March 7, 2013
Much Ado about the Public Domain

Horrors! Someone is wrong on the internet in actual court documents that they’ve been paid thousands of dollars to draft and file!


Whatever you think of 50 Shades of Grey, we can all agree that E.L. James’ posting of it to FFN a few years back did not put it in the “Public Domain”, which is a very specific copyright term with a very specific definition.

And now, one central issue of the highly publicized (and hilarious, for a number of reasons) Smash Pictures counterclaim against Universal over Smash’s “porn parody” of 50 Shades is Smash Picture’s claim that 50 Shades is  free for anyone to use because James posted “Masters of the Universe” online (at FFN and elsewhere), and that puts the work in the Public Domain.

Given how litigious the porn community is (seriously, some of the biggest and most cited copyright cases started because the porn community got hacked off that their material was leaking -heh- out over the internet.), their lawyers really should know better on this one. We’re not sure if Smash’s lawyers really think this is a valid argument, or if they’re just making it for publicity purposes. But making it, they are.

So how does something become Public Domain?

Here’s the definition from Black’s Law Dictionary:
  1. government owned land
  2. the universe of inventions and creative works that are not protected by intellectual property rights and are therefore available for anyone to use without charge.
Obviously, definition #2 is the one we’re going to look at here. Notice that it’s a definition of exclusion: of all the creative works and inventions, the ones in the public domain are the ones NOT protected by copyright, trademark or patent; we’re only looking at the copyright in this post, thought.

So to understand what the public domain is, we need a mini-primer on how copyright law works (these days, in the US):

  1. Copyright exists to protect original ideas that have been “fixed” - for text, that means it’s been written down, or typed and saved on digital media. It doesn’t protect the idea itself, just the expression. Theoretically, if two people working independently write exactly the same paragraph, both will hold valid copyrights in the work that they created.
  2. "Original" in copyright law only means that the expression of an idea originated from the artist - not that it is something new that has never been done before.
  3. Copyright exists as soon as you put pen to paper, or even do a keysmash. You don’t need to “buy” your copyright from the US Copyright office. There are other benefits to registering your copyright, but whether you have or not, your copyright is still valid. That’s been the law since the late 70s.

What this means to you, as a user of the internet, is that yes, you still own the copyright in your work, even if it is posted online for other people to access. Even if it’s based on something someone else wrote, you hold a copyright in your original, specific words. Online and available does not equal Public Domain.

If you understand this, you are ahead of many people and corporations who are exploiting this misdefinition for their own gain.

Yes, you can release works into the Public Domain. But you have to do so deliberately; a statement above or below the text that says “I release this work into the public domain; I hold no copyright in it!” would be sufficient, but if you don’t include language similar to that, then just posting it to an archive or your own website - or someone else’s (like LJ or tumblr or twitter) doesn’t make it “Public Domain”. You can see an example of “I release thee!” language here

Yes, all works (should) eventually enter the Public Domain, but the time frame is controlled by US law. So it’s also irrelevant to Smash’s arguments.

We’re a little frustrated by Smash’s court papers, because in the mid-90s, back when blinky text reigned and you had to pay for AOL by the hour, everyone who knew even a smidge about copyright law knew that “posting or other forms of ‘publication’ don’t divest you of your copyright.”

We’re a lot frustrated because when bad lawyers make bad arguments, awesome people who don’t know the specifics of US copyright law believe them.
So please, let your takeaway from Smash’s indecent (read: grossly
improper, offensive, unseemly) papers be:

  1. muninnhuginn reblogged this from createourownlight
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  5. createourownlight reblogged this from sabaceanbabe and added:
    I don’t know anything about IP law (was never covered in any of my studies) but… most ff writers on would put a...
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  8. heidi8 reblogged this from fyeahcopyright and added:
    Further to my post earlier in the week about this case; and DH managed to get me the court filings so I’m having a lot...
  9. chicagoartnerd reblogged this from clio-jlh and added:
    HERE HERE. Also disney completely fucked over public domain by extending the time period a person can hold copyrighted...
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