Copyright

A copyright is the (usually exclusive) right to copy, perform and distribute a work that is an original expression of a idea for a limited period of time. The owner of a copyright can be an individual, a collective or a corporation. The default owner of the copyright is the creator of the work; however, under United States law, copyright can be transferred or, if the creator was creating his work within the boundaries of a work-for-hire contract, belongs to his employer depending on the exact conditions of the contract.

In the context of the Transformers brand, Hasbro and TakaraTomy are the main copyright holders for their respective markets, and they often even act as representatives of the other one in their markets. For example, an American who violates the copyright of something that technically belongs to TakaraTomy will have to deal with Hasbro, who will act on TakaraTomy's behalf. Since most official Transformers-related works are specifically created under work-for-hire conditions, there are very few relevant things Hasbro and/or Takara don't hold the copyrights to, and they will try to amend that as well.

A copyright is not the same thing as a trademark. Since copyrights affect original expression of ideas, it is generally impossible to "copyright" a name, term or slogan, otherwise the simple act of "copying" (i.e. writing it down in a public venue, such as an internet message board) or "performing" it (i.e. saying it aloud in public) would amount to copyright infringement. Names, terms and slogans are protected as trademarks, which are only relevant in commercial contexts. Graphics and logos can be protected as both trademarks and copyrights. Unlike trademark infringement, copyright infringement can be committed by anyone; however, unlike trademark infringement, where the owner has to act as he might otherwise lose his trademark, it is up the owner of a copyright to decide whether he wants to pursue a particular instance of infringement or not. Compared to other companies, Hasbro and TakaraTomy have traditionally shown to be very lenient in this regard when it comes to taking legal actions against their own fans.

Copyright history

The concept of intellectual property rights is a relatively new one. During the Middle Ages, nobody would have thought of owning the sole rights to their intellectual works. Stealing a book was considered a crime (which it still is today), but copying a book and leaving the original with its rightful owner was not. Likewise, any sort of music was considered free, and the composers were usually unknown. It wasn't until industrial mass production of creative works came about that a "reproduction monopoly" was established. By the 19th century, many developed countries had their own copyright laws (or comparable concepts) in effect, but those differed widely between the individual countries. In many instances, the creator of a work specifically had to register his work to apply for copyright protection. It wasn't until 1886 that the Berne Convention for the Protection of Literary and Artistic Works (commonly referred to simply as the "Berne Convention"), held in Berne, Switzerland, established an internationally agreed upon, more or less uniform copyright regulation. Any country that had signed the Berne Convention agreed to respect the copyrights of works created in other countries that had also signed it. In addition, copyright protection became an automated process that did not require explicit registration. One of the countries that did not sign the Berne Convention until 1988 (!) was the United States, which is why works still had to be registered to be protected by copyright until Congress passed a law in 1976 that made registration unnecessary (though registration still comes with additional benefits to this very day). The United States also originally required copyright to be renewed after the original protection term (28 years) had ended lest it would fall into the public domain; this was automated in 1992.

The purpose of copyright is to entice people to create works and share them with the world. In return, they are granted exclusive rights to decide on any uses and reproductions of their work. Essentially, it is a trade-off: Share your work with the world (instead of keeping it for yourself), and you get to decide when and how it is used, published or performed for a public audience (including the right to demand monetary compensation). The idea is that copyright protection expires after a certain period of time, after which the work irrevocably falls into the public domain and can therefore be copied, performed and published by anyone without requiring permission or payment.

The length of the copyright protection term has been extended several times. One of the commonly accused culprits is Disney, who lobby Congress to pass a law that extends the copyright protection term whenever Steamboat Willie is in danger of falling into the public domain. Sonny Bono, a former singer and later congressman, also pushed hard for one of these extensions, which is therefore also known as the "Sonny Bono Copyright Term Extension Act". As far as Bono was concerned, copyright protection should last "forever minus one day", which is in broad contrast to the original purpose of copyright, which did intend for the creator of a work and maybe his heirs to benefit from the revenues generated by the work in question, but certainly not multiple generations of descendants. Currently, copyright protection for works created in or after 1978 lasts for 70 years after the death of the author; work-for-hire creations (see below for more) are protected for 120 years after creation or 95 years after publication, whichever is shorter. The protection for works published or registered before 1978 currently lasts for 95 years starting with the date of publication as long as the copyright was renewed during the 28th year following the work's publication. That means Steamboat Willie is currently protected by copyright until 2023 (unless the law is changed again), although some people claim that it has already fallen into the public domain. Good luck taking Disney to court over this, folks. Other countries have their own copyright terms, but the duration as been extended to similar lengths as in the US pretty much all over the world over the years.

Just to illustrate how long copyright protection lasts these days: The song Happy Birthday to You was composed in 1893 (originally named "Good Morning To All"), with the lyrics written in or prior to 1912 and registered for copyright in 1935. Currently, the Warner Music Group claims ownership of the song, which (with its full lyrics) won't fall into the public domain until 2030 in the USA (2016/17 in the European Union), and Warner still continues to make millions in annual revenue from its use in works such as movies or TV shows. It should be noted, however, that Warner's copyright claims are contested for various reasons.

Modern copyright basics

Any time an original work is created that is an expression of one or more ideas, it is automatically protected by copyright. Ideas themselves cannot be copyrighted; for example, the basic concept "a robot that transforms converts into something else" cannot be copyrighted by itself, neither in terms of toys (anyone can create and release their own transforming toy robots without necessarily committing copyright infringement) nor fiction (anyone can write and publish a story that includes transforming robots without necessarily committing copyright infringement). It is the specific expression of this idea that will be covered by copyright. The limitation for whether something is specific enough to count as on original work covered by copyright or not is known as the threshold of originality. For example, Generation 1 Optimus Prime's toy is protected by copyright, and the same applies to the backstory of the Transformers lore as originally developed by Marvel (alien robots from the planet Cybertron) and the specific stories told in comics, cartoons, video games and movies. What matters are not specific details by themselves, but the work as a whole. The more similar someone else's work is to these specific works, the more likely he will be found guilty of copyright infringement. The more vague the similarities are, or the more general the idea he has copied, the less likely he will be convicted. (It's not really possible to quantify similarities in percents, though.)

The default owner of a copyright is the creator of the work. If a work is created as a group effort by several people, they share the copyright to the work, or hold the copyright to certain parts of it. For example, if Jim composes a song and Bill writes lyrics to go along with the tune, Jim owns the copyright to the melody (which includes the right to reproduce written notes!), whereas Jim owns the copyright to the lyrics (which also includes written reproductions). If they shared the workload for one or two steps, they share the copyright and need to reach an agreement when it comes to releasing or licensing their shared work. It is also possible to create a work under a work-for-hire contract for a company, which is the default in the American entertainment industry (creator-owned works are the exception rather than the rule). Anything created under the conditions of that contract is copyrighted to the company. When Hasbro assigned Marvel to develop a backstory for the then upcoming new Transformers series, Marvel was working under a work-for-hire contract for Hasbro, and Marvel's employees were working under a work-for-hire contract for Marvel. That means any stories, characters and concepts they created within the boundaries of their contracts were automatically copyrighted to Hasbro, not to Marvel or the individual creators. Marvel tried to circumvent that eventuality for a few characters due to a loophole in the contract, however (see below for more details). It is also possible to transfer copyright ownership to a new owner by means of a contract. For example, when Hasbro acquired the license to sell Takara's Diaclone and Micro Change toys on the United States market under the name The Transformers, they became the de facto copyright holder to the toys for the US market.

Infringement and defending copyrights

Any unauthorized use of a work that is protected by copyright constitutes copyright infringement, and can result in legal prosecution. A common misconception is that "anything that can be found on the internet is free". Any images found on the internet are by default protected by copyright, and therefore cannot legally be copied and republished without permission. Exceptions are works that are in the public domain, either because the copyright term has expired, the work has been created by an employee of the United States government and military within the boundaries of their employment (those are in the public domain by default), or because the creator has deliberately released his work into the public domain (which is irrevocable). There are also specific licenses (Creative Commons, Copyleft, GNU General Public License etc.) which allow individuals to use someone else's work without specific permission as long as the conditions of the license are respected (e.g. identifying the creator by name, non-commercial use only, etc.). However, even though any unauthorized republication of a promotional image depicting Optimus Prime constitutes a copyright violation (which means pretty much any internet fansite is full of copyright violations), it is ultimately up to the copyright holder to decide whether he wants to legally pursue a specific instance of copyright violation or not. Unlike trademarks, looking the other way and pretending not to notice a copyright violation does not put the owner in danger of losing his intellectual property.

An exemption is a concept known as "fair use" that exists in United States copyright law, but is legally unknown in many other countries. "Fair use" basically constitutes that using a reasonable excerpt of someone else's work (a small-scale version of an image, an excerpt from a text etc.) within the context of a new, original work does not constitute a copyright violation depending on the context of intended use. Non-profit informational purposes are a popular reason to invoke fair use. Criticism and parodies of the work itself are also generally covered by fair use; however, the new work in whose context the copyrighted work is used must contain a certain amount of originality. Simply showing a scene from a movie does not constitute fair use; showing a scene from a movie and pointing out the filmmaking techniques used in the creation of the scene, commenting on the effect of the scene on its target audience or making fun of flaws in the scripting, set decoration, performance and direction of the scene would be more likely to fall under the fair use exemption. Note that "fair use" is often invoked by internet fan sites to excuse massive amounts of copyright violations—the conditions for when "fair use" applies are actually a lot stricter than is commonly believed.

Hasbro and TakaraTomy have a long history of being very lenient when it comes to the fans of their brand. The owners of Asterix are known to be particularly rigid when it comes to defending their intellectual property (especially in Europe, where copyright law is even more rigid than in the USA in many regards). Compared to that, Hasbro and TakaraTomy's approach appears to be based on several questions: Is the copyright violator acting in bad faith? Does the copyright violator make a profit? Does the copyright violation reasonably cause actual (instead of just purely hypothetical) damage? Does the damage averted by legal measures outweigh the the efforts and expenses for those legal measures? Do legal measures hurt the public image by appearing as an evil corporation that takes its own customers to court? Note that there is a large leeway for copyright holders to operate in. The record and movie industry often prefer to hold their target audience on a short leash, whereas and Hasbro and TakaraTomy have opted for the fan-friendly end of the spectrum. Fans occasionally excuse the content of fan sites by arguing that they are effectively "free advertising" for theTransformers brand—however, while this mindset certainly influences Hasbro and TakaraTomy's actions in this regard, "free advertising" is by no means a valid legal defense.

Hasbro and TakaraTomy are doing so by their own choice and are free to change their approach whenever they want. For example, in the early 2000s, many fan sites were hosting scans of the Generation 1 Marvel comics and encodes of the Sunbow cartoon. Neither were officially being distributed back then, and Hasbro concluded that having those contents on the internet might help keep the interest in the Transformers brand alive, thereby having a positive effect on their toy sales. However, with the onset of a general 1980s nostalgia wave and an increasing interest in Transformers in general, Titan started releasing collected editions of the Marvel comics, and Kid Rhino released the cartoon on DVD. With financial interests at stake now (and possibly licensees urging Hasbro to do something about the situation), coupled with the fact that the owners of these websites had started to ask for donations to cover their bandwidth fees, Hasbro decided it was time to intervene and sent out cease and desist orders, a comparably harmless legal measure. The sites in question complied, prompting Hasbro to continue tolerating their existence and other, comparably minor (and not business-endangering) copyright violations.

External links

• Copyright at Wikipedia
• United States copyright law at Wikipedia
• Brief overview on copyrights, patents at trademark relevant to the Transformers brand at 20th Century Toy Collector