Brad, there is a dead copyright, can I use it?

Doug, a friend at my co-working space, has an idea for a product. He asked me about a product he knew from his childhood. Something like baseball cards. He wanted to know if he could use the pictures and information and remake the product. He found that the website was not registered, the trademark had expired, as did the copyright.

Since he is my blog mentor I'm taking his advice by posting this. I'm drafting a version for the Vail Daily now that is a little more generic.




Doug I HAVE to say that you haven't hired me as an attorney (can't sue me if I am totally wrong). This is friendly Wikipedia type advice here. If you want to hire me we can talk about $ and scope and such.

Sorry it got long, professional hazard.

Short answer: Don't do it, it is covered.

Long answer:...

Copyright exists when the work is created, not when it is registered.

The 1909 copyright act does cover all works CREATED before 1978. But each card is a unique "work," so they will each have a unique copyright date. Some will undoubtably cross into the 1978 act.
1909 Act, renewal and 1992 amendment (see: wikipedia )

Congress, in its infinite wisdom, passed an amendment to the 1909 act. Which works as follows:

The original 1909 act says that you have the copyright for 28 years from the date created, with an option to renew (called opt-in) for an additional 28 (or maybe 45) years. If this were still the case you would be golden.

HOWEVER, the 1992 amendment gives an AUTOMATIC renewal if the work was created between 1962 and 1978. Which means Frenchies get a free pass on pre 1978 work despite failing to renew.
For the post 1978 work: For a corporation it is either 95 or 120 years, depending.
So, you would be boned either way.

Your three options:

1) Try to contact the french company or whomever owned it and buy the rights;

2) Just open up and see what happens; or, 

3) Change your idea enough that it is something new. I say change the name and keep the look & feel different.     

 - As I read it, the test is "would and orphan or widow be confused." Say I send metaphorical grandma to the store to pick up an XYZ. She is at the shelf and sees XYZ and ABC and can't tell. One of these is violating a copyright or trademark or something. ...

The two problems with number 2. - First, if they do find out they could sue you for ALL gains (win or lose bad lawsuit, only serves to make me rich). - Second, if you wanna sell this to someone else they won't buy it with the potential for a lawsuit....

I say find these people and offer them a royalty deal.