Tuesday, August 17, 2010

Holy Kryptonite er... Holy Copyright: Superman (TM) Lawyer Invokes California Anti-SLAPP Law Against a Warner Bros. DC Comics Copyright Lawsuit

Matthew Belloni at THR, Esq. asks: Can the 'Superman' lawyer SLAPP away a Warner Bros. lawsuit?.

See also Steve Younis at his apparently non-official Superman Homepage. There is even a Superman Webring.

Much of society operates by vested monopoly rights, rather than by merit, and that is one of the serious problems we face in the economic world today -- a lot of people in the economy are not pulling their weight, rather they are plundering the system, and surprise, surprise, as the financial crisis has shown us, the pot at the end of the rainbow has been plundered EMPTY.

A monopoly by itself can not make money, rather, SOMEONE has to do the work, and that someone is usually your average citizen. That is the only way to refill the pot -- by meritorious work or original creativity.

This blog posting at LawPundit relates to still another case involving the dark side of overlengthy law-terminated copyrights and/or eternal trademarks that never expire, outliving their creator and then in the hands of heirs operating as long chilling arms that strongly dampen creation in the artistic field and wrongly put enormous sums of money into the hands of people who had nothing to do with the creation of the original protected product. Why should society give them such rights? There is really no sound Constitutional reason to do so.

The Constitution says that "inventors" should be protected in their exploitation of their inventions, not those who have done nothing. Whatever money a man earns in his lifetime, fine, he should be able to give it to his heirs, we have nothing against that, provided there is a healthy inheritance tax, which finances the legal system that protects those same inheritance rights.

However, permitting heirs to obtain broad legal rights valid AGAINST the entire society as a whole is just legal stupidity and one reason that people with money should never complain about taxes. A large part of those taxes goes to finance a society and a legal superstructure that disproportionately protects vested monopoly interests. People with no property do not need police protection for their belongings. People who are too poor to sue in court do not need a judicial system filled with cases matching one vested interest against the next. Moreover, most companies who profit from the legal and tax system also profit from the fact the tax-supported system educates the people that they hire to do their work for company profit, etc. Don't complain about taxes.

The Superman case in our blog title illustrates well why it would be wise to reduce the length of copyright protection and to legislate a great number of reforms in intellectual property law, including limiting trademarks sensibly.

Given the current state of intellectual property law (IP), which in fact seems to have gotten worse since the SCOTUS Bilski decision cluelessly enabling business method patents, IP is now being used to create the kinds of pervasive monopolies that anti-trust law was once designed to eliminate. Monopolies put society in chains -- to the benefit of a few.

A similar travesty is found for the literary character Tarzan (TM), where copyright protection for the book by Edgar Rice Burroughs has long expired, but where the by now billionaire heirs hold on to the Tarzan (TM) trademark as an eternal golden goose which constantly churns out monopoly cash.

All of this runs contrary to the principle that people should earn their way, not have it handed to them on a silver platter because of bad lawmaking.

What does monopoly ownership of trademarks by grandchildren have to do with the artistic creation that the Constitution is trying to protect? Nothing at all. And these may be the same people who listen to classical music by the great composers -- self-understood of course that their listening enjoyment is not controlled by the heirs of such musical composers. Mozart died a pauper, a sign that our economic systems then and now need(ed) reform. Why should some kinds of intellectual property heirs profit and others not?

Moreover, in terms of the kind of creativity that we desire in society, nothing is more controlling and hence devastating to art or fashion than monopolies. Could a video today portray or an artist today paint Tarzan and Jane in diapers on a boat in the BP Gulf Oil slick with Tarzan yelling loudly in his Tarzan Yell about "Oil!, Oil!" and saying, "Me Tarzan, You Jane: What happened to our Jungle?" If that political statement was not shared by the heirs, they would surely attempt to prohibit that art work -- again, this was not the intended purpose of the U.S. Constitution. Things are totally out of hand in IP.

Superman and Tarzan are two very good examples of (attempted) total control. The Burroughs heirs have even tried to trademark the Tarzan yell, which, logically would make infringers of children who use the yell on a public playground. In Europe, "The Office for Harmonisation in the Internal Market (OHIM) refused the application on appeal."

Somewhere, this greatly overextended intellectual property protection has to stop. "SENSIBLE LIMITS" ought to be a frequent motto of judges in IP cases.

Our legal argument at LawPundit is that once an artist releases his work to the public, it becomes a part of the public domain DE FACTO (IN FACT), although society then grants as a matter of law (DE JURE) -- or should only grant -- intellectual property protection for a limited time to the CREATOR, and this period should be far shorter than the current limits.

Tarzan and Superman or J. K. Rowling's Harry Potter, to take another example, become a part of the life of anyone who reads the respective comics or books or who watches a respective cinema film. To deny someone, for example, the ability to write a book on the influence of Superman, or Tarzan or Harry Potter on THEIR life because of intellectual property protection of the "name" of a character makes a mockery of the law. Such a writer viz. reader may not own ALL of a character, but he owns that part that inheres in her or him -- and for which, he or she has often paid good money out of pocket.

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