old works, new copyrights
- Sony is claiming copyright over “Zorro” and has sent a C&D to Sobini Films, which is wanting to produce a movie set in the future (well, 2010 - barely the future any more!) about Zorro. Johnston McCulley first introduced Zorro in 1919 in The Curse of Capistrano. The BBC article states it thusly: “Sobini contends it acquired the rights to Johnston McCulley’s book The Curse of Capistrano…” “Acquired the rights”? It’s a public domain work! BBC
- OK, this news is from May, but for some reason I just saw it now. A copyright is being claimed on a formerly unknown work by Vivaldi that recently turned up in an archive. Let us remember that Vivaldi died in the 1700s. The opera (”Motezuma”) was found in a German library collection. I can only assume the library is claiming that it was never published and copyright didn’t attach to it?
Imagine if libraries get to own copyrights on things out of their special collections. The resulting treasure hunt will certainly encourage library administrators to put more money into cataloging the special collections departments. On the other hand, what heirs of famous artists and authors will want to donate works that might yet turn out to be profitable for their great-great-great-great-great-several-times-over-grandchildren?
I’m inspired to look into the question of copyright of archived unpublished materials. But off the top of my head, I would suggest that a work being made publicly available in a library collection ought to constitute publication. So, whenever the Vivaldi collection was initially made public, copyright on otherwise-unpublished works begins tolling. The libraries that hold works in their collections will profit as museums do now, from controlling access to the original and licensing reproductions.
Granted, that surely won’t be as satisfying for the holder of the original copy of a composition or literary work, compared with, say, a painting or sketch. In compositions and literary works, the copyrightable expression is all carried by symbolic languages, which are easily replicable. Collectors will still attach value to the original, but the value of the work will flow with the symbolic languages.
With a painting or sketch, on the other hand, more of the value flows with the original work. The work is not reducable into an easily transcribed symbolic language — it can only be distributed by photographic reproductions of the exact work. And even then, the artist’s expression can only be partially captured by two-dimensional photographic reproductions: The original ink and paper were artistic choices, and brush strokes include three-dimensional information that is not easily captured by photographs.
So the papers of famous scholars and artists are not going to be quite the boon for libraries that holdings of museums are. That’s the trade-off of being an archive rather than a museum, IMO. An archive gets a lot of stuff that you haven’t yet had time to classify (less often the case than in a museum), but it’s not as often the kind of stuff that might make your institution a fortune.
algorithmically similar posts:
» blatant copyright infringement!, 2005-05-19 (score:28)» Section 108 report released, 2008-03-28 (score:24)
» some observations about library architecture, 2005-01-13 (score:21)
» owning photographs, 2005-07-21 (score:20)
March 18th, 2006 at 12:00 am
it is important to remember that trademark and copyright are priveleges granted to a particular originator, publisher or author, by the body public. These priveleges are granted in order to encourage the production of works of cultural signifigance. The point to all this is that the true “owners” of this material are “the people.” After all, the cultural significance is created by the place given to a work by the people who watch, listen to, read, or otherwise adopt the product created by the originators.
The question we need to be asking, then, is whether our practice with older material encourages further creation, or compromises it. It seems to me that we have extended copyright beyond the point where it encourages creativity, to the point that it begins to discourage it.
In the case of the Zorro copyright, for instance, a lot of money and effort will be wasted in defence of so-called rights which could better be spent in trying to create more out of the widely known story.
I don’t know the finer points of the law, but I do know that the law should be a meams to an end.
March 28th, 2006 at 3:42 pm
It’s said that The Curse of Capistrano is a public domain work, but I have been unable to find anything that states that it is. I know is was published in 1919 and should be, but can’t find anything that supports that it is. Anyone have any information to state if it is indeed in the public domain.
Jon
March 29th, 2006 at 3:37 pm
If the work was first published in the US in 1919, then it is in the public domain because all such copyright terms have expired. The support you’re looking for would be in the statute setting forth the copyright term; and research that one might do to find out the original publication date and the author’s date of death (if appropriate). It’s the copyright-holder’s burden to prove they have a valid copyright; so one wouldn’t expect to find individual proofs or certifications of a work’s public domain status.
Of course, it can get a bit complex for works not clearly out of copyright term. (Certain music recordings, for instance.) The Copyright Office registry provides documentation of the copyright owners for registered works, so one could start there. Obviously, this is the problem that the recent Orphan Works hearings & proposal are addressing.
If you want to know what’s “clearly” out of copyright term, start here with one of these very good charts that set out US copyright terms. The Copyright Office has some relevant circulars on the topic (circulars 15, 15a, and 15t). And if you’re feeling masochistic, go straight to the statutory source, and spend time in 17 USC § 300 et seq (especially 17 USC § 304 which is particularly tortuous).