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Pulps and the dual copyright

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Just when you think you’ve got a grasp on US copyrights, and have checked through all the records for the author or their estate filing renewals, another quirk raises its head. The author is not always the only one with the power to renew and that renewal doesn’t even have to be direct. If the work was published in a periodical or other collective work, frequently a pulp magazine in my case (although this applies to newspapers, anthologies, encyclopedias, and many other types of publication), then the publisher might have the authority to renew the copyright as well.

This has actually been brought up here before in my post about Philip K. Dick’s Time Pawn being deleted.

As far as I can tell, prior to 1978, the publisher of a periodical was presumed to acquire all rights from the author when they purchased a work for publication, unless a contract between them explicitly stated otherwise. There appears to be an associated situation where a periodical publishing a licensed work without the author’s copyright notice would put that work into the public domain (if it was the first publication of that work; first publication is the important one legally, the point at which it is fixed in tangible form).

One key piece of case history seems to be Goodis v. United Artists Television, Inc. (a 1969-70 case), which includes the finding “where a magazine has purchased the right of first publication […] copyright notice in the magazine’s name is sufficient to obtain a valid copyright on behalf of the beneficial owner, the author or proprietor.”

Without knowledge of the precise details of any contract, many works can theoretically be under two separate copyrights at the same time: author and publisher. If the author allowed the copyright to lapse, but the issue of the magazine had its copyright renewed, then the work is still copyrighted. If the publisher allowed the copyright on the issue to lapse, but the author renewed the copyright, then the work is still copyrighted. If both renewed, the two parties probably need to retain lawyers to work things out between themselves but Wikisource and the public domain are almost definitely out of luck; the work is still copyrighted.

As far as Wikisource is concerned, without evidence to the contrary, the project must assume the worst case (from the project’s point of view), that either or both copyrights are valid.

Cases where the periodical’s copyright have lapsed but individual works have not are some of the most awkward for me. The owners of Weird Tales and Amazing Stories almost never renewed their own copyrights (probably because both changed hands a few times over the years), so most of the individual issues are broadly in the public domain. However, individual authors sometimes did renew specific works, meaning that a single short story in the magazine is under copyright while the rest is not. Rather than writing off the entire thing, I have redacted the scans, when I upload them, to omit the copyrighted parts. This is even more awkward when the copyrighted work shares a page with a public domain piece.

Sometimes the opposite is true.  The author hasn’t bothered to renew for whatever reason but the magazine has.  In particular, I know this applies to a few of the works of Howard and Lovecraft.  In the same way, a lot of Golden Age science fiction is off-limits because the other two of the Big Four SF magazines, Astounding Stories and Thrilling Wonder Stories (along with the rest of the Thrilling range), did renew their copyrights at the magazine level.

With periodicals, both have to be checked before they can be transcribed to Wikisource and released into the wild.

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Copyright illiteracy redux

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Original Weird Tales illustration for

The problems of copyright-renewed works being added to Wikisource continue.  In this case, by me.  I added “Tell Your Fortune” by Robert Bloch to Wikisource as part of Weird Tales (vol. 42, no. 4, May 1950).  Bloch, author of Psycho and mentee of Lovecraft, mostly renewed his copyrights but missed the occasional piece.  He has a few letters hosted on Wikisource already but this would have been his first work of fiction.  I uploaded it, transcribed it, proofread it and eventually transcluded (ie. “published”) it when the work was done. 

And then it transpired that the copyright had been renewed after all and hosting it on Wikisource is illegal.

I honestly did try to make sure that I caught all the copyright renewals.  I checked scans of the copyright renewal catalogues, transcriptions of those scans, the US Copyright Office’s online database and Google searches.  1950 is an odd year as it was transitional; renewals can be recorded in either the old-style printed catalogues or on the newer official database. There is no complete, single source for this type of renewal.  I created Weird Tales and its subpages mostly to record information like this for this precise reason.  I did catch some other renewals in this issue, “The Last Three Ships” by Margaret St. Clair and “The Man on B-17” by August Derleth, and redacted them from the scan accordingly.  This one escaped me, however, despite being clearly entered on the Copyright Office’s database.

So, it’s worth quadruple-checking the copyrights before you do all of the work necessary to get a text on Wikisource.

There are still usable parts of the issue, such as the poem “Luna Aeternalis” by Clark Ashton Smith and the short story “The Triangle of Terror” by William F. Temple.  Smith has many works already on Wikisource but few of them are backed by scans yet (and some were recently deleted and re-hosted in Canada on Wikilivres).  Temple, a British science fiction author, is new to Wikisource.  This story is actually interesting copyright-wise because Temple only died in 1989 and so his works are still under copyright in the UK.  As this work was first published in the US, however, it is in the public domain under American law due to non-renewal.

The internal cost of copyright illiteracy

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More so than most other Wikimedia projects, except perhaps Commons, copyright is a big deal for Wikisource.  Obviously we can only host public domain or freely licensed works; which is generally understood.  The problem comes from copyright law itself not being generally understood.  (I can’t claim to be especially knowledgeable about copyright myself but I have picked up a lot as part of the Wikisource community.)

Many people apparently believe certain works must or should be out of copyright without checking or they do check but miss some detail of copyright law.  Wikisource as a project can deal with this by deletion but it still impacts volunteers.

A recent example is the science fiction short story “Time Pawn” by Philip K. Dick, a story that was published in 1954 in an issue of Thrilling Wonder Stories.  Under the law of the time, the initial copyright period ended in 1982 when it could have been renewed for another period.  As this didn’t happen it would seem to have entered the public domain.  However, while the short story was not renewed, the issue of the magazine itself was, under renewal registration number RE0000112616 in January 1982 by CBS Publications.  It has been established, in Goodis v. United Artists Television, Inc., “that where a magazine has purchased the right of first publication under circumstances which show that the author has no intention to donate his work to the public, copyright notice in the magazine’s name is sufficient to obtain a valid copyright on behalf of the beneficial owner, the author or proprietor.”  Lacking information to the contrary, we must assume that this applies to Dick’s story; the renewal of the copyright on Thrilling Wonder Stories also renewed the copyright on “Time Pawn” so, unless it was reassigned, CBS currently hold the rights on the story until about 2050.

The real issue here is that another user, not the uploader, completed the proofreading of the entire story in good faith.  At which point it was noticed by yet another user and rightly marked it as a copyright violation.  Now that good-faith user’s effort is wasted and they may be permanently disillusioned with the project.  Everyone loses.

This is actually partly my fault.  I noticed the upload and I tagged a separate, similar upload (“Small Town“) for deletion for the same reason but I didn’t connect the two.

I’m not sure what else can be done to prevent things like this from happening.  Both Wikisource and Commons already have help pages on copyright that should explain the problem.  Constant vigilance (and better awareness on my part, at least) may be the only solution, but that is unlikely to be foolproof.

Note 1: “Small Town” was published in Amazing Stories, which hardly ever had its copyrights renewed, in the very first issue to do so.  Conversely, Thrilling Wonder Stories, along with the entire “Thrilling…” stable of magazines, apparently had consistent copyright renewals across the board.  Ironically, that isn’t true under its earlier incarnation as simply Wonder Stories, a pulp also created by Hugo Gernsback after he lost control of Amazing Stories.

Note 2: A later version of “Time Pawn” (published in Startling Stories, Summer 1955) appears to have been renewed as well, under RE0000190631 in 1983 by Dick’s children.  This may or may not be relevant; a court could declare it close enough.