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computersto PublishLawyer.com™, a web site devoted to providing reliable information about publishing law, contracts, copyright, trademark, and many other common legal issues affecting writers, publishers, editors, and the Internet community.  You’ll find pertinent articles and free forms presented as a service by publishing attorney Daniel N. Steven.  Be sure to check out our frequently asked questions (FAQ) about publishing law.

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Q&A On Interview Releases

Question:

One of our authors has submitted a book containing lengthy transcripts of previously unpublished interviews conducted in the 1960s.  The location and existence of the interviewees are unknown, and there are no written interview releases.   How can the book be registered for copyright?

– submitted by the publisher of an independent press

Answer:

Unfortunately, if the author does not have a valid transfer of copyright from the interviewees, she cannot claim ownership in the material.  Under the most recent revision of the Copyright Act in 1976, all works originally created before January 1, 1978, but not published or registered by that date, have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978: the life of the author plus 70 years. By contrast, if the interviews had been published before January 1, 1978, they are governed by the 1909 copyright law. Under that law, if a work was published under the copyright owner’s authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States, and the interviews would be in the public domain.

The fact that your author doesn’t have ownership in the interview, however, is not necessarily fatal. She still could claim copyright in the work as a “compilation,” which the Copyright Office defines as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” You would do this by completing section 6 of Form TX. A single copyright notice applicable to the collective work as a whole serves to indicate protection for all the contributions in the collective work regardless of the ownership of copyright in the individual contributions and whether they have been published previously.

Ownership aside, you and your author still have the issue of whether you have the RIGHT to publish interviews, since the author does not have a written interview release.  Small portions of the interviews would generally be considered fair use, but if extensive material from the interview is used, an assignment of rights from the copyright owner (typically, North American/British Commonwealth print rights) is necessary.  Depending on the subject matter, additional provisions for ensuring privacy or attribution may be necessary.

Silence is Not An Option

It is your obligation as publisher to make every reasonable effort to contact all persons or organizations with a copyright claim on the work you wish to publish.  If the copyright owner is dead, his/her heirs could give permission.   And a copyright owner’s silence, even if you have given him or her a deadline, is not considered agreement.  Failure to locate a copyright owner will leave you liable for copyright infringement from the owner or his heirs, but a documented “good faith” effort can help to mitigate damages, so be sure to document your efforts to contact these sources.

Try the Orphanage

If you can’t locate the interviewee or his heirs, the interview may qualify as an “orphan work” – see the Copyright Office’s recent report on this issue.  In that report, the Office recommends a change to the current law that would exempt orphan works from infringement claims; unfortunately, that has not yet been enacted.

© 2010 Daniel Steven


 

Google Book Scan Lawsuit Decision

I have written before about the Author’s Guild copyright infringement lawsuit against Google for its unauthorized digitizing of copyrighted works.  Now, after eight years of litigation, we have a decision.

Briefly, in 2005 the Author’s Guild and other plaintiffs filed a class action lawsuit against Google for its “Book Search,” alleging that Google violated the copyrights of authors and publishers by scanning their books, creating an electronic database, and displaying short excerpts without the copyright owners’ permission.  Google defended its practice by saying it was “fair use.”

A convoluted history.  In October 2008, the class action was settled, subject to court approval.  The settlement terms were complex, but essentially involved a system whereby any author owning copyright could “opt out” of the scanning scheme, and those who did not opt out would receive some compensation from Google’s advertising revenue. Then, on March 22, 2011, over a year after a February 2010 “fairness hearing,” federal Judge Denny Chin rejected the proposed class settlement, primarily because of the strong negative response to the settlement both by authors and the Justice Department.  On May 31, 2012, he issued an opinion denying Google’s motion to dismiss, and granting the individual plaintiffs’ motion for class certification, which Google promptly appealed.  On July 1, 2013, without deciding the merits of the appeal, the Second Circuit Court of Appeals vacated Judge Chin’s class certification and remanded the case to him “for consideration of the fair use issues.”

On November 14, 2013, Judge Chin ruled in favor of Google, not only dismissing the case against Google but delivering an unexpected endorsement of the Google Books scanning program — while also rebuking the plaintiffs.  He wrote, “In my view, Google Books provides significant public benefits.  It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”

Furthermore, “[Google Books] has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books.  It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors.”

What’s Next? Not surprisingly, Authors Guild executive director Paul Aiken said the Guild plans to appeal because the case “presents a fundamental challenge to copyright that merits review by a higher court.”  The appellate court, however, will be the same court that denied class certification and sent the case back to Judge Chin — specifically to consider fair use.  It thus seems unlikely the Guild will prevail.