Copyright Law in the 1880s

If you do a Google search on "history of copyright" you get a lot of hits. This one looks like it might be helpful http://www.arl.org/info/frn/copy/timeline.html

Scribhneoir said:

I know that by today's copyright laws a title cannot be copyrighted. Was this also the case in the 1880s?

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My first instinct on this was yes, titles have always been uncopyrightable, and that appears to be confirmed by a glance at p. 97 of "Understanding Copyright Law" (published by LexisNexis legal publishers), which I own because I'm a law student and I took intellectual property last semester. Titles are "writings that have traditionally been excluded from protection under US copyright law," and under the normal legal analysis, titles "remain outside copyright protection until given explicit statutory recognition," i.e. they're not copyrightable until/unless Congress passes a law that specifically says titles are covered; Congress has never done so, which means that titles cannot ever have been covered. The reason they're excluded is "their de minimis nature," i.e. the fact that they're so short: they're lumped together with short phrases and trademarked words/terms as writings that cannot be copyrighted.

Just a thought: maybe they said "copyrighted" when they really meant trademarked. Copyright only applies to tangible items - books, scripts, sheet music, recordings, etc. The name of a show wouldn't be copyrightable even if titles of books could be. However, I'm pretty sure the name of a show can be trademarked.

Trademarked.

Peggy said:

Just a thought: maybe they said "copyrighted" when they really meant trademarked. Copyright only applies to tangible items - books, scripts, sheet music, recordings, etc. The name of a show wouldn't be copyrightable even if titles of books could be. However, I'm pretty sure the name of a show can be trademarked.

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This was my first thought, as well. The names of shows can certainly be trademarked today, and always are. Whether or not they were in 1880 would take a little research. But federal trademarks came into being in 1870, so trademark protection was certainly around when Buffalo Bill started his show in 1883.

Do trademarks expire after a certain amount of time if they are not renewed?

Tish Davidson said:

Do trademarks expire after a certain amount of time if they are not renewed?

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I don't know how it was in the 1880's, but a few years ago, the last time I dealt with trademarks, they only lasted ten years, but could be renewed an unlimited number of times. So if they aren't renewed, ten years is the expiration date.

Apparently this is still true. From the U.S. Trademark site.

For a trademark registration to remain valid, an Affidavit of Use ("Section 8 Affidavit") must be filed: (1) between the fifth and sixth year following registration, and (2) within the year before the end of every ten-year period after the date of registration. The registrant may file the affidavit within a grace period of six months after the end of the sixth or tenth year, with payment of an additional fee.

The registrant must also file a §9 renewal application within the year before the expiration date of a registration, or within a grace period of six months after the expiration date, with payment of an additional fee.

Assuming that an affidavit of use is timely filed, registrations granted PRIOR to November 16, 1989 have a 20-year term, and registrations granted on or after November 16, 1989 have a 10-year term.

This is also true for the renewal periods; renewals granted PRIOR to November 16, 1989 have a 20-year term, and renewals granted on or after November 16, 1989 have a 10-year term.


Trademarks can also be taken away from an owner if that owner fails to defend the trademark. Many trademarks have fallen into public domain because others started using them, and the trademark owner did nothing to stop the person from using it.

This is one reason it's important to capitalize name brands in fiction, and to include the trademark symbol when you write nonfiction. If you don't, and the trademark owner learns of it, the law says he or she must defend ownership. This usually begins with a strongly worded letter from a lawyer, and escalates from there.

But you have to be careful. Just because a trademark has expired does not necessarily means you can use it. If it's still in use by someone, they can be said to have a "common law" right to it's use.

If, for example, someone has a restaurant with the formerly trademarked name of "Big Bob's Barbecue," you probably will not be allowed to use this name for a business of your own. This is often true even if the name was never trademarked.

I imagine there is a database of trademarks - even expired ones - that would answer the question one way or another.

Database

Peggy said:

I imagine there is a database of trademarks - even expired ones - that would answer the question one way or another.

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Only if you're lucky. It's easy to go through the database and find current trademarks, and recently expired ones, but it takes a lot of luck to find anything that expired decades ago. There's often no mention of old, expired trademarks, even when historical information tells you there certainly was one.

Peggy said:

I imagine there is a database of trademarks - even expired ones - that would answer the question one way or another.

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You can search trademarks at http://www.uspto.gov/main/trademarks.htm (The Search function is at top middle). The expired ones don't go back past the early 1980's. Online, at least. I searched for a Buffalo Bill trademark, and there are several, but all registered in the past few years.

The first copyright law in the United States was passed in 1790, according to the copyright office. Here's the law that was passed: http://www.copyright.gov/history/1790act.pdf

And this has some more historical information: http://www.copyright.gov/history/index.html