  There are legal ways to accomplish that and, despite the fact that I haven't reviewed a DVD package in detail recently, it wouldn't surprise me to learn that the terms of the license are spelled out somewhere in the packaging if not just the FBI "we'll burn your children at the stake" warning.  I mean, Jeez, just look at the instant death penalty for putting a pre-release movie on bittorrent!  Yeah, that's a bad thing to spoil a movie made with huge investment prior to its release, but immedate execution for mere suspecting without any appeals?!  Jeez!  Okay, it's not that bad, but you'd fare better if you just robbed somebody at gunpoint.  It begs the question as to our society's priorities.

Regards.

Title: Re: Are Old Post Cards Copyrighted?
Post by Isaac on Oct 26th, 2006, 8:40pm

on 10/26/06 at 17:59:33, JimIvey wrote:
Under terms generally associated with videos and such, it's for the private use of the purchaser or any assigns (subsequent owners). So, you can't just buy the Little Mermaid DVD and invite people over for $1 each to watcht it --


I just looked at an old Little Mermaid VCR tape. There was lingo on the body of the casette that suggested that I had only a license rather than ownership of a copy of a copyrighted work. Same language on a Sleeping Beauty tape. OTOH, a Scooby-Doo tape just had a generic FBI warning.

Disney doesn't need to explicitly reserve any rights to keep you from doing a public performance of a movie because public performance is one of the copyright holder's excluse rights. Even owning a copy doesn't give you the right to do make a public performance even if you don't charge anything just as owning a copy of a video does not give you the right to make and distribute even free copies.

On the other hand the copyright holder does have to take special steps limit your right to rent out a video since rental is carved out as an exception to the copyright holders exclusive rights (for works other than music and software). I haven't paid enough attention to what's on the text of DVDs to know how clean the industry is in general on protecting their rights, but apparently Disney at least makes the effort.


Title: Re: Are Old Post Cards Copyrighted?
Post by chuckles on Oct 26th, 2006, 8:41pm

on 10/26/06 at 19:46:54, JimIvey wrote:
And, whether you believe it or not, threatening letters from particularly aggressive parties are often not based on the law but rather are no more than a bullying tactic to get you to do what they want without having to resort to litigation.  I was listening to some legal expect talk about cease and desist letters on the smoking gun dot com (don't know the URL and don't feel like looking it up -- try google) and his opinion was that 80% or so where blatantly outside the law -- I believe the wording he used was "absolutely ludicrous and laughable".  Is it illegal to bluff?  Apparently not.


Regards.


The torts of abuse of process and malicious prosecution should be extended to cover these instances, if they're not already. I would also think that a lawyer who BSes to gain advantage for their client risks being disbarred, unless everyone is BSing and the lawyers serving on professional regulatory boards have no particular interest in setting the honesty standard that high.

Thanks for your interesting comments.

Title: Re: Are Old Post Cards Copyrighted?
Post by chuckles on Oct 26th, 2006, 9:24pm

on 10/26/06 at 20:40:48, Isaac wrote:
Disney doesn't need to explicitly reserve any rights to keep you from doing a public performance of a movie because public performance is one of the copyright holder's excluse rights.   Even owning a copy doesn't give you the right to do make a public performance even if you don't charge anything just as owning a copy of a video does not give you the right to make and distribute even free copies.  


What is the threshold for a public performance?

Title: Re: Are Old Post Cards Copyrighted?
Post by JimIvey on Oct 26th, 2006, 11:29pm

on 10/26/06 at 20:41:09, chuckles wrote:
The torts of abuse of process and malicious prosecution should be extended to cover these instances, if they're not already.

That's one of the things you don't cover in law school and that academia and the courts tend to ignore -- there are very real and significant  transaction costs in every litigation.  Courts seem to write their opinions as if people just appeared before the court magically and with little or no effort -- once you're there, your arguments must be perfect and appear to the courts to be without cost to you.  Some will say that's the way it ought to be -- and maybe that's true, but it ingores reality entirely.

Consider the new rule for expedited examination -- just tell the USPTO about all possible prior art, outline your search strategy, take every conceivable interpretation of your claims, match each conceivable intrepretation against each an every piece of prior art individually and each and every possible combination of references and explain why each and every claim is allowable, explain which of the conceivable interpretations you will limit yourself to such that all other intrepretations are excluded from any subsequent litigation, admit any known or unknown acts of inequitable conduct, predict the winners of the next 10 world series, the next 10 Super Bowls, the next 10 NBA championships, and the next 15 Stanley Cups, and then give us a lien on your first-borne son in case you make a mistake.  

My rough estimate is about $10k of work to comply with the expedited examination requirements -- it's actually considerably easier to file the old-fashioned Petition to Make Special.  But more and more, the PTO is trying to push more and more of the burden onto applicants.  That's arguably better business for me, but it puts the little guy at a distinct disadvantage.

So, sure, sue for abuse of process.  The most you could reasonably hope for is some sort of sanctions, such as those under Rule 11 of the FRCP.  But expect any sanctions to be appealed and delayed as much as possible.  And, if I'm not mistaken (and I frequently am), the money from sanctions don't go to your client.  I think it goes to the court's Christmas party fund.  And, they'll try to argue for good-faith extension of the law.  

Who do you suppose is favored by a legal system that requires each party to bear their own costs of litigation and assumes those costs to be zero and/or not the business of the law?  It would seem, on its face, to favor those for whom the costs of litigation are least significant -- i.e., the bigger litigant.  When Disney sends C&D letters to a preschool for playing a single video once, who do you suppose has the advantage in such a legal system?

Now, I'm not necessarily a little-guy-should-win-everything guy, but our system seems fairly clearly stacked in favor of the big guys.  I don't think it's intentional, but simply out of being a purist in legal reasoning -- not wanting to get involved in the costs of litigation.

Regards.

Title: Re: Are Old Post Cards Copyrighted?
Post by Agent_X on Nov 5th, 2006, 2:40am
Didn't Disney rise from the ashes after Sony Corp. of America v. Universal City Studios Inc gave VCR's the SC's blessing?

They should keep an open mind about IP.  Don't harass your target market, find a new way to sell them services.

Title: Re: Are Old Post Cards Copyrighted?
Post by Isaac on Nov 6th, 2006, 5:49am

on 10/26/06 at 23:29:22, JimIvey wrote:
My rough estimate is about $10k of work to comply with the expedited examination requirements -- it's actually considerably easier to file the old-fashioned Petition to Make Special.


Last week I listened to the PTOs web seminar on the Accelerated Examination process. One thing I hadn't noticed before is that with the exception of petitions made special for health, age, and the JPO pilot program (PPH), all petitions to make special now have to comply with the Accelerated Examination program.



Title: Re: Are Old Post Cards Copyrighted?
Post by JimIvey on Nov 6th, 2006, 7:50am
Re Agent_X's comment:  That's something that's been shown over and over again in various marketplaces -- huge corporate effort to stem the tide of a new technology and the technology ultimately pays them a handsome profit.  There are more examples in the automotive industry -- fighting seatbelts, 3-point seatbelts, 5mph bumpers, airbags, emissions standards, unleaded gas, etc.; each of which led to even higher profits as (i) people felt more comfortable with their newer, safer offerings and (ii) people felt less comfortable with their older, less safe cars.

Re Isaac's comment:  That sucks!  Oh well, thanks for the note.

Regards.

Title: Re: Are Old Post Cards Copyrighted?
Post by Richard Tennesen on Jan 29th, 2007, 11:51pm
What about selling old post cards? Rich



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