Re: droit de suite

On 04/07/2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> The fact that the copyright term extension makes it impossible
> to preserve old material is exactly one of the reasons the Eldred
> v Reno suit was filed.

Eric,

The fact is that active preservations efforts are ongoing, and a major problem is lack of funds, not copyright law. A pity you weren't aware of this before you filed. But you may luck out if the other side neglects to mention this. As a taxpayer, I don't like to see the courts clogged with litigation-happy people who don't take time to get their facts straight before they sue. But the courts have so many problems, maybe this is not among the more important.

> For example, I wished to preserve the original illustrations to
> William Dean Howells' "A Hazard of New Fortunes," (not so rare)
> but the library copy I received fell apart in my hands when I
> turned the pages. The text has been reprinted, but not the
> original illustrations. Another example: a class in advertising
> wanted to reproduce magazine ads from the 1920s. It was unable
> to do so because it has now become impossible to find the
> copyright or trademark owners--the companies have vanished, but
> their rights linger on.

Look, if you're convinced the original holder has disappeared, then there's nobody with standing to bring a suit against you for infringing on their rights. So reprint the book. If perchance a rightsholder appears, explain the situation and pay them what's owed. If you anticipate that this project is going to be so immensely profitable that enormous amounts of money will be due to the rightsholder, and it might be a hardship for you to come up with so much money on short notice (your having squandered, of course, your own enormous profit), then do what sensible business persons do. Set up a contingency fund against this contingency.

> Publishers do not wish to maintain inventory, so they shred the books.

The book shreddding began when the IRS changed its rules as to how publishers were to value inventory. This is a problem that ought to be corrected, but not a copyright problem.

> They may return the copyright to the author, but often it is now
> impossible to track down the actual owner of the work.

Very few publishers today provide for automatic reversion. The author has to write and ask.

> Now that the Copyright Office no longer tracks ownership and
> transfers, we who seek to reprint must rely on the good graces of
> the publishers to find the rightsholders.

Why aren't you using the search facilities at the library of congress?   

> I'll give you another example, as if the above were not enough.
> In my suit against the term extension I asserted that I wished to
> reprint the original edition of Sherwood Anderson's "Horses and
> Men," noting that it had not been reprinted since 1923. The
> Sherwood Anderson Trust subsequently joined an amicus brief
> against me, asserting that income from publication of Anderson's
> works supported a writer-in-residence at one of the colleges
> at which one of the trustees teaches. They do not argue that
> they intend to reprint the book nor that proceeds would allow
> this dead author to write more. It would be economical for me
> to reprint the book and give it to the Trust if they were willing
> to post it like I do on the web for free--paradoxically,
> the Trust, which is presumably a non-profit organization that
> can use public funding, is engaged in suppressing Anderson's
> writings--I say in violation of their public trust and against
> the author's wishes if he were alive to say so.

Maybe you've fallen into the temptation to be generous with other people's assets while shielding your own. The SA trust, as many do, will probably at some point enter into an arrangement with a commercial publisher who keeps the books in print and uses a portion of the proceeds to support the desired charitable purpose of sustaining the grants to writers. I fail to see why you should be allowed to interfere just because you want that book when you want it for your own purposes, and you're not willing to make an accommodation that would consider the reasonable needs of the actual owner.

I'm not questioning your image of yourself as a very nice guy who loves to give away books. But you might find many of your problems would evaporate if you could stick to giving away the many books that belong to no one (see above), and either keep your hands off the books that have owners or resign yourself to paying those owners. Most of us are not in your enviable position, where we can devote all of our time to looking for books we can give away at no charge. May I ask how you support yourself? Independent wealth? another business on the side?

pat sloane
<patsloane[_at_]aol.com> Received on Fri Apr 07 2000 - 17:23:18 GMT