Intellectual Properties and the Protection of Fictional Characters: Copyright, Trademark, or Unfair Competition?

By Dorothy J. Howell | Go to book overview

3
Copyright Protection in
the Courts: Defenses to
Copyright Infringement

MATERIAL IN THE PUBLIC DOMAIN

Assuming it cannot be shown that the allegedly infringing work actually derives from an independent source, the first line of defense to copyright infringement is a demonstration that the plaintiffs work is not subject to copyright. All such materials are said to be in the public domain. Besides being in the public domain ab initio, works once subject to copyright can lapse into the public domain by operation of law. This can prove to be a tricky situation, as illustrated when an individual sought to exploit a film version of Pygmalion some fifty years after George Bernard Shaw copyrighted the original dramatic work. 1

Shaw had copyrighted Pygmalion in 1913. That copyright was renewed in 1941 and extended by Congress to 1988. In 1938 the derivative film Pygmalion was made under a licensing agreement with Shaw. Copyright in the film expired in 1966. Subsequently the proprietors of Shaw's original copyright licensed an exclusive distributor of the film, and still later the defendant rented it. The defendant argued with a certain ap

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