Posted July 28 2007 - 03:19 AM
Yes, of course they would say something like that rather than, let's say make a comment about "the negligent rights holders/producers who were too lazy (or cheap or ignorant) to bother to renew their copyrights". Or in the case of something like Ozzie and Harriet, never even bothered to have the copyrights registered to begin with. Some gall if you ask me. SFM is still pissed off that they got their asses kicked in court by Daystar Corporation, nee Timeless, in a battle over an early television series called Crusade in Europe. The case went to the Supreme Court and SFM in conjunction with Fox lost, spending millions in the process. Here's a review of the case:
III. Dastar v. Twentieth Century Fox
In 1948, Doubleday copyrighted and published General Dwight D. Eisenhower’s book, Crusade in Europe, which was about the allied campaign in Europe during World War II. Doubleday granted exclusive television rights to an affiliate of Twentieth Century Fox, and Fox arranged for Times, Inc. to produce a television series based on the copyrighted book. The television series, also called Crusade in Europe, was first broadcasted in 1949 with twenty-six episodes. Fox held the copyright.19 Furthermore, in 1975, Doubleday renewed the copyright on the book, Crusade in Europe, but Fox did not renew the copyright on the television series, Crusade in Europe. The copyright on the television series expired in 1977, and the series entered the public domain.20 In 1988, Fox reacquired the television rights in the book,21 but obviously not the copyright, which was lost when the television series entered the public domain.
In 1995, Dastar expanded its product line from music CDs to videos. For the upcoming fiftieth anniversary of World War II’s end, Dastar edited the Crusade in Europe television series, added some new material, and released a video set called World War II Campaign in Europe without attribution.22
In 1998, Twentieth Century Fox and others23 filed suit claiming that Dastar violated the copyright of the book Crusade in Europe and also infringed on the plaintiff’s exclusive rights to reproduce and distribute videos based on the book.24 Plaintiffs further alleged that defendants engaged in reverse passing off under the Lanham Act25 and California’s unfair competition law by misappropriating the Crusade in Europe television series and by falsely identifying themselves as the producers of the series.26 Defendants counterclaimed for intentional and negligent misrepresentation, slander of title, and unfair competition. All counterclaims were eventually dismissed.27
In January 2000, the district court granted the plaintiff’s motion for summary judgment on the three claims.28 A three-day bench trial was held on remedies. The district court granted the maximum amount of statutory damages plus injunctive relief under the Copyright Act.29 In addition, the district court awarded plaintiffs double the profits from the re-released video for reverse passing off under the Lanham Act in order to deter future conduct, and issued a permanent injunction.30 In addition, the district court awarded attorneys’ fees pursuant to the Copyright Act and the Lanham Act.31
The U.S. Court of Appeals for the Ninth Circuit, in an unpublished opinion in 2002, affirmed in part.32 Since Dastar copied, to a large extent, the entire Crusade in Europe television series, Dastar committed a "bodily appropriation" of this series. Thus, the appellate court affirmed the summary judgment on reverse passing off under the Lanham Act.33 The court also affirmed the district court’s ruling on profits under the Lanham Act because the trademark infringement was "deliberate and willful," credits to the original series were not included, and Dastar continued to market the series even after being informed of the possible trademark violation.34 According to the appellate court, the district court did not abuse its discretion in doubling the profits under the Lanham Act.35 Furthermore, the court rejected the argument that the damages duplicate the statutory damages under the Copyright Act.36 The copyright infringement claim was remanded for trial. Since the attorneys’ fees were awarded in part based on the copyright claim, these too were remanded for recalculation after the copyright claim was resolved.
The U.S. Supreme Court granted the petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.37 In a unanimous decision authored by Justice Scalia in which Justice Breyer took no part, the U.S. Supreme Court held on June 2, 2003, that the Lanham Act does not prevent the unaccredited copying of an uncopyrighted work, thus reversing the appellate court and remanding the case.38 According to the Court, the Lanham Act "was intended to make ‘actionable the deceptive and misleading use of marks,’ and ‘to protect persons engaged in ... commerce against unfair competition.’"39 One section of the Lanham Act, however, extends traditional trademark protection and creates a federal remedy against one "who use[s] in commerce either ‘a false designation of origin, or any false description or representation’ in connection with ‘any goods or services.’"40 The court stated that it must decide what the origin of goods means under the Lanham Act.41
The definition of "origin" is essential to determine whether Dastar made a false designation of origin in violation of the Lanham Act. If Dastar merely repackages the television series as videos, then Dastar violated the Lanham Act. If Dastar took a work in the public domain, copied it, modified it, and produced its own series, then Dastar is not liable. In other words, according to the Court, if origin refers only to the manufacturer or producer of the actual product, then Dastar is the origin, but if origin includes the creator of the underlying work, then someone else is the origin.42
The court examined the Webster’s New International Dictionary definition of "origin," which is the "fact or process of coming into being from a source."43 The court thought that the most natural understanding of origin of goods is the producer of the tangible product sold in the marketplace, which is Dastar.44 The Court concluded that "reading the phrase ‘origin of goods’ in accordance with the Act’s common-law foundations…and in light of the copyright and patent laws," that "origin" refers to "the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods."45 Thus, Dastar was the origin of the goods, and the Lanham Act claim against them cannot prevail.46
In the Court’s view, "origin of goods" does not connote the person or entity that goods "embody or contain."47 To give special treatment to communication products, which have value for the intellectual content instead of the physical characteristics, would cause the Lanham Act to conflict with the Copyright Act.48 Once a patent or copyright monopoly has expired, the work passes into the public domain,49 thus the encouragement to innovate is balanced against the public’s right in those works.
There are problems if the term "origin" were further extended. When Congress chose to extend the right of attribution, it did so carefully and deliberately in the Visual Artists Rights Act of 1990,50 unlike the Lanham Act’s ambiguous use of origin.51 Furthermore, giving "origin" a broader meaning under the Lanham Act would pose further practical problems, such as determining the outer limit of "origin."52 Manufacturers would be in a lose-lose situation; they could be liable either for crediting a work or for not crediting a work.53 In other words, if the Court had expanded the definition of "origin," a company like Dastar could be liable if the original creator was not credited. Additionally, there could also be a Lanham Act violation if the creator were credited and there was a subsequent Lanham Act suit for false designation of origin since the original creator did not assent to the repackaging. Thus, the Court did not create a Lanham Act cause of action for "plagiarism."54
The Supreme Court in Dastar v. Twentieth Century Fox did not allow Fox to recover under trademark law what was voluntarily relinquished under the Lanham Act.55 The very simple solution to this problem is to maintain copyright for the full statutory period. This period has been extended retroactively for an additional twenty years, and now lasts for either the author’s life plus seventy years, ninety-five years from publication, or one hundred twenty years from creation, whichever comes first for pseudonymous, anonymous, or works made for hire.56 In this sense, this author supports the Court’s conclusion.
In another sense, this author also supports the Court’s conclusion. The Constitution allows Congress to enact laws to grant copyright protection for limited times.57 To extend protection beyond those limited times by getting through trademark what is unavailable through copyright, or allow to expire under copyright as in Dastar, would circumvent this Constitutional requirement.
A very interesting ethical dilemma arises from this case, which supports the statement that things deemed ethical are not always legal, and vice versa. Dastar, a company that acted aggressively in litigation58 and used another’s work without attribution, is not liable under the Lanham Act or under copyright law, since the copyright lapsed. In contrast, if a college student used another’s work without attribution in a research paper, this would be considered plagiarism under university codes and handbooks. Inevitably, this double standard sends the conflicting message that corporations are legally entitled to do what college students are prohibited from doing under academic codes. Nevertheless, the Dastar result is due in large part because Fox did not maintain the copyright in the television series. As the Court stated, "[t]he creative talent of the sort that lay behind the campaign’s videos is not left with protection."59
From a business viewpoint, one may want to give attribution to a communicative project, which is in the public domain. This may make the new product even more valuable, so long as no intellectual property under protection is taken. In conclusion, Dastar has seemingly gotten away with what could be considered plagiarism in the academic setting, because copyrights were not maintained in otherwise protected works. In other words, users of a work are always free to grant attribution where credit is due, even if credit is not due legally.
But getting back to the subject at hand, the cut Real McCoys, here's what most likely happened. SFM, which hadn't had any sales on the show in at least a decade, going back to the 80s when 16mm syndication prints were sent to the stations, sold the show to TNN. They then asked TNN, as is the common practice for syndicators, at what length they wanted the shows to run. Now, not being a major studio nor really have the foresight to know about the DVD on TV boom to come, SFM spent the money to have the 35mm prints or negatives cleaned up and transfered to tape, editing the episodes to the desired running time that TNN requested. Unlike a major studio, which might have the sense to run 2 copies, a complete one and an edited one, SFM no doubt just ran off the edited one at the running time TNN asked for. And now here we are, several years later, with the DVD explosion, and SFM did not want to spend the money to go back and re-transfer 224 episodes. They are gambling that the majority of the buying public won't know the difference and that they can get away with it. It's a similar stunt to what they tried with Make Room for Daddy and failed with. Hopefully enough people will contact Infinity/Critic's Choice/Falcon Group or whatever they are calling themselves these days and complain about this, stating that they either will not purchase this set or that they intended to buy future sets but now will not. Forget SFM, they got the hefty licensing fee already so it doesn't matter to them. Go after the company that's releasing and selling the series as they are the ones who will lose money if it doesn't sell.