Question about public domain

[Orrex]

Let's say I'm an author and I create the character Dirk Zaxxon heroic space guy. I tell the noble tale of his fight to protect the lowly xeefle birds, who excrete the most delicious jellybeans in the universe and have been slaughtered by the thousands in a vicious campaign by Big Jellybean to protect its market share. It's a sprawling 12-book series.

What happens to the character if, through some gross negligence on my part, I allow the first book to lapse into public domain? Can other authors expound upon Dirk's noble adventurers, or is my ownership of the character protected by my subsequent use of him in other works?

Does it make a difference if the lapse occurs prior or subsequent to the publication of the other books?

[frazzled]

1. If you've copyrighted it

it won't fall into public domain until 70 years after your death (unless your estate is able to renew the copyright, in which case more).

If you don't copyright it, it's in the public domain immediately, and anyone can use your character.

A public domain book is a book with no copyright, a book that was created without a license, or a book where its copyrights expired[21] or have been forfeited.

...

Determination of whether a copyright has expired depends on an examination of the copyright in its "source country".

In the United States, determining whether a work has entered the public domain or is still under copyright can be quite complex, primarily because copyright terms have been extended multiple times and in different ways—shifting over the course of the 20th century from a fixed-term based on first publication, with a possible renewal term, to a term extending to fifty, then seventy, years after the death of the author. The claim that "pre-1923 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years.

https://en.wikipedia.org/wiki/Public_domain

[50 Shades Of Blue]

3. You don't need to do anything to copyright a work. You can if you want. But you don't have to

[Orrex]

5. You know, I thought about that, but...

George Romero's Night of the Living Dead famously lapsed into public domain:

Night of the Living Dead entered the public domain in the United States because the original theatrical distributor, the Walter Reade Organization, neglected to place a copyright indication on the prints.

So I wondered what would happen if that same sort of SNAFU hit Dirk Zaxxon's adventures. Hell, what if I screw up the movie rights?!?

[50 Shades Of Blue]

2. Any work you create is protected by copyright. Automatically. It won't become public domain

until 70 years after your death.

[frazzled]

7. But you can't sue for claims unless you register the copyright

Copyrighting your work through common law is a way of proving that the work is your own, but official registration is necessary before you have any power to take action against someone who is stealing or profiting from your work.

...

Note that if you are a US citizen, you will need to officially register with the US Copyright Office before you are able to make a claim in a US court (even if you already own a right on your work). Registration may also entitle you to statutory damages in a US legal system.

http://www.wikihow.com/Copyright-a-Book

[50 Shades Of Blue]

8. Not true. If you own it, you own it.

[hunter]

10. But you can register at any time.

It's just the first hoop to jump through in any legal action, and it can be accomplished years after you first typed "Copyright..."

[frazzled]

14. Sure you can, but then you can't sue for statutory damages

And fighting an infringement case in court without the ability to collect statutory damages is expensive ... and you won't get much out of it.

The main problem you will confront if you register after infringement is that you won't be able to get statutory damages (the high-level damages that make difficult-to-prove copyright cases worth fighting in court).

http://www.newmediarights.org/business_models/artist/can_you_sue_someone_copyright_infringement_if_your_work_not_federally_registe

Really, just register the copyright from the beginning if you're so worried about theft.
But I wouldn't worry too much about anyone wanting to steal this idea, or if they did, making enough money off of it to go to the trouble for suing for damages

[hunter]

15. If family and friends had bought a few books-on-demand from Amazon...

... it wouldn't be a difficult to prove copyright case, would it? Amazon prints the actual date and place of printing on the last page.

The U.S. patent system is another place where an individual creator is a mouse scampering among the behemoths.

[jberryhill]

4. "if, through some gross negligence on my part, I allow the first book to lapse into public domain"

I'm trying to imagine what sort of negligence can cause that.

First off, copyright protection is automatic. You do not have to do anything in order to have an enforceable copyright. Federal registration of your copyright provides you with certain procedural advantages in enforcing your copyright, but it is not at all necessary to have enforceable rights.

So, that leaves me stuck at the initial proposition - i.e. loss of copyright through some sort of inaction, given that no particular action beyond authoring the book is needed in order to obtain it.

Secondly, since it is a series of books, you also have a trademark in Dirk Zaxxon as a mark for a series of books. While the title of a single work does not constitute a trademark, the circumstances are different with a series of books, such that the mark functions to signify "that series of books" beyond the title of any one of them.

http://www.rightsofwriters.com/2011/04/copyright-in-fictional-characters-can-i.html

Second, the owner of the rights in a famous fictional character will also likely seek to invoke other legal theories -- particularly trademark and unfair competition laws -- when trying to protect her characters from my unauthorized use. If the name of a character has acquired secondary meaning -- i.e., if the name is sufficiently well known that readers associate it exclusively with a particular author's work -- then the owner may be able to claim that my unauthorized use of the name creates confusion among readers, who may mistakenly conclude that my use of the name is authorized, approved, or licensed by the owner. Confusion as to source, authorization, or endorsement is the essence of an unfair competition claim.

[Orrex]

6. Clearly you underestimate my ability to be grossly negligent

I was thinking of a case like Night of the Living Dead, which lapsed into public domain within a few years of its release due to a error by its distributor.

[jberryhill]

9. Those circumstances cannot be repeated

The US Copyright Act has been amended substantially since that time.

Sound recordings were not subject to US copyright prior to 1972. It's an entirely different ball game now.

Lack of notice, such as happened with Night of the Living Dead, cannot cause loss of copyright.

[Orrex]

11. Ah, thank you.

I can relax and know that the legacy of Dirk Zaxxon will live on for decades.

[hunter]

12. Forget the legal nuances, think of it as a marketing opportunity.

You are, after all, the creator of the AUTHENTIC Dirk Zaxxon adventures.

The more press you can get, especially in your acrimonious battles with the pretenders, the more people will look at your books!

But you do know that Sega and it's licensees are going to crush you for your use of the Zaxxon name, unless you wrote your first book before 1982, in which case their lawyers will still convince the courts they owe you nothing.

I consider all my shit Creative Commons Attribution-NonCommercial-ShareAlike unless otherwise stated.

[Orrex]

13. I misspelled it. It's actually Dirk Zaxxxon. Totally different.