From: David Tetzlaff (email suppressed)
Date: Fri Feb 15 2008 - 08:16:34 PST
As I've no doubt written here before, copyright is not about what is
or is not legal. The law is pretty vague when it comes to any kind of
'Fair Use' application, which leaves it up to a court to decide. Of
course, most cases don't get to court. They're settled outside of
court because the parties chose to avoid the time and expense of
continued litigation. In practice, copyright is what you can get away
with: which is true in general of any aspect of civil law. That is,
it's all about the abilities of the potential plaintiff and defendant
to pursue and sustain a legal contest.
So, let's say when all is said and done, Gene is really within his
rights to publish his book. However, one of the copyright holders of
the ads in the mag is a large corporation, and decides they don't want
anyone messing with their 'intellectual property.' It doesn't matter
if they're wrong, as long as their attorney can draft a remotely
credible brief: they've got more money than God and they can threaten
Gene with a legal fight that would exhaust his financial resources and
his time. So, unless he wanted to have defending his rights become his
new full-time job and asset-gulping charity, he'd have no realistic
option but to cease and desist. This is why all small publishers
demand usually demand total written permission on any copyright
questions, even ones that are obvious Fair use exceptions (e.g. frame
grabs). They don't want _any_ risk of being sued, so they pre-cave.
On the flip-side, it doesn't matter if Gene's republication of the
paper DOES violate someone's copyright, unless that copyright holder
has motive and resources to sue Gene or his publisher. Since
attorney's aren't cheap, the motive usually has to involve a
significant economic incentive for the plaintif. So most copyright
cases are brought against defendants from whom significant monetary
damages can be extracted. If Gene's book goes to a (poor) small press,
and has limited circulation, there's little financial motivation. If
it's published by Harper Collins, they're going to get sued for sure.
The other incentive for copyright holders to sue is to avoid
precedent. So if Gene's book would present something like a first in
the circulation-without-recompense of copyrighted material, a big
copyright holder might be jolted into action.
In any event, the gatekeeper becomes the publishing house, which, more
than the author, is a potential target of litigation. And again its
not about whether its legal or not in the end, but about whether the
publisher is able and willing to defend themselves against a litigious
attack.
For the most part, "alternative culture" flies below the litigation
radar. Awhile back someone posted a link here to a website where DVDs
of bootlegged films and video are sold openly. The guy has a huge
catalog, but it's all old or weird stuff that isn't in active
commercial distribution. He has a disclaimer on the site saying that
as far as he knows, all the works have been abandoned by the rights
holders, and if anyone with rights to a specific title complains he'll
withdraw it. However, this hardly exempts him from the fact that what
he's doing is clearly illegal. The point though is, why would the
studio that holds the rights to one of the old films care? This
distributor appears to be operating as a mom and pop small business,
not publicly prominent, and doubtless without resources to yield
damages that would cover attorney's costs. The legal guys have better
things to do: going after targets with deeper pockets, or devising
actions (like the RIAA mass suit of individual downloaders) that make
a bigger 'statement" .
This no doubt why Mr. Kunkin of the Free Press was able to tell Gene
he's never had a problem: it's not that his copyright on the pub makes
him absolutely clear on the entirety of the contents, especially the
ads and the film stills. It's more likely that he's just not worth
suing.
So, the folks Gene needs to talk to are his potential publishers, to
see what kind of 'exposure' they're willing to risk. If they displace
the rights issue to someone else, say if Kunkin were to provide a
written document declaring himself the sole owner of all rights and
granting permission to the press, that might help. But if this book
could have significant circulation, and if royalties of any
significant amount would be due to Gene or Kunkin from it's sale
Kunkin's attorney would probably tell him not to sign such a document,
and the presses attorney would probably tell them that possesing such
a document would be a weak defense in court against an argument that
it was a failure of due diligence to follow up on Kunkin's claim that
he was the sole rights holder where ads an stills from third parties
are involved.
Under the law at the time these works were published, as Jim points
out, obtaining copyright required an official registration. Any
commercial producer/distributor would likely have received
registrations that would cover stills and ads, and if so this material
would NOT be in the public domain now. (Again, not that it matters.
Even if they have little or no grounds for a lawsuit, they can still
file one, and bully you out of publication.)
Of course, taking a step back from the legal arena, and the litigation
habits of corporate copyright holders, this is all kind of silly. By
reproducing stills and ads, Gene and his publisher would essentially
be giving the copyright holders of the works referenced free
advertising, re-circulating attention to now-obscure films, which
increases their market value. They should welcome the book, but that;s
not how they think.
Jim also raises the question of whether Mr. Kunkin's copyright extends
to republication of the articles written for the magazine, or whether
the rights revert back to the author. Some of the authors might feel
that if their work is being re-used in another medium they ought to
get paid. This, after all, is what the WGA strike was about, what
writer complaints against periodical publishers now are about....
Freelancers who had work published in the Free Press may not care, or
may not have the resources to mount a legal threat to Gene or his
publisher. But the moral calculus is different than reprinting ads or
publicity stills.
As a final note, this republishing project strikes me as something
that might best be dealt with under the Creative Commons umbrella...
__________________________________________________________________
For info on FrameWorks, contact Pip Chodorov at <email suppressed>.