Acquiring the rights to out-of-print books in the US.
January 3, 2015 2:32 PM   Subscribe

I'd like to try acquire the rights to material from a few related out-of-print nonfiction books published in the US during the 1920s and 30s, in order to create interactive electronic media from the material. (Initially a website, possibly an offline phone app. in the future.) This is almost certainly not fair use, and copyrights have been renewed for most of the texts. I'm hoping for a sanity check and some pointers from someone who knows more about book rights than me.

Some more detail:

The books have all been out of print since 1940, and there are plenty of used hardcovers available online for less than the cost of shipping. I doubt current rights holders have gotten any money from these books - or expect to - within their lifetimes.

This is a hobby project, and I plan to lose money on it. If donations pay for a fraction of the hosting costs, I'd be very pleased. But, I'm willing to spend a few thousand dollars to make it happen, provided there's a good chance that it will be successful.

There are four books total, all of which were originally published by a company now part of Penguin Group (USA). Their order of publication more or less matches my ranked interest in using the material, and using just some of it would be worth doing.

For the first two books, copyright was registered in the late 20s. In the early 1950s it was renewed jointly by one co-author and the relative of the other deceased co-author. The third book, by a single (different) author was registered in the early 1930s. Copyright for that book was renewed in the late 50s by the publisher and listed as a work for hire. The fourth book includes the entire contents of the third book, and also a few hundred pages of additional new material, with a slightly changed title. It was registered in the late 1930s, and it doesn't appear that its copyright was ever renewed.

My current plan is to try to figure out who's most likely to have inherited the rights to the first two books and send them a friendly note asking for permission to use them, followed a cut-and-paste contract granting me non-exclusive rights to use the material in electronic form. (And some cash, if they ask for it.)

Given that I'm new to this whole process, here are some questions. "Talk to an expert" is a fine answer, if it's accompanied by tips for finding an expert who's both knowledgeable and willing to talk to a small fry like me.


1 - Is there a definitive way to figure out who owns the rights to the earlier books? All the registrants are dead, and it looks like their living heirs are at least two steps removed. Is paying someone to search the physical "Assignment and Related Documents Index" at the copyright office likely to be useful in this case?

2 - Once I've figured out who owns the copyright, is there a definitive way to find out if the rights to produce the material are contractually encumbered in some way? (And, is it my job to do so?) I'm guessing the grand-nieces of the authors may not have any original paperwork from the time. Is writing to the company that bought out the original publisher the logical first step?

3 - Based on what I've read, it looks like each co-author can non-exclusively license the work. That means that for the co-author registered books, I only need permission from one author's heirs to use their work, right?

4 - For the fourth book, for which copyright was never renewed but which is a superset of the third book that was renewed, everything I've read indicates that the new material is now public domain. Am I right in assuming I'm free to just chop out the duplicate material and do what I like with the new stuff?

5. The Penguin Group permissions inquiry website makes a big distinction between "non-profit" and "commercial" electronic use. In this context, is saying "this is a personal website with no advertising" good enough to count as non-profit, or are they going to want to see actual evidence that I'm registered as a non-profit entity? (I'm not, and doubt it's worth finding sponsorship.) If the former is good enough, is a donation button a deal breaker?

6. What's a reasonable price to pay for the material in this sort of situation? Is offering a few hundred dollars insulting?
posted by eotvos to Law & Government (4 answers total) 4 users marked this as a favorite
Is there a definitive way to figure out who owns the rights to the earlier books?

I can't guarantee this will help, depending on the obscurity of the authors involved, but the WATCH File is definitely your first stop for "Who owns these rights?" questions.

Am I right in assuming I'm free to just chop out the duplicate material and do what I like with the new stuff?

IANAL, but yes, non-renewal in the period in which renewal was required (pre-1964) should mean that any new material would be in the public domain.

There are two very different dynamics in play here--questions of copyright and fair use almost always have complicated and non-definitive answers that are best teased out by legal counsel. At the same time, the likelihood that there are rightsholders who know they hold such rights, and care passionately enough to sue over the possibility of an infringing website, is likely to be small.
posted by Horace Rumpole at 4:10 PM on January 3, 2015 [1 favorite]

Contact the rights holders and ask how much they want for the rights/an option on the rights. If it's obscure material that is long out of print and its value is negligible, you might be surprised at how affordable doing something like this can be.

My understanding is that in most cases the author typically retains copyright, and after their death rights pass to their heirs. This can get complicated depending on what type of books we're talking about, though. Since it sounds like your situation is one of the complicated ones (co-authors? Nieces? Original publisher bought out? Copyright renewed for some books in the series but not others?), I'd talk to an IP attorney or at least someone who has solid experience with this sort of thing.

If there is any potential for monetizing your project, then yes it is "commercial". "Non-profit" would be like if a teacher wanted to have students make derivative works as a classroom assignment, or an NGO wanted to have volunteers adapt it into a performance as a fundraiser. It usually doesn't mean "I'm not in it for the money" or "I'm pretty sure this is never going to be financially successful."
posted by Sara C. at 4:37 PM on January 3, 2015 [1 favorite]

Best answer: Although it's a straightforward process (in terms of known steps) which any copyright lawyer can lead you through, your budget is inadequate. $5k in legal fees and another $2k or $3k per book in licensing fees would be a baseline. If the situation around who holds the copyright is remotely complex, those legal fees are going up from there.
posted by MattD at 1:56 PM on January 4, 2015

This is, by the way, why so many books are out of print now when there's no technological reason why they should be and many economic reasons why they should not.

Many smart people are arguing for a move to standardized mechanical royalties for out of print books being resurrected, but until then, it's going to be too painful to bring those books back in all but the most unusual of circumstances.
posted by MattD at 1:58 PM on January 4, 2015

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