As a writer and photographer, I’m often territorial about my words and images, so I can understand any creative person getting huffy or even litigious when their intellectual property is used without permission. If I want some pithy quotes, I use the words of a long-dead people, always crediting them, of course.
I designed a greeting card using a photograph I took of old books my mother has collected. I added some quotes from five long-dead authors and philosophers about books and then posted the card on a Print on Demand (POD) site where I have many products. The card is to be a small gift for my fellow book club members (Shhh, don’t tell them.)
A few days later, I received an email from the POD site informing me that my “design contains an image or text that infringes on intellectual
property rights. We have been contacted by the intellectual property right holder and at their request we will be removing your product from …’s Marketplace due to intellectual property claims.”
There was no clue which element might have offended, so I pressed the POD site to find out. Was it one of the publishers listed on the book spines in the photograph? I couldn’t imagine that it would be any of the people I quoted. They’d all been dead at least seventy-five years, when copyrights expire. I realize that copyright issues are much more complicated than that (after all, lawyers are involved) and some copyrights can be renewed. I’ve recently learned that even many versions of the Bible are copyrighted. The King James version, however, is in the public domain.
A plaque featuring Mark Twain's words about Australia is on Writers Walk on Circular Quay of Sydney Harbor in Sydney, Australia. Somehow I must have known I'd meet up with Mark Twain again when I took this photograph.
This was the advice I’d been given about Fair Use. “Public domain works are works whose copyrights were issued before 1923. Many authors choose to use quotes only from people who have been dead more than seventy-five years because their quotes are now considered “Fair Use” under the public domain. Copyrights are good for the duration of the author’s life and for seventy-five years beyond their death. It is generally safe to use quotes from authors who died 1936 or before.”
The POD site fingered the complainer: Mark Twain, or, more accurately, the representatives of Mark Twain. “We have been contacted by the licensing company (I won’t name them) who represent Mark Twain, and at their request, have removed the product from the … Marketplace.”
I went to the Mark Twain Rep site where I read: “We work with companies around the world who wish to use the name or likeness of Mark Twain in any commercial fashion. The words and the signature “Mark Twain” are trademarks owned and protected by the Estate of Mark Twain. In addition, the image, name, and voice of Mark Twain is a protectable property right owned by the Estate of Mark Twain. Any use of the above, without the express written consent of the Estate of Mark Twain is strictly prohibited.”
Since I make no money from this blog, I hope Twain’s representatives don’t hunt me down here. I’m not even putting Mark Twain or his real name Samuel Clemons in the tags.
Mark Twain was very concerned about protecting his work from pirates, even though he also fussed over nitpicking copyright laws. He wanted the profits from his works — and he was sure there would be plenty of them — to continue to go to his daughters after his death. In Twain’s day, copyright protection expired after 42 years.
Twain is one of the most widely known authors in the world and is still kicking up a fuss today. A publisher recently republished a politically correct version of “The Adventures of Huckleberry Finn” by substituting the word slave for the N word, which provoked a lot of discussion — and more sales.
In November 2010, the first of three volumes of Twain’s autobiography were published complete and unexpurgated for the first time by the Mark Twain Project a hundred years after Twain’s death. Twain had said that he wanted to suppress the publication of some of his more biting comments for a hundred years, but Twain shrewdly also knew that this new version would start the clock ticking on new copyright protection.
Here are two discussions about Twain and copyright:
Mark Twain’s plans to compete with copyright “pirates” (in 1906)
The Mark Twain Project’s Discussion of Copyright and Permissions.
About the Politically Correct Version of “The Adventures of Huckleberry Finn.”
Here’s a link to the revised greeting card minus the Mark Twain quote. I did use a quote from Abraham Lincoln and another from Kenkō Yoshida (or Yoshida Kenkō), a Japanese Buddhist monk, who died around 1350. I think I’m safe there, but you never know.
“A day is coming, when, in the eye of the law, literary property will be as sacred as whisky, or any other of the necessaries of life.” ~ Mark Twain ~
I’m sure the people that claim to own a “trademark” on Mark Twain’s quotations deserve every penny. Twain was clever enough to say the things in the first place, but they were clever enough to trademark those things. Yeah, that’s about the same.
The whole game is rigged in favor of there always being something to sell. The free exchange of ideas is a distant second. Our culture is very much about profit, greed, capitalism and consumption. The “estate” of Mark Twain is just doing their part to further those ideals.
Personally, I don’t see how they can get away with it. Like you, I’ve always believed that copyrights expire 75 years after the owner’s death. Does expiration mean that the first person who comes along and trademarks something that is now in the public domain somehow gets exclusive rights from now on? I fail to see how that could be legally possible.
I do understand that derivative works can by copyrighted. For example, an old piece of music like Wine, Women and Song by Johann Strauss II in 1869 may be in the public domain now, but if I make a recording of it, my performance can be copyrighted for a long time to come.
The man has been dead over 100 years. I don’t see any way his quotations are not in the public domain. Anything other than that is just unworthy weasels profiting on the coattails of someone else.
In the Mark Twain Project link, it’s explained how Twain’s words can still be copyrighted, although it does say that much is in the public domain and available for free use. Part of what initiates a new copyright is that new material is added to the old, just as you mentioned, and which is why the newly issued autobiography is copyrighted even though much is old material. This was part of Twain’s tactic. The man was brilliant, but come on, Samuel Clemons, give us a break!
The Twain representative that contacted my POD site was not the Mark Twain Project but another official Twain company profiting from Twain’s works, voice and images. I think the money goes to the heirs. I’m not giving them free advertising by including their website. The quote I used was probably in the public domain, but this group probably bullies anyone who uses a Twain quote in a commercial manner, even if it’s for nickel and dimes in my case. No one wants to be sued.
A spooky thing happened right after I posted this blog post. I looked at my new Kindle and saw Mark Twain’s image as the screen saver! I hadn’t seen him there before. Authors rotate on the screen. The last author I saw on the screen was Virginia Woolf, I think. I took a photograph of Twain on the screen, but I’m not posting it. Twain and I are having a spat. Did Amazon have to pay for Twain’s portrait to be part of the screen saver parade?
Thanks for commenting! Cathy
This whole subject is one that anyone has IPs has to be increasingly concerned about. My human is an author and he says the exploitation of IP is increasing at a geometric rate – largely due to capture technology and the (gasp) Net. Where this will end up is any body’s guess, but as of now it has all the stability of that nuke plant in Japan. (no humor intended)
Sandy
http://www.sandysays1.wordpress.com
This subject is an interesting problem. I myself own the IP rights to a product, which may or may not some day benefit my children or grand children. . I am also very passionate about my products and my name and I totally agree that IP rights should be protected. But this seems to be a little ridiculous to me. The laws are becoming blurred, like everything in life. It’s not as if you are trying to steal money from the Twain estate for goodness sakes! Look at the legal battles over color. People are suing over color for goodness sakes. Starbucks is GREEN, T-Mobile is MAGENTA, Cola is RED, etc.. I can only assume that some one is making a profit on this whole new stupid trend!
Cathy
I’ve been more cautious about how and which photographs I post, knowing that they can be so easily downloaded, because I use my photography in products and want exclusive use of them, at least for a little while. But I agree that Twain’s long reach is ridiculous and that copyrighting colors is INSANE. My university has tried to copyright our school colors of crimson and blue when used with the word Kansas. So you can’t use KANSAS in those colors? Nuts! And now Charlie Sheen wants to copyright his sayings like “Winning D’uh.” Too late, Charlie, I think we’re over that already
This is all a bit crazy, but when money is involved that’s to be expected. If only Mark Twain had lived long enough to see this play out, I’m sure he’d have had some pithy comments. I’m still waiting for the Mark Twain action figure.
I was even more confused when I went to the Z site where my product was yanked and did a search for “Mark Twain” and saw scores of other Mark Twain products using his images and quotes from dozens of artists. I can’t believe all of those people were granted permission and paid royalty money because the profits just aren’t there to make that investment. I wrote to Z, asking “What gives?” They replied with a verbal shrug, kind of like if nobody complains, we don’t do anything. Oh, well. Now I am forced to create my own pithy sayings. Cathy
All of these comments certainly make the point of how difficult it is to police, enforce, & determine what is infringement and what isn’t. As an artist, it’s extremely maddening to me! Who is determining what is allowable or not? Once again and as usual Cathy, you are the means to many incredible and intellectual conversations. Thank goodness for bloggers like you!
Although I didn’t use Mark Twain as a tag, it didn’t take long before other disgruntled artists and writers wrestling with Twain’s minions discovered my post. (See link.) I’m still baffled that so many Twain-marked items remain in the marketplace that probably did not pay any fees while other products (like mine) were yanked almost immediately.
http://forum.zazzle.com/create/products_disappeared_copyright
Something tells me you could probably do quite well at creating your own pithy sayings. And you’re more than welcome to any of mine.
Oh I really enjoyed reading this… so did you redo the art work slapping it with a black electric tape warning radiation symbol over the offending treasure? I love the Pop Artist’s ways of dealing with such snobbery (and as an artist and writer myself I use this term with great focus) – intellectual snobbery has a way of attracting much attention, and usually not the intended variety… His Highness King of the Pop said something I feel really puts it all into a bright focus. “I suppose I have a really loose interpretation of “work” because I think that just being alive is so much work at something you don’t always want to do. Being born is like being kidnapped. And then sold into slavery. People are working every minute. The machinery is always going. Even when you sleep. ” Andy Warhol.
Your art when its born is very much yours but it is something that is born into slavery and we work it and own it to death sometimes. I often wonder what would happen if like in the latest movie Tron things were just put out there for free…would be totally melt down into a savage society of hacks and barbaric usery or would it all be like Star Trek, no money, no hunger and disease almost a thing of the past. Impossible dreams but I love that you made me day dream them dear Catherine. Miss you. Thanks for the smile and the intellectual property mind massage. xo
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