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Public Domain, Vampires, and Werewolves

A recognized part of society’s IP bargain is that after enough time has passed, a work or invention will become public domain. Others are then free to modify the original work, build upon it, and add value.

The public domain also includes works for defiling, too, as “one man’s trash is another man’s treasure.” Echols v. CIR, 935 F. 2d 703, 707 (5th Cir. 1991).

The recent rise of “mashup” books reflect the broad scope that the public domain affords to later creators. These books often combine the story, characters, and setting of literary classics with elements from supernatural genres—vampires, werewolves, etc.

Examples are remarkable: Pride and Prejudice and Zombies, by Seth Grahame-Smith and Jane Austen. Sense and Sensibility and Sea Monsters, by Ben H. Winters and Jane Austen. Little Women and Werewolves, by Louisa May Alcott and Porter Grand.

These new old works are not limited to print, either. This year will see the release of the full-length feature film Abraham Lincoln: Vampire Hunter:

President Lincoln’s mother is killed by a supernatural creature, which fuels his passion to crush vampires and their slave-owning helpers.

We have the limited copyright duration required by the Constitution to thank for these works. This limited duration is a balance of competing public claims: Creative work should be rewarded, but private motivation must promote public availability artistic works in the long run. One wonders if the Founders would have struck a different balance had they known of Abraham Lincoln: Vampire Hunter. No doubt Jane Austen’s heirs could have prevented zombies from invading her work, if they owned eternal copyrights.

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Eternal Copyrights, Net Present Value, And Incentives

Adrian Hon writes a clever, tongue-in-cheek criticism of lengthy copyright terms at The Telegraph. He notes that current copyright laws create intolerable intergenerational inequities:

Imagine you’re a new parent at 30 years old and you’ve just published a bestselling new novel. Under the current system, if you lived to 70 years old and your descendants all had children at the age of 30, the copyright in your book – and thus the proceeds – would provide for your children, grandchildren, great-grandchildren, and great-great-grandchildren.

But what, I ask, about your great-great-great-grandchildren? What do they get? How can our laws be so heartless as to deny them the benefit of your hard work in the name of some do-gooding concept as the “public good”, simply because they were born a mere century and a half after the book was written? … Read the rest of this entry

Golan v. Holder Allows Patents On Laws of Nature, Physical Phenomena, and Abstract Ideas

The U.S. Supreme Court’s recent decision in Golan v. Holder suggests that the Constitution’s Patent and Copyright Clause imposes no meaningful substantive limits on Congress’ power over patent subject-matter eligibility. Congress could authorize patents that claim fire, the wheel, or any number of other ancient discoveries.

In Golan, the Supreme Court rejected a constitutional challenge to an act that re-imposed copyright protection on certain works that had been in the public domain. The Court held that the Copyright and Patent Clause does not make the public domain “a territory that works may never exit.”

The Court’s reasoning is defensible in light of history and precedent. But it raises interesting new questions about the constitutional limits (if any) on patentable subject matter. Read the rest of this entry

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