Work for hire and public domain please help

Hi there

This ones a real toughie guys, so I need your expertise. I have a similar question that unfortunately for me no one can answer, not even after taking councils advice and consulting a top copyright specialist in the UK.

If a publisher who is also a limited company becomes dissolved and has no creditors and the said company claimed to own the copyrights to a children's comic book that they produced in 1951 (including story, characters and artwork)
After the company's dissolution who would then own copyright to the characters ?
Would it be..

1. The estate of the publishers family that claimed to own the copyright
2. The writer and artist who's company was commissioned to produce it. (who in this case is not the publisher)
3. Or could the British government lay claim to the rights under the "Bonna Vacantia" rule (which by the way I think is a very dubious rule when applied to creators rights.) If the writer and artist who was commissioned by the publisher to produce the comic book had no actual written contract with the publisher, could the writer/artist still be considered a "work for hire"? given that the writer/artist had his own premises, his own staff and had his own independent company. Is there anyway that this could be seen as a "work for hire situation"? The writer/artist is the sole designer and creator of the characters in name and in image form, he would then "farm the work out" to his staff who then worked on the characters after his initial creation. This is an unusual situation in that both companies have their respective copyright notices on the comic book. The publishers says "all characters are copyright the publishers" and the writer/artist has © followed by his name on the front cover of the comics and annuals, his is the only © notice that ever appeared in the publication. What I'm trying to determine is who has the strongest claim to copyright on the characters now? given that the publisher is deceased and the creator is still alive? or could it be that their a possibility that they could now be in the public domain by default? even though UK copyright law stipulates that copyright expires 70 years after the death of the author. The real question is guess is that in this situation, who is the author? So far I have not found a UK lawyer who can give me a definite answer on this one and it is getting quite frustrating to say the least.

If someone could please help then I would be grateful as the writer/artist is a relative of mine and I want to know if at the very least has any grounds for "moral rights" or otherwise.

Many Thanks

Jake

• Original Message ----- From: "Bernard Katz" <bkatz[_at_]uoguelph.ca> To: "CNI-COPYRIGHT -- Copyright & Intellectual Property" <CNI-COPYRIGHT[_at_]cni.org> Sent: Friday, March 03, 2006 6:40 PM Subject: [CNI-(C)] Re: Fair use

>
> On Tue, 28 Feb 2006, Samuel Murray wrote: wrote:
>
> > ...[snip]... The way I understand it, "fair use" is
> > not something which is either granted or withheld by the author of work.
> > Instead, it is a concession granted by law or in terms of the principles
of
> > fairness itself. There is nothing an author can do, legally speaking,
to
> > prevent the use of his work if such work is deemed "fair use". Even if
the
> > author would try to prevent copying, and fails to do so, and the copying
> > would be "fair use" type of use, the fact that he had attempted to
prevent
> > the use would have no legal effect on the measure of fairness of "fair
> > use", am I right?
>
> I also agree that Samuel Murray almost has it completely right. But the
> difficulty here, as I see it in both "fair use" and "fair dealing" is that
> the decision as to whether a specific use is considered "fair" or not lies
> in the hands of a judge, AFTER use has been made of the work. A user may
> have a pretty good idea, based on the criteria already discussed, as to
> whether the use about to be made is fair, but said use is not actually
> deemed to be fair until a suit is brought and judgement rendered. Thanks
> to our Australian colleague, I can now be certain that the Australian Act
> gets around this initial degree of uncertainty for users quite nicely. As
> has been pointed out, however, what had been designed as a minimum to be
> considered fair dealing (ie. at least this much) has gradually turned into
> what to all extents and purposes is a sort of 'standard' of fair dealing.
>
> Cheers,Bernard Katz, former head, Special Collections and Library
Development
> McLaughlin Library, University of Guelph
> author, descriptive bibliog. of L.M. Montgomery's books (in progress)
> and former chair, Ontario Library Association Copyright Task Force
>
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Received on Mon Mar 06 2006 - 21:35:50 GMT