Hacker News Reader

Comment by logifail | Hacker News Reader

> [..] creative work that deserves to be copyrighted

As I've grown older I've become less and less convinced that any of our current legal frameworks actually protect the output of "creatives".

Instead, it seems that those with the deepest pockets - <cough> looking at you, Disney(!) - have, over the decades, moulded the system to fit their own purposes, leaving most actual creatives high and dry.

When I read sentences including both "Abigail Disney" and "philanthropist" it makes me want to vomit.

View on HN

> Instead, it seems that those with the deepest pockets - <cough> looking at you, Disney(!)

I think this is mostly a case of survivorship bias. You only read about copyright in the news when it's related to giant well-known corporations or egregious abuse of the law.

The bread and butter uses of copyright benefit millions of authors and artists every day but you never hear about it in the news.

For example, I wrote and self-published two books. While you can read them for free on the web, I still retain the copyright and sell physical copies. Fairly often, someone will rip a copy of the book and try to publish their own (poorly executed) eBooks or print versions. Copyright is what lets me have those taken down.

The trade-off is that a lot of poor people will never hear about your book, or only read a substandard version of it. I've seen official torrents from the owners of the copyright, simply for quality control purposes.

> The trade-off is that a lot of poor people will never hear about your book

There is always a trade-off between accessibility and compensation in creative works. I think the value of copyright is that it gives the author of the work—the one who has the most skin in the game—some agency in picking a point in that trade-off. (For example, I chose to allow anyone to read the books for free on the web, which maximizes accessibility for those who can't afford it, while selling print and eBook copies which enables me to be compensated by those who can.)

You can argue that copyright prevents poor people from accessing works. But that argument presumes a world where the work already exists. Without some ability to reliably predict and control compensation, there are many works that would simply never be made.

You may then argue that if someone really has that creative drive, then they'll make it even without compensation. But that means that only those with independent means will have the luxury of being creative. And the last thing I want to do is put even more cultural control in the hands of the rich.

I agree. Your monetization is kindly, and that deserves respect. The opportunity to create would never be there for many, and the skills involved never refined for many more, if compensation was impossible. You enforce against poorly formatted copies of your work. Derivative creations of your work that might not be transformative enough, but aren't intended to copy your work directly, might not trigger your enforcement? Systems like youtube's contentID are how most people notice copyright enforcement, if I had to guess. Your point on survivorship bias is interesting to think about.

> Derivative creations of your work that might not be transformative enough, but aren't intended to copy your work directly, might not trigger your enforcement?

This is a tricky balancing act and has come into play for me with translations. There are several translations of both of my books, but they have all been done using real publishers with real contracts and stuff.

I've had a number of people volunteer to do community-driven free translations but so far have declined.

Part of being a publicly visible creative person is that my name and identity have a certain reputation attached to them, and that reputation has real value for me both emotionally (it feels good to know people think I'm cool) and economically (a lot of people bought my second book simply because I wrote it). Transformative works that are still explicitly and visibly derived from me run some risk of dilluting or weakening that reputation. (Of course, there is also the chance they can elevate it.) Imagine if, say, a Portuguese fan translation of one of my books has some racial slurs inserted it and now everyone in Portugal thinks of me as "racist author Bob Nystrom".

Since I only have one real identity on this planet, I tend to be cautious about allowing other creative people to visibly build on it, even when they do so with good intentions. Much of this is probably just because I'm a perfectionist.

On the other hand, there is some stuff I've been happy to see: many people have translated the code in the book to other programming languages, and several have done video series' about the book.

> The trade-off is that a lot of poor people will never hear about your book

Is this meant to be bad for poor people or for me, as a creator?

If for poor people - all of the information required to live a relatively good live is available on the internet, free of charge. The vast majority of copyrighted content is entertainment. Nobody is entitled to entertainment.

If for me - I'm ok with that. If someone else isn't - they can reduce the price of their work, self-publish, or release the work (or even an excerpted section of it) as public domain/creative commons.

> I've seen official torrents from the owners of the copyright, simply for quality control purposes.

...which is extremely rare, and not really relevant to the discussion.

> not really relevant to the discussion.

You're on a throwaway, so correct me if I am wrong, but this is your first comment in this discussion? How is it irrelevant enough for you to insist such a thing? Distributing in such a way that illegitimate copies disappear but your margins are affected as if the piracy were there all the same is useful to think about in this discussion, because it has happened and you can study it somewhat.

To your point on copyright, unaffordable things aren't always entertainment, though it would be nice if that were the case. Feeling that the majority of content is frivolous entertainment is just a feeling; a feel-good feeling that trivializes any drawbacks to the copyright system.

At least in the US, you're free to reject copyright and publish your book as public domain if you want more poor people to be able to read it. Most authors just like copyright law and requiring payment for their works though.

You can't copyright a dress, but there's still a fashion industry:

https://www.ted.com/talks/johanna_blakley_lessons_from_fashi...

You actually can. There have been a ton of fashion lawsuits over copyright, and other IP laws like design patents. Here's a couple:

https://www.cnn.com/2023/07/14/business/shein-rico-lawsuit/i...

https://gouchevlaw.com/fashion-designer-roberto-cavalli-sued...

https://www.lofficielusa.com/politics-culture/fashion-lawsui...

> https://www.cnn.com/2023/07/14/business/shein-rico-lawsuit/i...

These are graphic designers alleging that someone copied their exact fabric print design.

> https://gouchevlaw.com/fashion-designer-roberto-cavalli-sued...

These are muralists that claim someone copied their murals as fabric print designs.

> https://www.lofficielusa.com/politics-culture/fashion-lawsui...

This summarizes a bunch of fashion lawsuits including, someone selling NFTs of someone else's handbags, Adidas suing someone making track pants with Adidas-style vertical stripes (which seems like a trademark violation but Adidas lost), Staging a fashion show that blocked someone else's store, one brand buying a lot of stock in another brand, The Hell's Angels suing someone for using their logo, someone getting fired for being an anti-semite, and a couple of counterfeit shoe law suits.

Zero of these even suggest that fashion designers may claim that the shape and style of a dress or other garment that they create is their intellectual property and they have a monopoly on its duplication. Because you can not copyright a dress.

If you have more links, it is your turn to read them first.

> These are graphic designers alleging that someone copied their exact fabric print design.

And why do you think this somehow doesn't apply to the topic under discussion??

Edit: here are two more, https://www.reuters.com/legal/transactional/versace-fashion-... and https://consumerist.com/2008/01/25/diane-von-furstenberg-sue..., but I'm sure you'll try to argue that the specifics aren't what you had in your head...

The second link about about a print, not the dress itself. Kind of like if someone was selling a dress with Barbie on it. The dress isn't copyrighted, but Barbie imagery is and you need a license to use it.

The second is the only interesting and halfway relevant link you have provided. It says Versace was suing another company for ripping off their designs, on the bases of trademark law, it being a trade dress and copyright law.

They would have had grounds on copyright law, but this company didn't just copy one dress it was copying all of their dresses and designs. In any event it wasn't settled because they settled out of court, which means nothing changed, and still to date you can't copyright a dress.

This article about an important Supreme Court ruling in 2017 clarifies the situation:

https://consumerist.com/2017/03/22/supreme-courts-ruling-in-...

1. US copyright law prohibits "useful articles", like clothing, from being copyrighted.

2. However, as that article points out, "decorative features of a uniform should be treated like two-dimensional artwork". Look at the example on that article - it's basically some abstract stripes and triangles that were seen as deserving of copyright protection, much less than a sweatshirt with a pink "Barbie" logo in recognized font on it.

3. Beyond copyright, you can get a design patent on articles of clothing. Christian Louboutin is famous for their red soled shoes as well as their "spike" sneakers, and they're suing other companies making red-soled shoes and sneakers with spikes on them. We'll see how far they get.

In any case, my original point in posting this and the other examples is that the first comment I was replying to, at least to me anyway, was implying that the fashion industry has thrived without the need for IP protections. On the contrary, there are a TON of lawsuits in the fashion industry related to IP protections where one designer is accusing someone else of "ripping off" their designs. The mechanics may not be exactly the same as with written words but the effects are identical.

You can't copyright a dress. You have presented a bunch of articles (that you didn't even read yourself) where artwork associated with a garment such as logos and textile prints may be subject to copyright in certain circumstances. It is not a matter of fashion having the same protections but under different codes. You simply can not copyright a dress. Fashion designers do not have that monopoly of reproduction.

There wasn't really any need for clarification. I and the other poster were just pointing out that you can't copyright a dress. It's as simple as that.

Other types of IP protection are certainly not the same, not are their effects via enforcement.

That last paragraph is self contradictory. If they had grounds on copyright law, then they must have been able to legally copyright their dresses regardless of whether or not they actually went to court. If you can't copyright a dress then they had no grounds under copyright law.

As far as I am aware you can't copyright a dress, unless it is like the banana that got nailed to the wall as art. The most relevant thing would be a design patent.

> If you can't copyright a dress then they had no grounds under copyright law.

Copyright is automatic and they may have just been hoping/assuming it replies. I should have said they may have thought they had grounds under copyright law.

>can't copyright a dress //

That seems highly unlikely to me. What seems most likely is that it's hard to pass the distinctiveness bar for a dress.

Unless you mean "for the fabric shape of a dress alone"? In which case you can get a design patent/registered design.

> That seems highly unlikely to me.

I mean, I provided a reference for my claim.

I'm not sure a person making assertions counts as a reference. I only skimmed the transcript but spotted a couple of errors, this person doesn't appear to be an IPR expert?

Also, I don't feel this is going to get anywhere, the space of "nuance of legislation across all jurisdictions in the World" isn't really conducive to casual conversation.

That said, in the UK our caselaw on fashion is almost nonexistent, but the key rulings are well summarised in [0] at page 8. The bar is high but seems attainable. (A summary of Hensher v Restawhile [1]).

An opinion piece at WIPO [2] suggests it's easier to get copyright on garments in USA, they cite some law, at least, but their conclusion on UK law opposes my position (paraphrasing, they say "garments can't be protected").

My position has not changed.

[0] https://assets.publishing.service.gov.uk/government/uploads/... [1] https://www.cipil.law.cam.ac.uk/virtual-museum/hensher-v-res... [2] https://www.wipo.int/wipo_magazine/en/2014/03/article_0007.h...

Look at Zara's business model.

You can't copyright it, but you can get design protection.

For a millenia or two (at least), creatives have lived on a spectrum between folk production for small, immediate audiences and commercial production for the aristocracy or markets distribution.

Copyright, since its much more recent introduction, is the tool for commercial creative to keep the folk creatives away from their money.

The upside for media consumers is higher production value and grander spectacle, which is pretty cool. Copyright lets producers pour a lot of money into art and that allows for a different kind of work.

But yeah, it’s pretty brutal for the countless folk creatives who see something inspiring and aren’t allowed to do cool things with it. Copyright does indeed work against them.

> it seems that those with the deepest pockets

Trademarks, patents, and copyrights are only as valuable as your willingness to pay a lawyer to confront those who are infringing.

You can have all of the patents, trademarks, and copyrights in the world, but they're useless unless you defend them. Which costs a lot of money.

I'm not sure what the alternative would be, though. We can't do away with the system completely. Disney needs to be able to earn a profit on content they produce otherwise they won't invest in producing content.

I was just thinking that it might be useful to add up how much money has been made by selling fonts since the dawn of time. I suspect that it's on the order of $1 billion. Adobe probably owns a big share of that, followed by various publishing houses, creative institutes, etc.

But that's about 10 cents per person. Why are we so concerned with protecting the profits of a vanishingly small segment of the population to the detriment of billions of other people?

I think that there are some weak points here that we could collectively attack and dismantle to reduce wealth inequality. One of the screws to turn might be copyright law, at least reducing the term from author's lifetime plus 70 years to something reasonable, perhaps 3-5 years with an option to renew for up to 10 years total. Another would be patent law, and certainly the elimination of all patents around software, genes, etc.

Short of that, we could form guilds where one of the conditions is that seeking IP retribution revokes one's membership. Then only do business with people and organizations in the guilds or face consequences, sort of like what happened with Drew Barrymore when she went around SAG/WGA.

And then you realise that this also applies to pretty much every industry and its workers (hooray for lobbying!) and then you get sad.

> When I read sentences including both "Abigail Disney" and "philanthropist" it makes me want to vomit.

Why?

> As I've grown older I've become less and less convinced that any of our current legal frameworks actually protect the output of "creatives".

I think most of "creatives" are just high and dry because most of the output is just not very good. Creative output in a digital world is a winner-take-all scenario, so mediocre artists just get 0 exposure.

If I have limited amount of time to commit to watching something or listening to a song or using a font, I will naturally gravitate to things that are already popular/good and make money. What would help creatives here is a better discovery process, but it's pretty tangential to the legal framework.

I think in this case the situation for fonts isn't such a bad compromise. As it is, BigTypeCompany can't go kicking LittleIndieDesigner who can't afford to go to court because their letter-A looks confusingly similar.

Reply on news.ycombinator.com