Let’s say a law changes. It will take months at the very least - or years or even decades in most cases - for that new Intellectual Property law actually starting to show up in how people work with Intellectual Property.
In the meantime, jurisprudence - actual court decisions - “flesh out” the Intellectual Property laws and change how we work with it.
Let’s take the book “The Wonderful Wizard of Oz”, and it’s derivative work, the movie “The Wizard Of Oz”, as an example.
The book is in the public domain, because of the general rule that any work published before 1923 is in the public domain. The story, the characters, everything is free for public use, as far as the book is concerned.
But then the movie “The Wizard Of Oz” was made.
Prior to 1972, creators had to register their works with the Copyright Office for them to be protected. Because the creators of “The Wizard Of Oz” didn’t register the movie’s posters, still photos, set photography, and publicity fliers, all of that went directly into the public domain.
When AVELA started selling merchandise with photos or other intellectual property from “The Wizard Of Oz”, Warner Brothers sued in 2011 to stop them (
WARNER BROS. ENTERTAINMENT v. X ONE X PRODUCTIONS).
The court decided that the Warner Brothers’ copyright to the film “extended backward in time” to include the “look” of characters as they appeared in the movie.
As a result, things like the still photographs from the movie were still in the public domain, but the contents of the photograph were still protected by copyright. You could freely recreate the photograph - as long as it was an exact replica. If you edited the photograph in any way though, you would be illegally violating Warner Brothers’ copyright on the characters themselves.
No law changed, but our
PRACTICE of the law was dramatically altered.
Another example involving Warner Brothers’ is the 2011 legal case
Prior to this case, things like T-Shirts with Dorothy and Toto and the Tin Man and the Cowardly Lion dancing down the Yellow Brick Road on it with the text “There’s No Place Like Home” it were fine to sell. The characters and the costumes and the still photos were not copyrighted, so they were in the public domain.
But since this case, you can’t do that any more.
Now we have to be conscious of “increments of expression” - steps of derivation of an original work. Adding text to that image “increments it’s expression” and it is impermissible.
This is also why you can’t make a 3d rendering of that scene - you would be “adding details” that aren’t viewable in the public domain photograph.
You can recreate the original photograph - printing it on a T-Shirt instead of photographic paper doesn’t “add data”, so the image is in the public domain.
But adding text to the image, or the logo of the company that printed the t-shirt, or recoloring any aspect of the image or editing in another character is all impermissible.
No law changed, but our “practice” of it has changed - in some cases significantly, and the world after that legal case is a dramatically different world than the world we lived in before it. The jurisprudence made the law something that it wasn’t before, and now intangible things like the “look” of a character is protected by copyright, and compositing two separate images that are themselves in the public domain is now impermissible.
This is why judges are important, and why the GOP is so pleased with the number of federal judges that the Senate is getting seated. Will the judges being appointed by the GOP today protect public domain works? Or will they extend copyright to include more intangible elements?
So, yes - laws are important. But the jurisprudence tells you what the law actually does.