One of our authors has submitted a book containing lengthy transcripts of previously unpublished interviews conducted in the 1960s.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
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