When does copyright permission truly need to be obtained?
January 22, 2010 12:00 PM   Subscribe

How can literary works have a copyright held, but appear to be in the public domain at the same time?

Without getting into too much detail - I have a friend who has written a book using the works of a rather famous figure who was also a prodigious writer, and has been dead for nearly fifty years now. This extraordinarily famous political figure left behind many papers, writings, recordings; many photographs were taken of him, etc. He's the sort of person that people write essays about for school all the time. His face is instantly recognizable.
This great figure is also a personal hero of a friend of mine, who decided to create a reader, by editing texts produced by said person, organized by subject. A "Selected Readings", as it were. Millions of words were written by this famous fellow (my vagueness is for my friend's protection, but I think by now it is fairly obvious who I am talking about - if you don't get it, memail me), and my friend wanted to make this man's work more accessible to a wider audience.
Upon contacting the literary agent for said famous figure, who as I noted, has been dead nearly fifty years, and for whom much work is already in the public domain; my friend was devastated to discover that the literary agent was going to pass on allowing publication of the project. My friend even offered to turn over any proceeds. He doesn't want any money, this truly has been a labor of love on his part.
I guess my question is, how to determine what is legally and fairly held under copyright, and how to determine whose permission you really need to use it? What are the consequences if you fail to obtain this permission? I have been researching this matter for hours now, and am more confused than before I started. I think it is fairly obvious that I am not, nor is my friend, any part of the publishing and literary establishment.
Thanks in advance for any attempt at help. I'm sorry to be intentionally vague, but my friend would not appreciate his manuscript being so openly discussed. I will try to answer any additional questions that may arise. Memail is my friend.
posted by msali to Media & Arts (30 answers total) 1 user marked this as a favorite
 
how to determine what is legally and fairly held under copyright, and how to determine whose permission you really need to use it?

If you don't have explicit information that a work is in the public domain, you should assume it is under copyright.

What are the consequences if you fail to obtain this permission?

The holder of the copyright could sue you.
posted by Chocolate Pickle at 12:03 PM on January 22, 2010


Have you seen this interesting flowchart about U.S. copyright?
posted by mhum at 12:04 PM on January 22, 2010 [6 favorites]


Chocolate Pickle: Part of the problem is that I am having difficulty ascertaining whether or not the original work is in the public domain.
posted by msali at 12:11 PM on January 22, 2010


My friend even offered to turn over any proceeds. He doesn't want any money, this truly has been a labor of love on his part.

Your friend could release his labor of love online for free. He might still get sued, but at least it will be out there.
posted by bingo at 12:15 PM on January 22, 2010 [2 favorites]


your friend seriously might want to get a 30 minute sit down with an IP attorney who can explain the finer points of this.

it's quite possible that some of the work is in public domain and some is not. that chart shows that there are all sorts of variants based on publication date as well as author's death, so the expiration of copyright might be based on either one depending on the particular work.
posted by sio42 at 12:15 PM on January 22, 2010


Sio42, I get that, but is there some special supersecret clearinghouse where I can figure out when copyright has expired/will expire? The claim has been made, and I can only find it in one place, that some of the work remains in copyright, but I cannot verify that independently.
posted by msali at 12:20 PM on January 22, 2010


Copyright has been extended to quite a bit past 50 years after the author's death (thanks, Disney, for continuing to impoverish the public domain). Sounds like the works you're interested in are in the weird pre-Berne area where their copyright status depends on whether their copyright was renewed or whatnot. This makes it extremely complicated to tell for sure what a work's status is. Mhum's flowchart is probably a good start though.
posted by hattifattener at 12:20 PM on January 22, 2010


(1) Which country does your friend live in?
(2) In what country is he trying to publish his book, and what country is the primary offices of the publisher?
(3) What are the publication dates of all the works collected in this "selected reading"? What were the publication dates of whichever source files your friend used?

Copyright in the US is very, very tricky. "50 years from author's death" entirely fails to cover it. The current Project Gutenberg guideline is "anything published before 1923", but there are other rules that may allow works post-1923.

One thing I'm a bit confused on: Are you sure the publisher refused the work because of copyright issues? Could it be that the publisher just didn't see value in the book? If that's the case, your friend might be able to self-publish the book, provided that he ensures that all excerpted material is either in the public domain or cleared through whoever holds rights to the works.
posted by muddgirl at 12:21 PM on January 22, 2010


I guess I forgot to mention that my friend requested permission in the UK.
posted by msali at 12:22 PM on January 22, 2010


IP attorneys have access to large databases us mere mortals do not. it has all the copyright stuff going back years and years, like to the first patents for zippers etc.

this question is EXACTLY why they exist. think of them as the special research librarian at the university.

if your friend is concerned about getting sued AND the reason for the rejection was copyright alone, then it is well worth the time and money to make sure you get the correct information from a professional.


trying to do this on the internet on your own is kinda like trying to treat a serious disease using only WebMD. a doctor knows much more than we who are not doctors know.

all of muddgirl's questions would be asked by the IP attorney as well as that all bears on what the answer will be. your friend may want to make a spreadsheet or something showing all releveant information about each work in question.
posted by sio42 at 12:27 PM on January 22, 2010


but is there some special supersecret clearinghouse where I can figure out when copyright has expired/will expire

Not really, because copyright does not require registration in most cases. If someone writes it, it's assumed that it's copyrighted until the copyright expires.

I believe that every person interested in books that seem borderline in the US follows this flowchart. For those books published between 1923 and 1964, the registration renewal can be looked up in one of several places, which is covered a bit on this page.
posted by muddgirl at 12:29 PM on January 22, 2010 [1 favorite]


Ugh, knowing that your friend wants to publish in the UK invalidates all the advice I've given.
posted by muddgirl at 12:30 PM on January 22, 2010


Muddgirl, the original work was published both in the UK and here, and probably in every printed language that exists. My friend applied for permission in the UK, but would be interested in publishing internationally (if he had his way, he would have everyone in the world read a book about his hero). Following your link, I found the US Copyright Office, and the work does not appear there as copywritten.
Thanks everyone so far for your valuable information. It doesn't seem like this should be brain surgery, copyrights, intellectual property, public domain, fair use, etc., all seem like things that should be easy to determine. (And yes, I am aware of what Cory Doctorow does)
posted by msali at 12:41 PM on January 22, 2010


your friend can ask around if/when they call to see if there IP attorneys with UK experience in the area. it's not unheard of.
posted by sio42 at 12:42 PM on January 22, 2010


Following your link, I found the US Copyright Office, and the work does not appear there as copywritten.

That's almost entirely meaningless. Again, this varies by country and by date of publication. The US Copyright Office online catalog only covers new and renewed registrations made since 1978. It makes no claims to be a complete database of every work under copyright in the US.
posted by muddgirl at 12:45 PM on January 22, 2010


Similar flowchart for UK.
posted by DevilsAdvocate at 12:48 PM on January 22, 2010


It doesn't seem like this should be brain surgery, copyrights, intellectual property, public domain, fair use, etc., all seem like things that should be easy to determine.

This is exactly the loophole (well, one of them) that the Google Books project exploited when Google began scanning in millions of copyrighted works.

I would suggest checking with the Books Rights Registry (likely to begin operations in February, after the final decision by Judge Chen in the Google Books case)--this is exactly the type of copyright confusion they're designed to figure out, because if it's still under copyright then Google owes the author money, and if it's not then they don't. So they'll do the work for you; you just need to sit tight for a bit.
posted by peanut_mcgillicuty at 12:54 PM on January 22, 2010


msali - i know you really want to help your friend.

IANAL in any way, but as i have mentioned in other posts, my boyfriend is and has been for sometime an IP attorney at a firm that does only IP work (copyrights, trademarks, etc.)

i never would have thought the issues were as complex as they are until we started dating and i have learned a LOT more about IP than i thought ever needed to know.

International copyrights are extremely complex and don't even exist - it's a county by country basis. You can't just get "international copy rights". Each and every country where your friend desires to publish will have their own rules.

This is where the attorney (again) comes in. This person will navigate these waters for you.

In order for this to remain a labor of love and a fond memory for your friend, I HIGHLY recommend that your friend, with you if you are so inclined, go see a professional.

Otherwise this will end up in misery and a giant hot mess of frustration and agony.
The attorney is not there simply to put a stamp on a work so that it is has a copyright and no one else can use it. They are there to be the professional (much like a brain surgeon and a cardiovascular do different things and have different skill sets and knowledge).

I am not saying that what you are finding is not valid, but that you may not know what you are looking for simply because this is not your area of expertise.

I wish your friend much luck and hope that their accomplishment gets out there with a minimum of frustration.
posted by sio42 at 12:56 PM on January 22, 2010 [1 favorite]


Here is another copyright chart, including U.S. and non-U.S. works (scroll down.)
posted by gudrun at 1:05 PM on January 22, 2010


Wow. This is all fascinating stuff. I never knew what a rabbit hole this was to tumble down. The Google books project looks like an enormous boondoggle for the copyright industry. I actually found most of this famous fellow's work available, but not in its entirety, at Google books.
posted by msali at 1:13 PM on January 22, 2010


What is "the copyright industry"? Do you mean the publication industry?
posted by muddgirl at 1:17 PM on January 22, 2010


A good place to start might be the WATCH (Writers, Artists and Their Copyright Holders) file, 'a database of copyright contacts for writers, artists, and prominent figures in other creative fields'. This won't give you the full copyright position, but it will tell you who holds the copyright or administers your man's literary estate. It also provides helpful information on UK and US copyright law.
posted by verstegan at 1:23 PM on January 22, 2010


No muddgirl, I actually meant the copyright industry. The industry built up around the generation and protection of copyrights. I make no value distinctions one way or another, but let's not think for a moment that there is not a tremendous amount of $$ and lots of jobs at stake, from a copyright standpoint, strictly speaking.
posted by msali at 1:55 PM on January 22, 2010


Verstegan, that gave me exactly what I was looking for, in terms of specifically who holds copyright to certain copyrighted works by said Famous Politician/Author.
posted by msali at 1:58 PM on January 22, 2010


There's no such thing as "the generation of copyrights". The minute I write this text here, it's copyrighted. No one can use it without my permission, outside of some rather vague fair-use guidelines.

Now, you may have a point about the protection of copyright, but that really isn't germane to this discussion. Either the work is protected by copyright or the copyright has expired. If it's protected, then your friends' use of it may be considered fair use or it might not. If it isn't, your friend may be able to obtain permission from the copyright holders, if this project is so important to him.

If your friend's use fails on all three counts and he publishes anyway, he may get sued or he may not.
posted by muddgirl at 2:12 PM on January 22, 2010


IP attorneys have access to large databases us mere mortals do not. it has all the copyright stuff going back years and years, like to the first patents for zippers etc.

IP attorneys have access to the same databases the rest of us have. What they have that makes them useful is a thorough understanding of copyright LAW, not work-specific copyright/patent info.

There is no database of copyrighted stuff (the U.S. patent database is entirely different, and is searchable online by anyone); there is only judgment as to how a work fits into our bizarrely convoluted copyright system. IP attorneys will have a better judgment of this than you, particularly in more tricky instances.
posted by coolguymichael at 5:24 PM on January 22, 2010


Re: the copyright industry.

This is way more complicated than you think. Your friend should talk to an intellectual property lawyer in the relevant jurisdiction.
posted by chesty_a_arthur at 5:38 PM on January 22, 2010


Thank you everybody for your answers, it has been a very illuminating afternoon. I feel like I have had a crash course on copyrights and intellectual property. I appreciate everyone's attention and thoughtful responses. Again, this is why I love metafilter.
My take-away lesson is that my friend went at this bass-ackwards, and needs an IP attorney posthaste.
posted by msali at 5:50 PM on January 22, 2010


Thank you for clarifying about the database coolguymichael.
I had never asked about the details of it before.
I just knew it was horribly difficult to navigate.

msali - I'm very glad you are going to encourage your friend to see an attorney. I was hoping you wouldn't have to post a thread in a few months about your friend getting sued by an estate or something .
posted by sio42 at 7:04 PM on January 22, 2010


muddgirl: There's no such thing as "the generation of copyrights". The minute I write this text here, it's copyrighted. No one can use it without my permission, outside of some rather vague fair-use guidelines.

Actually, that's not quite true. Generally, works need to be published to be copyrighted. However, unpublished works are often protected in other ways, or unavailable, and in countries that implement moral rights, they still apply.
posted by Joakim Ziegler at 8:10 PM on January 22, 2010


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