Saturday, November 14, 2009

Google Books Ducks Copyright Law, Sort of

I thought this was an interesting article. It reminds me of a case I once heard about from a copyright lawyer:

A publishing company decided to republish a book that was on their backlist. The original contract of course stipulated that the author had to be paid royalties, something they hadn't had to worry about for some time because the book wasn't in print. Most contracts say that if the book goes out of print for a certain amount of time (usually 5-10 years), the rights revert entirely to the author and the author can republish the book with a new company if he/she chooses to, or can negotiate a new contract with the old company if it wants to keep the rights to the book. In this case I don't remember if the publishing company still had partial rights or not; the point was they wanted to publish the book and they had to alert the author.

The problem was they couldn't find him.

The author had vanished without a trace, leaving no living relatives in charge of an estate that would manage the book rights. Living relatives can only get book rights if the will stipulates it; in this case the author had no will and couldn't even be proven to be dead. The publishing company hired the contract lawyer, who went to the judge with all of the documentation. The judge ruled that they had to do a certain amount of regular attempts to find the author - hiring private investigators, posting in newspapers, etc - and if nothing came up, they could republish the book without the author's permission. If, however, the author then reappeared or the author was proven dead and a will surfaced granting rights to living relatives, the publisher would then have to pay back-royalties to the author/author's estate.

I thought this was a very interesting case. A week after I heard him speak, I got my first offer from a publisher. It's been a few years now and I have two books published and a couple in the can. On the way home from shul on Yom Kippur my family happened to walk home with our lawyer/accountant, and I mentioned to him that I should write a will soon because I now have a literary estate that will last for 70 years after my death. It might be a minuscule or nonexistent estate, but it will be there. In fact it will probably be longer than 70 years, as they keep extending that number whenever Mickey Mouse is about to go into public domain, and books I publish in the future may fall into a later time-period extension.

I'm actually against the extension of copyright laws to the point that it has now reached for the written word. Works in the public domain are more published and better-read as a result, and if an estate is large then children are likely to squabble over it, sometimes preventing a book from being republished long enough for it to disappear entirely. Do my potential, currently non-existent heirs need to benefit that badly? If I were to live another forty years, which is extremely possible, my current books won't go into public domain until 2119. Does that sound ridiculous to anyone else?


Anonymous said...

Can an author stipulate that their works become public domain upon their death?

The Rejecter said...

I don't know. I'll have to ask someone.

Amalia Dillin said...

My question is: Why did the rights to Superman revert to the estates of the creators, and not go into the public domain? It's been 70 years since the creation.

I'm not sure how I feel about inherited rights, honestly. Sometimes it just seems like an excuse for greed.

The Rejecter said...

The 70 years is seventy years AFTER the death of the creator.

It doesn't apply to Superman, which was developed in a time with far less developed copyright laws, especially involving comics. The 70 years is for things written after 2002.

Amalia Dillin said...

Then, I think that's kind of a ludicrously long time.

Dave S said...

Though I'm not a published author (yet!) I've had a similar thought about copyright, and come to similar conclusions. I don't know what the solution is, but it probably involves something more like a Creative Commons license than a simple declaration that your work is in the public domain.

Whatever you choose, it probably behooves you publicize your choice as best as you can. It does you no good to declare your work to be in the public domain upon your death if, 25 years later, a potential publisher cannot find evidence of your declaration. In that case, the potential publisher will just assume the copyright is still in effect. said...

You can will you literary earnings post-mortem to a library, museum, school, hospital, etc. You could contribute to humanity instead of assuming kids would squabble over it.

Whoever publishes public-domain work is doing it to make money and, yes, they keep it. I don't know why a tiny portion of it can't be paid to the current owner of the original copyright.

Were publishers to "provide" public-domain works without profit, I would tend to accept your idea that extending copyright control for numerous years beyond the death of the original author migt be a little silly beyond 50 years or so.

But why should one group, publishers, get to buy bigger summer houses and fancier cars without a penny shed to the author's concern, which could be philantrophic, if desired?

Don said...

Given that one can cede one's copyright while alive (simply by declaring the work to be public domain), I can't imagine that something similar can't be done via a will. You may need to consult with an IP lawyer as well as an estate lawyer in formulating your will to make sure everything is done correctly.

Caroline E Willis said...

Neil Gaiman has an excellent post on the subject, as well as a sample will, here:

Thomas said...


You can will your works into the public domain at any time. This happens fairly often.

The story about the AWOL author, there have been a number of precedents recently regarding materials owned by companies that went under, mostly software companies. This body of material us generally known as "abandonware." While the details of software vs. traditional information copyright have yet to be fully fleshed out, I imagine that the publishing company might be able to make a case based on these precedents.

Personally, I think that life-plus rules are pretty foolish. I think a fixed number of years from first publication would be more appropriate and more mindful of the public good. Why should the copyright established by a 19 year old who then lives to be ninety be good for more than twice as long as the the one held by the ninety year old who dies on the date of publication?

Bonita Kale said...

What an interesting situation. I think the idea was that you shouldn't leave an author, who has no pension plan, out in the cold in his/her old age. With the 70 year limit, you're allowing his heirs to profit until their old age, too. I think 50 years would be enough. Or a given period of time, but it would have to be long, in these days of longevity and expensive old age. A hundred years?

angelicajulia said...

I think as long as the author is alive, the copyright should be his/hers. No offense, but I mean come on the author created that story himself and should be entitled to owning the copyright until they die.

As for what happens after death, I think should be established in every author's own will.

If I do ever become published, I already solved the issue of greedy children:
1. Don't raise them to think they're entitled to everything. (Mainly because I wasn't so why should they?)
2. Actually use the money while you are alive, and leave something for a foundation, etc.

By the way, I find the story amazing. The guy vanished without a trace? That's crazy. said...

As a published author with over 300 books (about half still in print and often coming BACK into print) I have a different take on this. My work is my family farm. My children work with me, either writing some books with me (yes, their names are on the books they work on) or working on the office stuff like filing, fan mail, web master, making of book trailers, official photographer etc.

They know what I want done with the books and stories and poems and essays after I die. What kind of movie rights to sell. The mss. that have not sold yet--and what to do with them. They know what monies and extra books I want to go to charity; they know which libraries, which schools, which floundering authors to support.

Why should the publishers alone (or movie makers) profit from my work or make decisions about my work when I am not there? My children have been part of my farm/business for years and have worked hard with me to build it up.

Just another viewpoint.

Jane Yolen