[cross-posted at Liberty & Power]
I’ve been to Indianapolis twice recently: last month for a Liberty Fund conference on Zora Neale Hurston, and last weekend for another Liberty Fund conference, this one on Landes and Posner’s Economic Structure of Intellectual Property Law, and held at Liberty Fund’s own offices (and incidentally the first Liberty Fund conference I’ve been to where as many as a third of the participants were nonwhite – a nice change from the usual complexion, pun intended).
As I’ve mentioned before, nearly a third of Liberty & Power’s bloggers were at the first conference. I’ve now gotten the photos developed; these aren’t the highest-quality scans, but they’ll have to do:
L to R: Keith Halderman, Mark Brady, me, David Beito, Jonathan Bean, Wendy McElroy
Just the anarchists (other than me): Mark Brady, Wendy McElroy, David Beito
As for the second conference, a few random notes:
When I mentioned that although the early Tarzan books are out of copyright, they’re still restricted because ERB’s estate holds the trademark to the characters, Tom Bell (check out his online book Intellectual Privilege: Copyright, Common Law, and the Common Good) mentioned that he thought a recent case involving Daystar Technologies rules out using trademark to protect copyright – in which case the ERB business model may be in serious trouble. Anyone else with IP expertise (Stephan?) have any comments?
Milton Thompson (who happens to be the lawyer-agent for Star Trek’s Avery Brooks) mentioned that the performers he works with are less and less interested in controlling copyright and are relying less and less on IP in their business models.
I was delighted to learn that Liberty Fund will be publishing a new translation (by Dennis O’Keefe, translator of Constant’s Principles of Politics) of Molinari’s Soirées. (Though this isn’t necessarily a reason to abandon my own translation-in-progress – if the term “progress” really applies to a project that hasn’t been updated since 2003 – since it would also be nice to have a version available without copyright restrictions.)
Roderick, here are some off-top-of-head comments I posted to a list re this:
In general you can’t use trademark, copyright, or patent to protect each other’s subjects. E.g. patents are for the functional aspects of things; copyright for expressions. So there is the “printed matter” problem with patents–if the novelty relies on a merely original expression of ideas, you can’t patent it–e.g., you can’t patent an audio CD (based on the music on it) b/c the only thing that makes it difference is the expression of ideas on it. OTOH if you have a computer program on a CD, it’s functional “when coupled with a general purpose computer”.
Trademark basically protects an identifier of goods–a “mark” that is associated with your products or services. Unlike copyright, trademark can last forever. I am not very familiar with the interplay between TM and copyright, having focused mostly on patents in my career, but I would imagine Disney could use Mickey Mouse, say, as a symbol to identify its services. This could be a trademark. This means that they can stop other companies from using “Mickey Mouse” in a way that confuses consumers or even if it “dilutes” their trademark. I suppose they could try to stretch this to say that some company playing the older, out of copyright Mickey Mouse movies, is somehow infringing Disney’s trademark. This seems like a stretch to me, and I can imagine there are legal doctrines that step in here and say they are trying to convert hte TM into a copyright but I am not very familiar with it (it’s probably black letter law). In the US at least, however, there is NO prohibition against displaying or showing a company’s trademark, as long as you are truthful and not deceptive, confusing (or dilutive) about it. Thus in the US you often see product comparison ads on TV–Pepsi might say, “We are better than Coke” and show both cans in an ad. I believe this is largely prohibited overseas. The US rule of course makes more sense here. And I believe that you can market, say, game cards and truthfully say “for use with Trivial Pursuit (R)” as long as you are careful not to imply that your cards are authorized by Trivial Pursuit’s makers-you are simply truthfully stating that your cards will work with Trivial Pursuit. Likewise, you can sell a knockoff perfume and say, “Smells similar to Chanel (R)”, without getting in trouble, since you are not deceiving the consumer (OTOH if your perfumed smelled like sheit, then maybe Chanel could sue you for some kind of reverse palming off or dilution or disparagement, bu that’s a separate issue). My point is the fact that you CAN actually reproduce others’ trademarks is yet another reason why it ought not to be extended to cover copyright movies etc.
ERB’s estate has been able to legally halt movies and comic books based on the early (pre-1923) Tarzan and John Carter books.