Let’s say you find an old book, play, or music recording. The copyright owners’ names are clearly seen and properly recorded in the U.S. Copyright office, and the work is recent enough to still be under copyright (like since 1923).
And let’s say you would like to re-produce the play, reprint the book, or reissue the recording by getting all the proper persmissions, pay all the proper royalties, etc. But, try as hard as you can, you cannot physically find the actual copyright owners, assignees or relatives.
I imagine legal eagles would say that it would be folly to go ahead, as the proper owners could theoretically surface and sue the tap pants off you. But is this work therefore lost to the world until the copyright runs out? (And that date could be difficult to compute if you don’t know if the author is alive, so you’d have to take the worst case and the longest time.)
Is there a solution to this? It would seem reasonable that an escrow account be established where royalties could be collected until either the owners determined or a statutory time elapsed, but I never heard of such. Might this be a good idea, or is there a better solution?
http://eldred.cc/ea_faq.html
It depends on whether or not Eric Eldred’s “The Public Domain Enhancement Act” passes…
Without that Act, the scenario you describe is true… except maybe that the part about the work being “lost to the world until the copyright runs out” since the duration of copyright has been extended twice in a row (and many times before that) and it’s likely that it would be extended again…
Often the copyright durations of Europe are extended first and the U.S. uses that as a justification to extend their copyrights again… but in the case of http://www.eldred.cc/eablog/000120.html
copyrights on recordings in Europe they’d be using U.S. copyrights partly as an excuse to try and extend those European copyrights…
Eric Eldred used to be involved in a court case against Ashcroft saying that the new copyright durations aren’t constitutional (the constitution says that copyrights must have a limited duration) but unfortunately his team lost.
A related quote:
“Mary Bono [Sonny Bono’s widow], speaking on the floor of the United States House of Representatives, noted that “Sonny wanted the term of copyright protection to last forever”, but that since she was “informed by staff that such a change would violate the Constitution”, Congress might consider Jack Valenti’s proposal of a copyright term of “forever less one day”.”
The short legal answer is that the copyright owner morally and legally controls the work until it enters the public domain. Just because you can’t find the owner doesn’t mean that the owner doesn’t exist. Somebody is always the owner.
There is no solution in the GQ sense because there is no problem. If you want to argue to morality of current copyright law, please do so in a different forum.
Surely there must have been cases that give us an answer (or answers) to the OP?
I’d suspect that the way the law functions is that as long as you’ve made all reasonable attempts to identify a copyright holder, you can’t be sued for any intentional harm - provided you pay up when you’re finally asked to.
It’s not mentioned in the on-line version of the ad, but in the catalog version, the publisher states that he was unable to find the copyright holders and eventually decided to print the book anyway. I would imagine that the thing to do in such a situation is to set aside what would be your standard royalty rate, keep proof of your efforts that you did try to find the copyright holder, and then if the rights holder did show up one day, you could cut them a check for the royalties, present copies of your efforts to find them prior to publication, in case the whole mess went to court.
To cite a specific example, what happened when Ambrose Bierce disappearred in 1913? Did “An Occurrence at Owl Creek Bridge” become unprintable for 75 years until it entered the public domain?
Except that in the case of the rightholder’s death, it’s pretty well-established what happens to the rights: They’re transferred to the estate/family. Bierce’s works would have been held in trust until he was declared legally dead and then they would have gone to the estate.
The problem comes in when you can’t find anyone who has the rights, not the original author, his/her agent (assuming he had one), the publisher, or the estates of any of the parties involved.
The answer here is complex, and practical realities are in the vast majority of cases this wouldn’t happen. In practical reality, it isn’t the creator that owns the work, but the rights are assigned to some company, and the royalties are split between the customer and the company. Let’s say I want to include a song written and recorded by Sonny Bono on a compilation CD which includes “various great American songwriters and singers.” (Sarcasm intended) Surely Sonny’s recording are owned by some record label. I’d have to negotiate with them to include a song of his. And the songwriter rights will be owned by some company, and they’ll have to be paid along with the record company. These companies won’t be hard to find, and negotiate with (or, in the case of the songwriter royalties, the standard amounts that are well known paid.) The same applies to books, plays, etc.
Now of course there are exceptions. Let’s say there is in my hometown a folk singer (say, Kim Somehypotheticalsinger) who has sung a song she has writted I really like. She is so minor an artist she has no record company contract, or even a publisher for the songwriter rights. This woman dies tomorrow. If next month I want to record this song myself with me as the singer, and release this on a CD. In this case, I likely may be up legal shit creek. At this point legally, the rights to this song belong to her estate. However, if Kim was basically a starving artist type, she may not have had a will, or her estate dealt with by probate court (or whatever such court is called in her state.) Perhaps her family just buried her, and never even thought her music might have value. If so, I have no estate to negotiate the rights with.
At this point, my only options would be #1) Record the song, and hope nobody sues me; or #2) Not want to run the risk of a lawsuit, and not record the song. If at the moment I am basically a musical nobody, trying #1 probably is reasonably safe. However, if I am Mr. Well Known Big Name Music Artist, I may decide the risk isn’t worth it, and Kim’s song is just lost for all time.
The above is legal layman’s analysis, and beyond that a competent copyright lawyer is needed. Given AFAIK the legal situation here could be murky, a real lawyer likely wouldn’t publicly post an opinion.
Legally, what’s the distinction between ‘forever’ and ‘forever less one day’? Mathematically, ‘forever’ would be informally defined as at least the cardinality of the integers, and since removing one integer from the set of the integers dones not change the cardinality of the set the idea of ‘forever less one day’ is meaningless: It’s the exact same amount of time.
What is the legal reason that would make ‘forever less one day’ any more defensible than ‘forever’, aside from how much money Valenti is able to spend on his legal team?
No. Read my hypothetical above about “Kim”. What if after hiring a team of private investigators and lawyers, not even a single family member can be found? Absent a court ruling as to who the owner is, precisely who is the owner? Just because you can’t find an owner doesn’t mean an owner necessarily exists. What if no family members could be found for Kim, and she was buried as a pauper?
I agree. Of course Congress could declare that copyright exists for 100 trillion years. Not forever less one day, but at that point this planet won’t exist that anyone can argue the point.
Sounds reasonable. But let’s add just one condition to the OP: what if I should “produce” the work in a non-profit fashion, that is, not make a dime or intend to make one. Could I be prosecuted later for giving away what should have been sold, even tho the product has never been shown to have any monetary value?
If I want to provide copies to the world and I have no sure legal rights nor does anyone else, there certainly is a problem. At least if you think the world would benefit by the exposure to this work.
Obviously the current state of law or lack of it could lead to a morality or practicality argument and suggest a legal modification, but I would best like a factual answer to a factual question, or as near as possible.
And I have good reason. I have a collection of works from dates in the 60’s-70’s for which I would have a hard time finding the owners. (Not an impossible time, maybe, but a hard time considering my current legal research budget is hovering around $1.98.) I am seriously considering providing them to the world thru the Internet. I would be making no money on them at all, and effectively paying expenses to post and maintain a web site or server. These works are by obscure or non-artists, that is, persons who tried their hand at the art, failed to become popular, and dropped out. Personally I think they would be flattered by any attention they received at all.
I have some works of my own that I would much rather donate to the world than hold on to a futile hope that someday they will be “discovered” and make me rich. It ain’t gonna happen, but someone might get a kick out of them anyway if they were distributed without regard to copyright or ownership.
But I’m not going to do this if I am opening myself up, even a tiny bit, to the worst kind of potential lawsuit; it’s not worth it.
The law does not care what you think. The law also does not care if you make money on it or not. What you want to do is an absolute violation.
Your own works don’t come into it. If you want to make them available on a non-royalty free-use basis you can do so because they are your works. You cannot do this for the works someone else has created.
If Kim has a family, then she has heirs, so all your example shows is that your investigators investigators have failed to find the true owner, in which case the law does not care about your failure. If indeed Kim died intestate with no heirs of any kind and the state took the property, then it has entered the public domain and so is no longer an issue.
The Supreme Court also did not rule or imply that forever minus a day or any such term would be legal. Just that the period of time conforming to the Berne Convention is legal.
I repeat, you are arguing the morality of copyright, not its current legal status. Please take it elsewhere.
Rfgdxm, your posts make me think of what might be a special case for music works. IANAL, but I have a little experience in music licensing, and there is (or was – I haven’t been active in the field for a while) what’s known as a “compulsory license” provision in the U.S. copyright law. The originator of the song has the right to produce the first recording of it, or control who does, but once that has been done, he can not prevent anyone else from recording it.
Statutorily-specified royalties have to be paid regardless, of course, and I don’t know what happens if the royalty distributing orgs like ASCAP & BMI can’t find the owner – I think the funds are just put back into the pot, but I could be wrong.
We (music publishers) used to get sample copies of records made by unknown (to us) artists of catalog material – typically cover songs – sent to us quite out of the blue. Since no permission was needed, it was not requested, and they often just sent us copies as a courtesy, since we would get royalites eventually anyway. And most songwriters are overjoyed to find out their songs are getting recorded and making money for them without having to pay any marketing or placement fees, so they rarely complained.
Either I am not making myself clear or you are not reading my posts carefully enough. Of course I control my own material. I only mentioned such to illustrate that there are people and works that are not guarded jealously like the Dog in the Manger, waiting for impossible and unlikely royalties to show up. If I feel that way about my works, others may feel similarly about theirs, and the legal issue melts away.
But the problem arises when I don’t know if they are in public domain or not, as there is no central clearing house to designate such status AFAIK – if there is, I would like to know about it, as it would help with the problem.
Does my browser have a bug? I do not see “Mod” or “Junior Mod” anywhere under your name, Exapno Mapcase.
If, after you have contacted them you determine that other people feel as you do then you have obtained permission. No issue. If you are using your vaunted mental powers to assume that they must think like you even though you have not been able to locate them, then you are simply rationalizing your theft. And you fail entirely to consider that some people may not want their works reprinted or reissued by anyone at all, or by you in particular, without any thought to possible royalties. Royalties are not the issue at the core of copyright. Control over one’s own works is.
Have you simply checked with the Library of Congress as to the status of these works? You can go yourself, or the staff there will do searches for you, for a fee. See How to Investigate the Copyright Status of a Work, especially the section: Searching by the Copyright Office
If they can show that a work is or isn’t still under copyright, then you have some assurance, if not absolute legal protection. It is usually under these circumstances, in which the work has presumably fallen into the public domain because of lack of timely registration, that the disclaimers mentioned about making a good faith effort to contact the copyright owners and the distribution of royalties if any true claimants appear are normally done. This is a different legal situation than reprinting or reissuing when the work is still presumed to be under copyright, as you stated in your OP.
As for you other comment, you seem to have a problem with anyone telling you that there are rules. I’ve consistently stated here the rules of copyright and the rules of GQ not just to you but to a variety of people who appear unfamiliar with either. You’re free to ignore me and violate either set of rules. Just be aware that there may be consequences afterward.
I thought the Supreme court case (Eldred vs. Ashcroft) concerned the constitutionality of the current copyright durations… (copyright is mentioned in the American constitution).
BTW,
“The Berne Convention provided for a minimum term of copyright protection of the life of the author plus fifty years, but parties were free to provide longer terms of copyright protection”
(In the U.S. copyright currently lasts for the life of the author plus 70 years, or 95 years for corporate ownership)
BTW, since 100 trillion years is a limited duration for copyright it could still be considered constitutional. But Eldred was talking about what the “spirit” of the constitution was about.
