Re: what are orphan works?

On 9/27/09, joseph harris <[email protected]> wrote:
> From: "Robotech_Master"
>
> Chris,
>
>  This is a very strong case for an easier way to discover where rightsholders are, and that would include details of contracts I'm afraid. However, your personal example does not justify the kind of legislation that is in prospect [possibly by a back door] which actually endangers a great deal of work that not only is not in any sense an orphan, but may actually be being prepared for publication.
>
>  Let me offer two lines of discussion. The first about your MS, the other about your last paragraphs.
>
>  Clearly you are potentially the heir and therefore would be the rightsowner. Your intent is clearly within your purview so long as no licences exist or, if extant, do not affect publication as a book.

Clearly he is *A* potential rightsholder, but may not be
eldest-child-of-eldest-child, and in any case, our inheritance laws
don't automatically give 100% of property to eldest children. They are
different by state, but I believe CA's laws are common--lacking a
will, 50% goes to spouse, and the rest is split among children. If
some children are not alive but their children are, it gets
complicated. And throwing in a will at any stage confuses, rather than
clarifies, the matter of uncertain rights like IP.

Very likely, nobody else has an actual interest in the copyright of
this book--but that doesn't mean nobody else would challenge it.
Perhaps the newspaper it was printed in, has since been bought by
Hearst--and they wouldn't notice the book being reprinted, unless it
started to make real money, at which point, they might insist that
they own copryight to it. Doesn't matter how valid that claim is;
Hearst can afford to spend $15,000 or more to press the issue, and
Chris very likely cannot.

(WHY would Hearst spend that kind of money? Look at the RIAA:
Obviously, returns on these cases is irrelevant. They believe they're
making some kind of point by throwing around lawsuits; they're not
expecting any particular lawsuit to lead to financial benefit.)

>Thus, I suspect, these columns were offered for the State [maybe US or N.America], 1st
> publication rights, daily newspapers [or weekly].

> I can more or less guarantee that the rights asked and granted were confined to original
> publication only.
>
>  I presume you know where the papers were, and your local librarian will be able to help sort
> this out. It may even be worth contacting a journalists' association, which may well have the
> information on record.
>
>  As to your own family, unless your father [and grandfather] had gifted them in a will the
> writings would follow normal lines of succession. If you are the eldest son of an eldest son the
> rights are yours. [Unless American law differes from most western inheritance laws].

Suspect. More or less. Presume. May well have. Unless. If.

That's a lot of maybes to risk one's financial future on.

>  Frankly I cannot see how anyone else could have the slightest claim; unless there was
> a co-author. Family matters I leave to you ;-).

Any other descendant of the same man has a potentially equal claim.
And I have no idea how the courts have decided to deal with
copyrights, in case of a will that states, "All my possessions shall
be distributed equally among my children." Does each have an equal
partial stake in the copyright, or is the copyright to be evaluated,
and assigned a dollar value, and given to one heir in exchange for
rights to an automobile or set of bookshelves?

>  Yours is in no way an orphaned work so far as I can see. Nor would any similar work be in a
> similar situation. To extrapolate from your one example has then, in my view, nothing to do
> with orphan works.

It is orphaned, in that the actual copyright owner is unknown, and no
obvious way to find out exists. Some potential exploration is
possible, but there is no guarantee that such research would turn up a
verifiable owner. It's also possible that Chris has already attempted
this research and found dead ends--if the newspaper went under, rather
than being bought by another corporation, its assets may have been
sold to an unknown person or corporation and be untraceable.

Knowing that most newspaper articles were purchased with
first-publication & sometimes reprint rights only, doesn't mean this
set was purchased that way.

>  But again that would be quite different from offering a power to all and sundry - especially
> big and powerful players - to take anything they fancied and defy owners to sue.

That, I grant. There are some serious problems with the suggested
orphan works legislation I've seen, and Google's settlement workaround
is a fascinating bit of sidestepping the real issues.

But the more I think about it, the more I like the idea of doing
SOMETHING, ANYTHING to address the problem--poorly-worded blurry
legislation that grants too much power to some groups might be better
than the current state of cultural gridlock, where nobody with less
money than Google can risk bringing these works back to the public.

-- 
"I follow Eris blindly in all things. That She is the Goddess of Chaos
simplifies this immensely."  -- Christian the Pagan


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