Re: RARA-AVIS: public domain

From: David Moynihan (
Date: 25 Jan 2005

On Sun, 23 Jan 2005 01:15:10 -0600, Michael Etchison
<> wrote:
> So how does one go about finding whether a particular title is or is not in
> PD (or, obversely, whether its copyright is still in effect or validly
> renewed)?
> Michael E. Etchison
Let's see. There's a couple ways you can do this:

One is to spend $150 or so an hour and hire a somebody to do a search for you, thus determining, over time, whether or not the work has been renewed. The LOC also offers this service. You're typically on your own, however, if you act on bad data.

Or, you can recognize that renewal requirements exist for anything published prior to '64, and visit the following places:
(has facsimile reprints of all book renewals from 1923-1977. ) (a very big file!)
(has OCR'd and edited text of book renewals from same period.)
(has ALL renewals after 1977.)

Keep in mind, particularly if you're using the OCR'd text from PG, there are some errors there, the work is not yet final (but it's a damned useful file), so double-checking the page scans is important.

In the same vein, post-Eldred and SCO, courts have really tightened up on registration requirements before allowing claims to go through. So, if it's a renewed copyright with author as claimant, and the author died before filing his claim (Davis Grubb, Lionel Olay, etc.) the work is public domain, or whatever, but you can't be sued. Best example of this is David Goodis, whose works were renewed twice after his death... once by the bank representing the estate (did it properly), and once by, umm, David Goodis, author. (A Grubb title is similarly configured). I've heard all the Weird Tales are PD for equivalent, ineligible-renewer-downfield-type reasons, but you'd have to check on that yourself (you'll have to go in person to look up magazine renewals, likely to a very big library or the LOC itself; yes, they will confiscate your nail clippers). Even the slightest mis-spelling can blow a registration, just make sure you check the scanned copyright entries.

2, Know your publisher. Certain companies (Penguin, Kensington, Dover) are earnest little beavers, who observe the letter of the law in their copyright notices. If they say it's renewed; it's renewed. Corollary to this, certain other publishers (Grove-Atlantic, Caroll & Graf, Random in the Conde Nast days), had a nasty habit of posting false notices, claiming renewal when no such renewal occured (Fred Brown, Dash Hammett, etc.) Most other firms (Harcourt, HarperCollins and S&S) tend to err on the side of caution.

Additionally, you'll sometimes find certain publishers/estates to be extremely zealous in the *protection* of public domain cash cows
(ahem, Wodehouse, ahem), and the vast majority of copyright cases never get to trial because said agents, publishers, estates are into hardcore scaring to get the works pulled.

Should you run into one of these, remember the following numbers:

1, 3 year statute-of-limitations on publication, after which no action can be taken (some titles are so far past that limit we're seriously looking to apply real estate law to intellectual property.) 2, $2,500 fine, each instance, for posting a false notice on a copyrighted work ("edition" copyrights are OK but not especially enforcable post-Penguin... why anyone screwed this up I'll never know). 3, $250,000 fine, each instance, for making a false copyright claim in the courts. (And a defamation counter-suit, of course.) 4, 20,000 young lawyers (approximate annual production), who worship Larry Lessig as a god for his work in Eldred, and would like to emulate him, pro bono, but maybe do a better job in court (hopefully a lot better).

One other part of copyright that's been won for the good guys centers on the "Unclean Hands Doctrine," and depending upon the outcome in the latest case (Kahle vs. Ashcroft), you'll probably see something filed there, regarding false notices above. (Random House has kind of gotten their act together on this one... but the fraud clock starts from the minute PG's text, above, goes final).

Obviously, most of the court-related stuff gets people averse, but remember to check those three places above before renewals, watch out for certain extremely zealous estates/supposed rights-holders, if you're wrong, really wrong, apologize profusely and pull the work immediately. But don't worry, even if someone else takes the risk you decline, you can still badmouth them ad infinitum.

> ________________________________

David Moynihan
Disruptive Publishing (forthcoming)

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