Seldon2639 said:
Yes, it is copyright infringement even if you add a bunch of original work on top of an existing work when you're taking the existing work verbatim (He's So Fine vs. My Sweet Lord). But if there's enough "artistic value" in the derivative work itself, you can take out all of the copyright infringement and make it work (Fifty Shades of Grey)
Just because you can "make it work", doesn't mean that it's a good thing to do. Fifty shades is a particularly strange work in that in spite of formally being Twilight fanfiction, it had little to do with Twilight in the first place. Many derivative works like my below examples of Arkham Asylum or The Penelopiad might only use names, but the (original) assets built around these names are meaningful enough that copyright enforcement would still break their plot.
Seldon2639 said:
Theoretically, it's more of a "under a very, very, specific set of circumstances where not only are there many similarities but you can show actual copying." Absent copying in fact, substantial similarity isn't about the feel or the tropes or the mis-en-scene, it's about using the actual content.
[...]
That's not quite how substantial similarity works, and I'd encourage you to go look at the case law on the subkject. It's significantly more complicated than "yup, that sounds an awful lot like it."
Isn't that what I just said? That the problem is, that copyrights are obsessed with the specifics of content getting reproduced, instead of the actual claims of "unoriginality", or "taking someone else's work instead of creating anything", which then gets thrown at such works.
This is exactly what ContentID is doing as well. Throwing copyright infringement at Let's Play-ers on the account of some ambient sound effect in the background being copyrighted, as if the fact that they have "taken content" from someone would render the rest of their own independent work useless.
Seldon2639 said:
And what you describe (derisively) as allowing through larger examples of "unoriginality" is actually precisely what you demanded earlier in this thread: that copyright law accept that there is nothing truly new in any medium. There are no new notes, no new stories, no new themes. So, instead of saying "well, because it has a similar overarching story, it's copyright infringement" it is limited mostly to (a) copying verbatim, or (b) creating a derivative work.
I'm not derisive about unoriginality. I'm just as supportive of new, derivative works repeating plots (that still add new location names), as of new, derivative works repeating a few words, like location names (that write new plots).
I'm questioning the double standard, of why only the latter gets tagged as derivative in the first place.
I would guess that J.K. Rowling spent significantly more time deciding that she should try writing a whimsical wizarding school bildungsroman with an overarching Hero's Journey plot, than with giving his protagonist a name.
So why is it that writing a new whimsical wizarding school bildungsroman with an overarching Hero's Journey plot can still make you a celebrated writer as long as it still has enough interesting points, while using the Eleven Magical Words "Harry Potter" gets you tagged for "merely taking away someone else's work instead creating your own"?
Seldon2639 said:
Yes, a derivative work authorized by the original creator is less concerning than an unauthorized work. Why is that surprising to you?
The surprising part is in the specific accusations that get thrown at a work merely for being unauthorised. The Dark Knight was the most celebrated movie of 2008, and I don't recall anyone talking about it in terms of it being "reuse of existing art for someone else's profit", or a "stunning lack of original creation", or that it's artists "lack the originality that the writer of Fifty Shades of Grey had".
No, it was all about Nolan (and even Heath Ledger) being visionaries, and True Artists, and whatever.
It's one thing that The Dark Knight was a legally licensed derivative work, but why is it, that the formality of legal licencing seeps into it's perception as a work of art worthy of it's own recognition?
Seldon2639 said:
If this is the case, how does this relate to the hundreds of highly respected works of art and entertainment, created by someone else than the artist who made the universe, and published thanks to licensing arrangements, or Public Domain allowances?
To the first, it's an agreement by the original creator which gives the right to some other person to make derivative works. To the second, it's publication agreement, not itself a derivative work. To the third, a work which has passed into the public domain is deemed to be fair game.
[/quote]
Thanks for repeating after me the legal reality of HOW copyright law justifies the existence of these works, but here we are talking about the OUGHT TO.
I'm not asking for your explanation on why these specific works are allowed to exist, but pointing out that when you are talking about hypothetical derivative works, you are talking about artistic works potentially on par with these, censored by being deemed acts of taking instead of acts of creating.
You have made several hypothetical examples in your posts, inventing derivative works the lowest possible amount of thought put into them to present them as unworthy.
- "I'm taking the music from Mackelmore's latest track and putting some wub wub in it."
- "Leonardo Da Vinci being able to prevent other people from making "The Mona Lisa, Part 2."
- "the guy who repaints the Mona Lisa in front of other backgrounds (and is successful only because people want to buy good reprints of The Mona Lisa"
I just want us to let's be honest about the fact that these are still the works that you are attacking when you present all derivative works as a lower form of creativity, even if these ones in particular had special ways to get produced in spite of copyright.
When you say:
"The value of the unauthorized movie is dwarfed by the value of protecting Mr. Butcher's rights in his own work."
You are also saying that:
The value of The Dark Knight's or Arkham Asylum's righ to exist, is dwarfed by the value of protecting DC's right to control all values deriving from "their work" (that is, Detective Comics#27).
That the value of Moore's League' being allowed to exist, is dwarfed by various 19th century writers' right to stop League' from existing for as long as 70 years after their death.
Seldon2639 said:
But that's actually a good example of why your argument is farkakte. Imagine a movie made about The Little Mermaid after the original story entered the public domain. If a second movie comes out using the same art assets, and (rather than being a retelling of the original story) is a continuation of the first movie. That's not taking the same underlying ideas (including those in the public domain), it's taking someone else's work.
And yet the first Little Marmaid movie should still get recognized as a work worthy of copyright protection, even though by your own standards, it has also "taken assets", such as the title and presumably character or location names.
Apparently, just by Andersen's first Little Mermaid passing into Public Domain, after an arbitrary limit of time, taking elements from it is no longer merely taking someone else's work and slapping a new coat of paint on it?
If you can admit that the first movie had an artistic value of it's own compared to the Andersen tale, in spite of being derivative, why isn't the same true for the second movie compared to the first?
Seldon2639 said:
There is a way to justify that copyright would be used to limit those works under different circumstances. If, instead of partners with WB to create Arkham Asylum, Rocksteady was me by myself making an unauthorized video game of Batman, I would be able to (a) sell my game under the name of a popular franchise and thus profit without permission from someone else's work
Why is it "someone else's work? You are the one doing the work with the game, not DC. There is significantly more creative work put into all the code, art assets, and dialogues created for the actual game, than 74 year old claim on a few character or location names.
But even assuming that producing an actual product is "dwarfed by" the work of having created names such as "Batman" and "Joker", how is this not true for any other (legal) drivative work? If you make a game based on L. Baum's Wizard of Oz novel, you are also "profit without permission from someone else's work", after all thanks to public domain, you don't have to ask permission from HIS assignees.
Seldon2639 said:
That's circular. After all, what is "the franchise" if not DC's and WB's legal authority gained over other people's work? The question is why they should own something as nebulous as "the franchise" in the first place, instead of just their actual produced works.[/quote]
Seldon2639 said:
(c) make artistic decisions that the creator/his assignee does not approve of.
The same problem as with (a), that the same problem would also apply to legal derivativeness. To give another example than Public Domain, under Fair Use you are allowed to create a parody. This means, that you are not just allowed to portray copyrighted characters in an artistic situation that twists their original intent, but that's pretty much the ONLY thing that you can legally do, as straightforward honest portrayals are less protected by Fair Use.
Seldon2639 said:
And my incentive to write, when it becomes apparent that if my series is popular it's going to be taken by every Tom, Dick, and Harry to make derivative works (movies, television shows, other books, merchandise), is not diminished?
Maybe it would incentivize you to seek value in the merits of actual works that you produce, instead of dreams of "franchise building". Maybe there would be less games with "Origins" in their subtitle, and more trying to stand up by their own merits.
Seldon2639 said:
Weird that your focus is on the profitability of the people whose only creative ability is "I took someone else's work and did something with it.
Yes, I'm focusing on the profitability of people whose only creative ability is writing movies like Dark Knight, instead of the profitability of a corporation being secured on every possible derivation of a 70 year old comic book about a man dressed like a bat beating up a man dressed like a clown.
Seldon2639 said:
Except that if your much-maligned common "artists" could write a creative work not dependent on existing character names, or existing universes, they would be able to take out the infringing parts and have a damned decent work.
Yeah, if ony we had some sort of legal system to force Virgil to write a damned decent work instead of the Aeneid, or Tom Stoppard to write something decent instead of Rosencrantz and Guildenstern are Dead.
Oh, wait what? They did write many other works, with original "universes and character names", and these are still their most highly respected additions to the Western Canon?
It almost sounds like you are back to spewing your generalizations, about how legal copyright approval is the proof of artistic merit.
Seldon2639 said:
snip, stuff about trademark law
The point was, in part, that profiting (without permission) from the hard work of the original artist is similarly ethically "wrong" to profiting by using someone else's established franchise name.
And the point failed on the account of trademarks having an entirely different purpose of guaranteeing seller honesty in advertisements.
You are not forbidden from selling Michael Jordan shoes because slapping the face of Jordan on an ad is "hard work", but because it would misleadingly imply a certain level of quality.
That's why you are still allowed to write a story called the Little Mermaid, because if copyright doesn't extend to it, neither does trademark, since it's no longer an implication of "Andersen quality".
The ethical reasons of trademark are dependent on copyright. If franchise rights wouldn't be a part of copyright, then ethical reasons of trademark would be nulled on that issue just as well, since releasing a "Final Fantasy" game wouldn't be misleading either.
Seldon2639 said:
Well, first, we're not actually talking about criticism or cultural trends. You seem to spend a lot of time mistaking "derivative works" for "critical works." If you want to write an article about how The Dresden Files sucks, that's entirely within your rights and no copyright law stops you.
And presumably, in that article I would be allowed to name the works, their protagonists, and main locations.
In other words, by your standards I would be allowed to "take away the original artist's work" for my own purposes.
Why do you think that it is in my right to do take them away from the artist for an article, but not for a fictional work?
Seldon2639 said:
Why, in your mind, does "inspiration" require "direct usage of other people's work"?
It doesn't "require", but sometimes it does include that. For example Alan Moore's League' is heavily critical of i's source materials, to the point of satire.
Seldon2639 said:
No, you don't see an unauthorized Star Wars game. You just see Mass Effect.
But just look at works that CAN get published
Now, you are pretty much saying that it's all right if some people get censored, because a few can still get permission o say it, and the rest can still say something else instead of what is being censored.
It's no problem if people can't make Let's Play videos, they will do something else instead anyways!
Seldon2639 said:
Maybe Rocksteady could have made a non-Batman game which was equally compelling, deep, with just as good gameplay, never referencing any part of Batman or Batman mythos?
I agree, which is why them having to get a license to make Batman doesn't stop them from any creative works.
Yeah, because as long as SOME possible compelling, deep games are allowed to get made, that means that copyright "doesn't stop creative works" at all.
As long as the act of creating art itself isn't banned, everything is fine because artists can always create "something equally good", therefore really nothing is banned.
We might as well extend copyright to 500 years after the author's death, and if someone is no longer able to make a modernized Romeo and Juliet adaptation they planned, literally nothing of value is lost, they can just write something else.
We might as well randomly ban specific works, or genres. Let's ban all zombie movies, and no freedom is lost, because their publishers can just make something else instead.
Seldon2639 said:
What's wrong with the creator (or his assignee) being able to decide "hey, this idea for a book is cool, let's let her write it"?
That it also means giving them the right to decide "hey, I don't like this book, let's send out a C&D letter to erease it from existence".
