Your thesis missed one important element right here:
As if the ability to restrict the creativity of others is a natural right like the freedom of speech.
Practically or legally speaking there isn’t a restriction of creativity. Its a restriction on the ability to profit from that creativity or negatively affect the profits of the rights holder with your work using their name.
If you call yourself the Burger King in your kitchen, there’s no trademark infringement there. However, if you start selling you food and calling yourself the Burger King, then that is a trademark violation. If you want to write Twilight fan fiction using the characters and story lines from the books, you’re free to do so. There is no copyright violation. However, if you want to profit from your expansions to another author’s work, you have to rename the characters and setting and call it “Fifty shades of grey”.
There is a reason respect for copyrights is at an all time low.
I’ll agree with this though. Large rights holders have been able to get changes to law that exceed the original IP mandates. This means extensions wildly beyond what was reasonable before, or getting things protected by IP law that are questionable at best.
If you call yourself the Burger King in your kitchen, there’s no trademark infringement there. However, if you start selling you food and calling yourself the Burger King, then that is a trademark violation. If you want to write Twilight fan fiction using the characters and story lines from the books, you’re free to do so. There is no copyright violation. However, if you want to profit from your expansions to another author’s work, you have to rename the characters and setting and call it “Fifty shades of grey”.
I believe in must jurisdictions its the distribution that makes it an issue not the selling. If you started handing out your “Burger King” burgers in a public place I would expect to be shut down.
Practically or legally speaking there isn’t a restriction of creativity. Its a restriction on the ability to profit from that creativity or negatively affect the profits of the rights holder with your work using their name.
Would that this were true, but if you disseminate work that contains a copyright violation, the copyright holder can absolutely come after you for copyright infringement, regardless of whether you gave your work away for free. Damages are based not on your profit but on an estimate of lost profit on the part of the copyright holder. For instance, if you make your own great Mario game and everyone plays it for free, Nintendo can expect to sell fewer games.
The only way to ensure you won’t run afoul of copyright laws when using unlicensed protected material (outside of fair use) is if you keep your work private. Not because it’s allowed, but because they can’t punish you if they don’t know you broke the rule.
Your thesis missed one important element right here:
Practically or legally speaking there isn’t a restriction of creativity. Its a restriction on the ability to profit from that creativity or negatively affect the profits of the rights holder with your work using their name.
If you call yourself the Burger King in your kitchen, there’s no trademark infringement there. However, if you start selling you food and calling yourself the Burger King, then that is a trademark violation. If you want to write Twilight fan fiction using the characters and story lines from the books, you’re free to do so. There is no copyright violation. However, if you want to profit from your expansions to another author’s work, you have to rename the characters and setting and call it “Fifty shades of grey”.
I’ll agree with this though. Large rights holders have been able to get changes to law that exceed the original IP mandates. This means extensions wildly beyond what was reasonable before, or getting things protected by IP law that are questionable at best.
I believe in must jurisdictions its the distribution that makes it an issue not the selling. If you started handing out your “Burger King” burgers in a public place I would expect to be shut down.
Would that this were true, but if you disseminate work that contains a copyright violation, the copyright holder can absolutely come after you for copyright infringement, regardless of whether you gave your work away for free. Damages are based not on your profit but on an estimate of lost profit on the part of the copyright holder. For instance, if you make your own great Mario game and everyone plays it for free, Nintendo can expect to sell fewer games.
The only way to ensure you won’t run afoul of copyright laws when using unlicensed protected material (outside of fair use) is if you keep your work private. Not because it’s allowed, but because they can’t punish you if they don’t know you broke the rule.