Template talk:PD-US-no-renewal-unvested

Initial discussion
The discussion that approved this template can currently be found here:


 * Wikisource:Possible copyright violations/Archives/2012-09#Undelete assorted pulp fiction works (PD-US-not-vested)

-- AdamBMorgan (talk) 00:15, 9 September 2012 (UTC)

Follow-up reservations
New information has come to light since the Initial discussion (above) took place and I feel the current usage of this template needs to be modified accordingly. The overall premise and rationale behind no-renewal for unvested works remains intact but additional caveats under certain circumstances may now invalidate the previously understood consensus.

The legal case shedding additional clarity on the previous points used to support the 'No-Renewal-Unvested' premise comes from the U.S. Court of Appeals for the Ninth Circuit's opinion in Self Realization v. Ananda Church (2000). I urge folks to carefully spend some time reading the entire opinion before coming to any conclusions or adding additional comments. Please note that there is a link in the Notes field that takes you to an additional copyrighted summary of the un-copyrightable opinion by West[Law] Group.

Key points summarized
First, for works created before 1978, the Copyright Act of 1909 governs the validity of the initial copyrights. These initial statutory copyrights ran for a 28 year term. Under the 1909 Act, the holder of the common law copyright at the time of publication, either the author or the author's assignee, was the party entitled to receive statutory protection. Assignments did not have to be in writing to be enforceable. Authors could assign their common law copyrights "without the necessity of observing any formalities". Additional case law has held that under the 1909 Act, common law copyrights could be transferred orally or by implication from the conduct of the parties.

Second, blanket copyrights on magazines were sufficient to "protect all the copyrightable components of the work copyrighted" and gave to the copyright proprietor "all the rights which he would have if each part were individually copyrighted under" the Act. The weight of the case law has concluded that this means that a blanket copyright gives a magazine publisher rights in an individual contribution only if the publisher owns the common law copyright as the author of the contribution, or as the author's assignee.

Third, the 1909 Act vested renewal rights in the author, if still living at the time the initial copyright term expired, or the author's next of kin or executor if the author was deceased. The 1909 Act contained only four exceptions to this exclusive right of reversion. A copyright owner who was not the original author could renew copyrights in (1) posthumous works, (2) periodical, encyclopedic, and composite works, (3) works copyrighted by a corporate body (other than as an assignee or licensee of the original author), and (4) works made for hire.

Fourth, until 1940, section 24 of the 1909 Act also permitted individual authors to renew copyrights in periodical contributions "when such contribution has been separately registered." In 1940, Congress deleted the separate registration requirement, permitting individual authors to renew copyrights in periodical contributions even if the only initial copyright on the work existed by virtue of the publisher's blanket copyright. As a result of this 1940 amendment, some would argue that only the author of a periodical contribution can retain a renewal right in the work. This is incorrect. Although the courts recognized that the 1940 amendment granted a new renewal right in individual authors of magazine contributions, the courts also made it clear, however, that this new right did not extinguish the pre-existing right in the magazine publisher. Congress was simply concerned about situations in which the publisher went out of business before the initial copyright expired, leaving no one to renew the copyright and thus injecting the work prematurely into the public domain. Under the unambiguous terms of section 24 of the 1909 Act, magazine publishers are entitled to renew any initial copyrights in periodical articles that they validly obtained through an informal assignment of the author's common law copyrights.

Additional references
A list of cases and/or authorities frequently mentioned or cited in relation to the issue concerning periodicals and the status of "rights".

Court cases

 * Dam v. Kirk La Shelle Co., 166 F. 589, (C.C. S.D.N.Y. 1908),
 * aff'd, 175 F. 902, (2d Cir. 1910); < ( in Lawyer's Edition, starts p. 1002 )
 * Miller Music Corp. v. Charles N. Daniels, Inc., 158 F. Supp. 188, (D.C. S.D.N.Y. 1957),
 * aff'd,, (2d Cir. 1959),
 * aff'd, 362 U.S. 373 (1960);
 * Geisel v. Poynter Prods., Inc., 295 F. Supp. 331, 343-44 (S.D.N.Y. 1968);
 * Best Medium Publishing Co. v. National Insider, Inc., 259 F. Supp. 433, (N.D. Ill.),
 * aff'd, (7th Cir. 1967),
 * cert. denied, 390 U.S. 955 (1968);
 * Alexander v. Irving Trust Co., 132 F. Supp. 364, (S.D.N.Y.),
 * aff'd, (2d Cir. 1955),
 * cert. denied, 350 U.S. 996 (1956);
 * James Stewart, et al., v. Sheldon Abend, dba Authors Research Co.,
 * reconsidered,, (CA9 1988),
 * aff'd, 495 U.S. 207 (1990);

Authorities

 * Caterini, Contributions to Periodicals, 10 ASCAP Copyright L. Syrup., p. 321, (1959);
 * Henn, "Magazine Rights"-A Division of Indivisible Copyright, 40 Cornell L.Q., p. 411, (1955). Partial View
 * Mayer, The Transfer of Copyright Ownership to Periodicals, 46 Fordham L. Rev., p. 907 (1978).
 * Wachtel, Copyright Law — Definition of "Posthumous Work" Under Section 24 of the Copyright Act of 1909 — Bartok v. Boosey & Hawkes, 17 Boston College L. Rev. p. 895 (1976).

New discussion
As all the above relates to the prior discussion in the matter of non-vestable works hosted here on en.WS, I believe we are faced with at least one new glaring caveat to the existing guidelines...


 * Works first published in periodicals and/or similar composite works (i.e. magazines, serials & the like) that were initially registered and governed under the 1909 Act's authorities must strive to answer the question of whether or not the publisher of such bodies of work also validly obtained the assignment of the individual author's common law copyrights prior to publication in addition to any blanket copyrights that may or may not exist for the particular publication in question as well as any subsequent/concurrent registrations that may or may not have been made by the individual author at the same time or since.

Therein lies the problem. While it seems proper books, songs and films are not generally subject to the four exemptions to the exclusive rights of reversion, contributions to various composite works might be. On the one hand, it can be argued that the registrations published in the catalogs or the certificates issued to registrants are entitled to a presumption of validity under the 1909 Act because each "shall be admitted in any court as prima facie evidence of the facts stated therein". At the same time & on the other hand, case law has held that "a party's own descriptions of the nature of its copyright at the time of copyright registration or renewal is not conclusive" and that "such descriptions may be self serving, and the copyright laws are not to be applied mechanically, facilitating premature injection into the public domain, but rather in a 'fair and non-formalistic' manner".

The existence of a transfer or assignment of common law copyright, however, is a factual question of the author's intent according to the courts. Evidence must clearly support the assertion that none of the four exemptions are in play given the work in question for the current 'No-Renewal, Unvested' standard to remain valid the way I see it. If the possibility of an exemption exists in your eyes as well at this point, to what extent should we adjust the trigger for inclusion/exclusion? What would be the threshold for acceptable evidence to support inclusion? What would be the minimum needed for exclusion? Your input is appreciated. -- George Orwell III (talk) 12:19, 2 December 2012 (UTC)


 * This is just a quick note to say I've read this page but I have not had time yet to read the linked works. (Also, only a handful of works have been restored under these terms; most of the uses of this template are on pre-existing works that I only recently noticed are covered by it.) - AdamBMorgan (talk) 14:03, 5 December 2012 (UTC)


 * No worries; take all the time you or anyone else may need & its totally up to you if you want to continue the admittedly needed housekeeping or not. I'm still [re]reading the court cases and other citations related to this stuff while trying to find online copies of them to link to anyway. Its been kind of tough to find authoritative analysis/commentary covering the appropriate era(s), etc., that are specific to the 4 caveats (periodicals being the most relevant one here) online. Most of those academics, of course, followed the highest standards of protecting their own works (i.e. were a bunch of fart smellers). -- George Orwell III (talk) 23:03, 5 December 2012 (UTC)

Works
Do we think we are improperly hosting any works, that are supported solely by the questioned interpretation? JeepdaySock (AKA, Jeepday) 11:44, 6 December 2012 (UTC)
 * There are 22 works in Category:PD-US-no-renewal-unvested at time of writing. All of those are Lovecraft/Howard + Weird Tales as those were the only cases covered by the discussion that started this and the cases with which I am familiar.  I saw a Philip K. Dick work a while ago that might be covered by this as well but I was cleaning up the formatting, not checking the licensing, and didn't have time to get into it then.  I will probably be doing more Amazing Stories work in 2013, which might reveal some more works like this, although they renewed issues even less than Weird Tales.  As everything is tagged and categorised, it should be easy to identify and delete if we make that decision. - AdamBMorgan (talk) 13:01, 6 December 2012 (UTC)
 * Now I wish I had directly checked that earlier - I might have let sleeping dogs lie. It was more the timing of recent discussions over a couple of proposed deletions around the same week(s) some "template-tidying" of existing works was taking place than anything else that (re)ignited my concerns over the template's rationale & usage. We have so many short stories, poems and similar works of less-than-book length that I assumed some noteworthy chunk would be falling into this general sub-class primarily concerning periodicals published between (at least) 1924 & 1964. Obviously, I overestimated the range of affected works actually using the template. My apologies to Adam if one is warranted; this honestly wasn't about revisiting the previous restorations but about getting the justification & parameters right then moving forward on them accordingly. -- George Orwell III (talk) 01:07, 7 December 2012 (UTC)
 * This is a good time for the discussion. Get it worked out before there are lots of works dependent on the decision. JeepdaySock (AKA, Jeepday) 11:35, 7 December 2012 (UTC)
 * There might be more works around that are just not tagged yet. About half of those are Lovecraft works I noticed recently while doing something else; I think the assumption is that all Lovecraft's work is automatically in the public domain (NB: Fungi from Yuggoth is complicated by being initally published in multiple places).
 * Knowing that there needs to be a discussion is useful. I was considering buying and scanning an early Lovecraft collection to replace some of the unsourced works we have: Best Supernatural Stories of H. P. Lovecraft (1945).  That book, however, includes "The Rats in the Walls" and "The Whisperer in Darkness", which are on the 'unvested' list.  So, I will probably hold off on that for the near future. - AdamBMorgan (talk) 13:33, 7 December 2012 (UTC)

Suggestion
Given that this license requires some research, and possibly some community discussion, and that each instance is unique to the author. I suggest a change that indicates on the template that related research and links to discussions (if any) are on the authors talk page. Any Questions about the appropriateness for use of the license should be conducted by Author at WS:CV. JeepdaySock (AKA, Jeepday) 16:01, 12 February 2013 (UTC)


 * It really comes down to only works first published in periodicals (i.e. NOT books) and the caveat would be to check in addition to any renewal made in/under the author's name (A), a check to see if the "blanket copyright" per periodical-issue-number (PCW) was renewed. And its not enough to just provide the renewal registration number by one party or the other - in these cases, the original first-term copyright registration number would be useful in determing copyright status one way or the other. -- George Orwell III (talk) 17:36, 12 February 2013 (UTC)