copyright

From: David Tetzlaff (email suppressed)
Date: Sat Feb 16 2008 - 06:46:51 PST

I had suggested ads and film stills might be Gene's biggest problems,
but only under the umbrella idea of noting that these are more likely
to come from larger commercial ventures that would have copyrighted
their product. Jim rightly notes that the majority of advertising in
an alternative paper would have come from smaller local 'alternative'
businesses who would have been highly unlikely to copyright their
advertising. However, NEVER underestimate the abilities of a corporate
copyright attorney if the whiff of money is in the air. A local
headshop, now long defunct, may have advertised a new LP release by
including an image of the cover in the ad. The cover art on Led Zep
II, say, would have been copyrighted, and is no doubt still in
copyright. Whether the head shop had explicit rights to use it in
their ad or not, nobody was going to complain. But if Gene republishes
this, that cover art would open the door, IF the rights holder decided
to care now. BUT...

... again, the larger points are 1) it doesn't matter how clean you
are, they can sue you if they want to 2) they won't want to sue you
unless they can get enough money out of the deal to make it worth
their time OR repressing your effort makes some significant kind of
public statement OR a well-off entity might feel embarassment at the
retrieval of certain things from the past they would rather see stay
buried in the mists of time 3) if you get sued, you're screwed if the
entity suing you has more money than you do regardless of the
righteousness of your position.

When you speak to an attorney, you must speak to the right attorney,
and you must ask the right questions. The most important thing is to
determine how realistic a target your proposed book would be for a
lawsuit, which depends far less on the degree of actual copyright
violation it might contain, than on the benefit someone could derive
from suing you. If this is a book that would receive wide distribution
and have the potential for significant sales, you'll probably be
advised to be extremely careful about clearances -- which will
basically place you in the inner circle of hell trying to track down
the rights status and current rights holders. If the book is aimed for
a niche market, you're doing it for the love, and you and the
publisher will be happy to cover your costs, tracking down those
clearances is a waste of time, and you should should just put the
thing out there - as you, the publisher, and the book itself are all
the proverbial turnip.

A low-profile book might still be a target for folks who might not
want the work republished for personal reasons. Here, you need only
worry about folks with enough money to pursue legal action for the
sake of vanity. An attorney is not going to take the case on spec,
unless the defendants look like ripe apples. There's probably no way
to predict this kind of thing in advance, if you don't already have
hints, so I wouldn't worry about it.

On Feb 15, 2008, at 7:50 PM, FRAMEWORKS automatic digest system wrote:

> There are 5 messages totalling 914 lines in this issue.
>
> Topics in this special issue:
>
> 1. copyright (4)
> 2. Thanks
>
>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at <email suppressed>.
>
>
> ----------------------------------------------------------------------
>
> Date: Fri, 15 Feb 2008 11:16:34 -0500
> From: David Tetzlaff <email suppressed>
> Subject: copyright
>
> As I've no doubt written here before, copyright is not about what is
> or is not legal. The law is pretty vague when it comes to any kind of
> 'Fair Use' application, which leaves it up to a court to decide. Of
> course, most cases don't get to court. They're settled outside of
> court because the parties chose to avoid the time and expense of
> continued litigation. In practice, copyright is what you can get away
> with: which is true in general of any aspect of civil law. That is,
> it's all about the abilities of the potential plaintiff and defendant
> to pursue and sustain a legal contest.
>
> So, let's say when all is said and done, Gene is really within his
> rights to publish his book. However, one of the copyright holders of
> the ads in the mag is a large corporation, and decides they don't want
> anyone messing with their 'intellectual property.' It doesn't matter
> if they're wrong, as long as their attorney can draft a remotely
> credible brief: they've got more money than God and they can threaten
> Gene with a legal fight that would exhaust his financial resources and
> his time. So, unless he wanted to have defending his rights become his
> new full-time job and asset-gulping charity, he'd have no realistic
> option but to cease and desist. This is why all small publishers
> demand usually demand total written permission on any copyright
> questions, even ones that are obvious Fair use exceptions (e.g. frame
> grabs). They don't want _any_ risk of being sued, so they pre-cave.
>
> On the flip-side, it doesn't matter if Gene's republication of the
> paper DOES violate someone's copyright, unless that copyright holder
> has motive and resources to sue Gene or his publisher. Since
> attorney's aren't cheap, the motive usually has to involve a
> significant economic incentive for the plaintif. So most copyright
> cases are brought against defendants from whom significant monetary
> damages can be extracted. If Gene's book goes to a (poor) small press,
> and has limited circulation, there's little financial motivation. If
> it's published by Harper Collins, they're going to get sued for sure.
> The other incentive for copyright holders to sue is to avoid
> precedent. So if Gene's book would present something like a first in
> the circulation-without-recompense of copyrighted material, a big
> copyright holder might be jolted into action.
>
> In any event, the gatekeeper becomes the publishing house, which, more
> than the author, is a potential target of litigation. And again its
> not about whether its legal or not in the end, but about whether the
> publisher is able and willing to defend themselves against a litigious
> attack.
>
> For the most part, "alternative culture" flies below the litigation
> radar. Awhile back someone posted a link here to a website where DVDs
> of bootlegged films and video are sold openly. The guy has a huge
> catalog, but it's all old or weird stuff that isn't in active
> commercial distribution. He has a disclaimer on the site saying that
> as far as he knows, all the works have been abandoned by the rights
> holders, and if anyone with rights to a specific title complains he'll
> withdraw it. However, this hardly exempts him from the fact that what
> he's doing is clearly illegal. The point though is, why would the
> studio that holds the rights to one of the old films care? This
> distributor appears to be operating as a mom and pop small business,
> not publicly prominent, and doubtless without resources to yield
> damages that would cover attorney's costs. The legal guys have better
> things to do: going after targets with deeper pockets, or devising
> actions (like the RIAA mass suit of individual downloaders) that make
> a bigger 'statement" .
>
> This no doubt why Mr. Kunkin of the Free Press was able to tell Gene
> he's never had a problem: it's not that his copyright on the pub makes
> him absolutely clear on the entirety of the contents, especially the
> ads and the film stills. It's more likely that he's just not worth
> suing.
>
> So, the folks Gene needs to talk to are his potential publishers, to
> see what kind of 'exposure' they're willing to risk. If they displace
> the rights issue to someone else, say if Kunkin were to provide a
> written document declaring himself the sole owner of all rights and
> granting permission to the press, that might help. But if this book
> could have significant circulation, and if royalties of any
> significant amount would be due to Gene or Kunkin from it's sale
> Kunkin's attorney would probably tell him not to sign such a document,
> and the presses attorney would probably tell them that possesing such
> a document would be a weak defense in court against an argument that
> it was a failure of due diligence to follow up on Kunkin's claim that
> he was the sole rights holder where ads an stills from third parties
> are involved.
>
> Under the law at the time these works were published, as Jim points
> out, obtaining copyright required an official registration. Any
> commercial producer/distributor would likely have received
> registrations that would cover stills and ads, and if so this material
> would NOT be in the public domain now. (Again, not that it matters.
> Even if they have little or no grounds for a lawsuit, they can still
> file one, and bully you out of publication.)
>
> Of course, taking a step back from the legal arena, and the litigation
> habits of corporate copyright holders, this is all kind of silly. By
> reproducing stills and ads, Gene and his publisher would essentially
> be giving the copyright holders of the works referenced free
> advertising, re-circulating attention to now-obscure films, which
> increases their market value. They should welcome the book, but that;s
> not how they think.
>
> Jim also raises the question of whether Mr. Kunkin's copyright extends
> to republication of the articles written for the magazine, or whether
> the rights revert back to the author. Some of the authors might feel
> that if their work is being re-used in another medium they ought to
> get paid. This, after all, is what the WGA strike was about, what
> writer complaints against periodical publishers now are about....
> Freelancers who had work published in the Free Press may not care, or
> may not have the resources to mount a legal threat to Gene or his
> publisher. But the moral calculus is different than reprinting ads or
> publicity stills.
>
> As a final note, this republishing project strikes me as something
> that might best be dealt with under the Creative Commons umbrella...
>
>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at <email suppressed>.
>
> ------------------------------
>
> Date: Fri, 15 Feb 2008 10:36:18 -0600
> From: Regina Muff <email suppressed>
> Subject: Re: copyright
>
> --_4862ea3c-01fa-4948-8bdd-a53a600df8fc_
> Content-Type: text/plain; charset="iso-8859-1"
> Content-Transfer-Encoding: quoted-printable
>
>
> ah precaution. afterimage just published articles on high
> performance and g=
> eneral idea. where are you now, kathy high? can we not mourn the
> loss of =
> felix? bernie thanks but we dont need another scholar. from mulvey
> to kipn=
> is they all eventually write. (jeanne c finley began with such
> promise and =
> now? it's blockbusters on nazis and russians.) (freya freya where
> is that =
> elevator?) reinke glued pages from freud together, now hes writing
> with ros=
> alind kraus (and who can blame him? anyone know how did laura u
> marks start=
> ?). somewhere theres a victim of copyright law but could it be on
> this lis=
> t? hmmm
> =20
> gina
>
>
> Date: Thu, 14 Feb 2008 22:42:15 -0500From: (address suppressed):
> Re: cop=
> yrightTo: email suppressed
>
> P.S. One way of researching copyright status from home and for free
> is this=
> :
> =20
> http://onlinebooks.library.upenn.edu/cce/
> =20
> In my experience, doing these kind of things occasionally to
> determine publ=
> ic domain status, surprises will crop up-- such as, no on ever
> registered t=
> he thing properly!
>
>
> The year's hottest artists on the red carpet at the Grammy Awards.
> AOL Musi=
> c takes you there.
> __________________________________________________________________
> For info=
> on FrameWorks, contact Pip Chodorov at <email suppressed>.=20
>
> _________________________________________________________________
> Shed those extra pounds with MSN and The Biggest Loser!
> http://biggestloser.msn.com/=
>
>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at <email suppressed>.
>
>
> --_4862ea3c-01fa-4948-8bdd-a53a600df8fc_
> Content-Type: text/html; charset="iso-8859-1"
> Content-Transfer-Encoding: quoted-printable
>
> <html>
> <head>
> <style>
> .hmmessage P
> {
> margin:0px;
> padding:0px
> }
> body.hmmessage
> {
> FONT-SIZE: 10pt;
> FONT-FAMILY:Tahoma
> }
> </style>
> </head>
> <body class=3D'hmmessage'>
> ah precaution. afterimage&nbsp;just published articles on high
> performance =
> and general idea.&nbsp; where are you now, kathy high?&nbsp; can we
> not mou=
> rn&nbsp;the loss&nbsp;of felix?&nbsp;bernie thanks but we dont need
> another=
> scholar.&nbsp; from mulvey to kipnis they all eventually write.
> (jeanne c =
> finley began with such promise and now? it's blockbusters on nazis
> and russ=
> ians.)&nbsp; (freya freya where is that elevator?) reinke&nbsp;glued
> pages =
> from freud together, now hes writing with rosalind kraus (and who
> can blame=
> him? anyone know&nbsp;how did laura u marks start?).&nbsp; somewhere
> there=
> s a victim of copyright law but could it be on this list?&nbsp;
> hmmm<BR>
> &nbsp;<BR>
> gina<BR><BR><BR>
> <BLOCKQUOTE>
> <HR>
> Date: Thu, 14 Feb 2008 22:42:15 -0500<BR>From:
> email suppressed<BR>Subject:=
> Re: copyright<BR>To: email suppressed<BR><BR>
> <META content=3D"Microsoft SafeHTML" name=3DGenerator><FONT
> id=3DEC_role_do=
> cument face=3DArial color=3D#000000 size=3D2>
> <DIV>P.S. One&nbsp;way of researching copyright status from home and
> for fr=
> ee is this:</DIV>
> <DIV>&nbsp;</DIV>
> <DIV><A href=3D"http://onlinebooks.library.upenn.edu/cce/"
> target=3D_blank>=
> http://onlinebooks.library.upenn.edu/cce/></DIV>
> <DIV>&nbsp;</DIV>
> <DIV>In my experience, doing these kind of things occasionally to
> determine=
> public domain status, surprises will crop up-- such as, no on ever
> registe=
> red the thing properly!</DIV></FONT><BR><BR><BR>
> <DIV><FONT style=3D"FONT: 10pt ARIAL, SAN-SERIF; COLOR: black">
> <HR>
> The year's hottest artists on the red carpet at the Grammy Awards.
> <A title=
> =3Dhttp://music.aol.com/grammys?NCID=3Daolcmp00300000002565
> href=3D"http://=
> music.aol.com/grammys?NCID=3Daolcmp00300000002565"
> target=3D_blank>AOL Musi=
> c takes you there.</A></FONT></DIV>
> __________________________________________________________________
> For info=
> on FrameWorks, contact Pip Chodorov at &lt;email suppressed&gt;.=20
> <P><BR></BLOCKQUOTE><br /><hr />Shed those extra pounds with MSN and
> The Bi=
> ggest Loser! <a href=3D'http://biggestloser.msn.com/'
> target=3D'_new'>Learn=
> more.</a></body>
> </html>=
> <p>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at
> &lt;email suppressed&gt;.
> <p>
>
> --_4862ea3c-01fa-4948-8bdd-a53a600df8fc_--
>
> ------------------------------
>
> Date: Fri, 15 Feb 2008 10:04:37 -0700
> From: gyoungblood <email suppressed>
> Subject: Thanks
>
> This is a multi-part message in MIME format.
>
> ------=_NextPart_000_0037_01C86FBA.2C2C9AA0
> Content-Type: text/plain;
> charset="Windows-1252"
> Content-Transfer-Encoding: quoted-printable
>
> Thanks, everyone, for your valuable input re copyright. I've decided
> to =
> compile your responses and take it all to an attorney. I've spent
> many =
> years and a lot of money on this project, and I don't want to blow
> it.=20
>
> Gene Youngblood
> 28 Sunrise Road
> Santa Fe, New Mexico 87507 USA
> vox/fax: +1.505.424.8708
> email suppressed
>
>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at <email suppressed>.
>
>
> ------=_NextPart_000_0037_01C86FBA.2C2C9AA0
> Content-Type: text/html;
> charset="Windows-1252"
> Content-Transfer-Encoding: quoted-printable
>
> <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
> <HTML><HEAD>
> <META http-equiv=3DContent-Type content=3D"text/html; =
> charset=3Dwindows-1252">
> <META content=3D"MSHTML 6.00.6000.16608" name=3DGENERATOR>
> <STYLE></STYLE>
> </HEAD>
> <BODY bgColor=3D#ffffff>
> <DIV>Thanks, everyone, for your valuable input re copyright. I've =
> decided to=20
> compile your responses and take it all to an attorney. I've spent
> many =
> years and=20
> a lot of money on this project, and I don't want to blow it. </DIV>
> <DIV>&nbsp;</DIV>
> <DIV>Gene Youngblood<BR>28 Sunrise Road<BR>Santa Fe, New Mexico
> 87507=20
> USA<BR>vox/fax: +1.505.424.8708<BR><A=20
> href=3D"mailto:email suppressed</A><BR></DIV></
> BODY=
>> </HTML>
> <p>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at
> &lt;email suppressed&gt;.
> <p>
>
> ------=_NextPart_000_0037_01C86FBA.2C2C9AA0--
>
> ------------------------------
>
> Date: Fri, 15 Feb 2008 19:24:32 EST
> From: Jim Carlile <email suppressed>
> Subject: Re: copyright
>
> -------------------------------1203121472
> Content-Type: text/plain; charset="US-ASCII"
> Content-Transfer-Encoding: 7bit
>
>
> Just what the hell are you talking about?
>
>
>
> In a message dated 2/15/2008 8:43:09 A.M. Pacific Standard Time,
> email suppressed writes:
>
> ah precaution. afterimage just published articles on high
> performance and
> general idea. where are you now, kathy high? can we not mourn the
> loss of
> felix? bernie thanks but we dont need another scholar. from mulvey
> to kipnis
> they all eventually write. (jeanne c finley began with such promise
> and now?
> it's blockbusters on nazis and russians.) (freya freya where is that
> elevator?) reinke glued pages from freud together, now hes writing
> with rosalind
> kraus (and who can blame him? anyone know how did laura u marks
> start?).
> somewhere theres a victim of copyright law but could it be on this
> list? hmmm
>
> gina
>
>
>
>
> ____________________________________
> Date: Thu, 14 Feb 2008 22:42:15 -0500
> From: email suppressed
> Subject: Re: copyright
> To: email suppressed
>
> P.S. One way of researching copyright status from home and for free
> is this:
>
> _http://onlinebooks.library.upenn.edu/cce/_
> (http://onlinebooks.library.upenn.edu/cce/)
>
> In my experience, doing these kind of things occasionally to determine
> public domain status, surprises will crop up-- such as, no on ever
> registered the
> thing properly!
>
>
>
>
> ____________________________________
> The year's hottest artists on the red carpet at the Grammy Awards.
> _AOL
> Music takes you there._ (http://music.aol.com/grammys?NCID=aolcmp00300000002565
> )
> __________________________________________________________________
> For info
> on FrameWorks, contact Pip Chodorov at <email suppressed>.
>
>
>
>
>
>
>
>
>
>
> **************The year's hottest artists on the red carpet at the
> Grammy
> Awards. Go to AOL Music.
> (http://music.aol.com/grammys?NCID=aolcmp00300000002565)
>
>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at <email suppressed>.
>
>
> -------------------------------1203121472
> Content-Type: text/html; charset="US-ASCII"
> Content-Transfer-Encoding: quoted-printable
>
> <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
> <HTML><HEAD>
> <META http-equiv=3DContent-Type content=3D"text/html; charset=3DUS-
> ASCII">
> <META content=3D"MSHTML 6.00.6000.16608" name=3DGENERATOR></HEAD>
> <BODY id=3Drole_body style=3D"FONT-SIZE: 10pt; COLOR: #000000; FONT-
> FAMILY:=20=
> Arial"=20
> bottomMargin=3D7 leftMargin=3D7 topMargin=3D7 rightMargin=3D7><FONT
> id=3Drol=
> e_document=20
> face=3DArial color=3D#000000 size=3D2>
> <DIV>
> <DIV>Just what the hell are you talking about?</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>In a message dated 2/15/2008 8:43:09 A.M. Pacific Standard
> Time,=20
> email suppressed writes:</DIV>
> <BLOCKQUOTE=20
> style=3D"PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: blue 2px
> solid"><=
> FONT=20
> style=3D"BACKGROUND-COLOR: transparent" face=3DArial
> color=3D#000000 size=
> =3D2>ah=20
> precaution. afterimage&nbsp;just published articles on high
> performance an=
> d=20
> general idea.&nbsp; where are you now, kathy high?&nbsp; can we
> not=20
> mourn&nbsp;the loss&nbsp;of felix?&nbsp;bernie thanks but we dont
> need ano=
> ther=20
> scholar.&nbsp; from mulvey to kipnis they all eventually write.
> (jeanne c=20
> finley began with such promise and now? it's blockbusters on nazis
> and=20
> russians.)&nbsp; (freya freya where is that elevator?)
> reinke&nbsp;glued p=
> ages=20
> from freud together, now hes writing with rosalind kraus (and who
> can blam=
> e=20
> him? anyone know&nbsp;how did laura u marks start?).&nbsp;
> somewhere there=
> s a=20
> victim of copyright law but could it be on this list?&nbsp;=20
> hmmm<BR>&nbsp;<BR>gina<BR><BR><BR>
> <BLOCKQUOTE>
> <HR>
> Date: Thu, 14 Feb 2008 22:42:15 -0500<BR>From:
> email suppressed<BR>Subje=
> ct:=20
> Re: copyright<BR>To: email suppressed<BR><BR>
> <META content=3D"Microsoft SafeHTML" name=3DGenerator><FONT
> id=3DEC_role=
> _document=20
> face=3DArial color=3D#000000 size=3D2>
> <DIV>P.S. One&nbsp;way of researching copyright status from home
> and for=
> =20
> free is this:</DIV>
> <DIV>&nbsp;</DIV>
> <DIV><A title=3Dhttp://onlinebooks.library.upenn.edu/cce/=20
> href=3D"http://onlinebooks.library.upenn.edu/cce/"=20
> target=3D_blank>http://onlinebooks.library.upenn.edu/cce/></DIV>
> <DIV>&nbsp;</DIV>
> <DIV>In my experience, doing these kind of things occasionally to
> determ=
> ine=20
> public domain status, surprises will crop up-- such as, no on
> ever=20
> registered the thing properly!</DIV></FONT><BR><BR><BR>
> <DIV><FONT style=3D"FONT: 10pt ARIAL, SAN-SERIF; COLOR: black">
> <HR>
> The year's hottest artists on the red carpet at the Grammy
> Awards. <A=20
> title=3Dhttp://music.aol.com/grammys?NCID=3Daolcmp00300000002565=20
> href=3D"http://music.aol.com/grammys?
> NCID=3Daolcmp00300000002565"=20
> target=3D_blank>AOL Music takes you=20
> there.</A></FONT></
> DIV>_________________________________________________=
> _________________=20
> For info on FrameWorks, contact Pip Chodorov at
> &lt;email suppressed&gt;.=
> =20
> <P><BR></P></BLOCKQUOTE><BR></FONT></BLOCKQUOTE></DIV>
> <DIV></DIV>
> <DIV>&nbsp;</DIV></FONT><BR><BR><BR><DIV><FONT style=3D"color:
> black; font:=20=
> normal 10pt ARIAL, SAN-SERIF;"><HR style=3D"MARGIN-TOP: 10px">The
> year's hot=
> test artists on the red carpet at the Grammy Awards. <A title=3D"http://mus
> =
> ic.aol.com/grammys?NCID=3Daolcmp00300000002565" href=3D"http://music.aol.com
> =
> /grammys?NCID=3Daolcmp00300000002565" target=3D"_blank">AOL Music
> takes you=20=
> there.</A></FONT></DIV></BODY></HTML>
> <p>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at
> &lt;email suppressed&gt;.
> <p>
>
> -------------------------------1203121472--
>
> ------------------------------
>
> Date: Fri, 15 Feb 2008 19:50:49 EST
> From: Jim Carlile <email suppressed>
> Subject: Re: copyright
>
> -------------------------------1203123048
> Content-Type: text/plain; charset="US-ASCII"
> Content-Transfer-Encoding: 7bit
>
>
> Ah, the 60's. Who would have thought back then that anyone would
> care about
> such things?
>
> I remember Kunkin at CSUN, and he's a pretty cool guy. He probably
> thinks
> it's a neat idea to get this stuff back in print, so I doubt the
> financial
> status of it all matters much to him... (In general about these
> things, I'd
> worry more about possible heirs, if any.... because 'that's where
> the trouble
> starts..")
>
> The idea of Freep advertisers actually formally copyrighting their
> ads is
> pretty funny. I don't think it's much of a separate problem for the
> low budget
> stuff.
>
> I would also suspect-- don't know, just suspect-- that not all of
> the Freep
> issues were filed with the Copyright Office. This was mandatory in
> the 60's,
> as was the $6 filing fee.
>
> It may even be that there was a clause somewhere where rights
> reverted back
> to the author-- which is why talking to someone like Lenny Lipton
> might be
> fruitful-- he'd have the exact same problem with his many 'Barb
> articles and he
> probably already knows the answer....
>
> Talking to an attorney is the best thing to do. This is a research/
> copyright clearance problem, not fair use, which makes it easier. If
> it were fair
> use, all you'd have to do to avoid any copyright problems at all is
> to heavily
> annotate the original material with scholarly commentary. No one
> can touch you
> for that.- you're indemnified.
>
> Of course, you're right, someone can always try to sue, but then,
> that can
> happen anywhere, and since you can't get blood from a turnip, I
> don't think
> it's much to worry about.
>
> It would be fun to find out what the copyright status of Freep and
> Barb
> issues is these days. They all have to have registration numbers,
> and I wonder if
> they do. A couple hours with the records in a Federal Depository
> Library or
> UCLA would answer the question for good-- that would be the place to
> start, I
> think.
>
>
>
>
>
>
> In a message dated 2/15/2008 8:26:53 A.M. Pacific Standard Time,
> email suppressed writes:
>
> As I've no doubt written here before, copyright is not about what is
> or is not legal. The law is pretty vague when it comes to any kind of
> 'Fair Use' application, which leaves it up to a court to decide. Of
> course, most cases don't get to court. They're settled outside of
> court because the parties chose to avoid the time and expense of
> continued litigation. In practice, copyright is what you can get away
> with: which is true in general of any aspect of civil law. That is,
> it's all about the abilities of the potential plaintiff and defendant
> to pursue and sustain a legal contest.
>
> So, let's say when all is said and done, Gene is really within his
> rights to publish his book. However, one of the copyright holders of
> the ads in the mag is a large corporation, and decides they don't
> want
> anyone messing with their 'intellectual property.' It doesn't matter
> if they're wrong, as long as their attorney can draft a remotely
> credible brief: they've got more money than God and they can threaten
> Gene with a legal fight that would exhaust his financial resources
> and
> his time. So, unless he wanted to have defending his rights become
> his
> new full-time job and asset-gulping charity, he'd have no realistic
> option but to cease and desist. This is why all small publishers
> demand usually demand total written permission on any copyright
> questions, even ones that are obvious Fair use exceptions (e.g. frame
> grabs). They don't want _any_ risk of being sued, so they pre-cave.
>
> On the flip-side, it doesn't matter if Gene's republication of the
> paper DOES violate someone's copyright, unless that copyright holder
> has motive and resources to sue Gene or his publisher. Since
> attorney's aren't cheap, the motive usually has to involve a
> significant economic incentive for the plaintif. So most copyright
> cases are brought against defendants from whom significant monetary
> damages can be extracted. If Gene's book goes to a (poor) small
> press,
> and has limited circulation, there's little financial motivation. If
> it's published by Harper Collins, they're going to get sued for sure.
> The other incentive for copyright holders to sue is to avoid
> precedent. So if Gene's book would present something like a first in
> the circulation-without-recompense of copyrighted material, a big
> copyright holder might be jolted into action.
>
> In any event, the gatekeeper becomes the publishing house, which,
> more
> than the author, is a potential target of litigation. And again its
> not about whether its legal or not in the end, but about whether the
> publisher is able and willing to defend themselves against a
> litigious
> attack.
>
> For the most part, "alternative culture" flies below the litigation
> radar. Awhile back someone posted a link here to a website where DVDs
> of bootlegged films and video are sold openly. The guy has a huge
> catalog, but it's all old or weird stuff that isn't in active
> commercial distribution. He has a disclaimer on the site saying that
> as far as he knows, all the works have been abandoned by the rights
> holders, and if anyone with rights to a specific title complains
> he'll
> withdraw it. However, this hardly exempts him from the fact that what
> he's doing is clearly illegal. The point though is, why would the
> studio that holds the rights to one of the old films care? This
> distributor appears to be operating as a mom and pop small business,
> not publicly prominent, and doubtless without resources to yield
> damages that would cover attorney's costs. The legal guys have better
> things to do: going after targets with deeper pockets, or devising
> actions (like the RIAA mass suit of individual downloaders) that make
> a bigger 'statement" .
>
> This no doubt why Mr. Kunkin of the Free Press was able to tell Gene
> he's never had a problem: it's not that his copyright on the pub
> makes
> him absolutely clear on the entirety of the contents, especially the
> ads and the film stills. It's more likely that he's just not worth
> suing.
>
> So, the folks Gene needs to talk to are his potential publishers, to
> see what kind of 'exposure' they're willing to risk. If they displace
> the rights issue to someone else, say if Kunkin were to provide a
> written document declaring himself the sole owner of all rights and
> granting permission to the press, that might help. But if this book
> could have significant circulation, and if royalties of any
> significant amount would be due to Gene or Kunkin from it's sale
> Kunkin's attorney would probably tell him not to sign such a
> document,
> and the presses attorney would probably tell them that possesing such
> a document would be a weak defense in court against an argument that
> it was a failure of due diligence to follow up on Kunkin's claim that
> he was the sole rights holder where ads an stills from third parties
> are involved.
>
> Under the law at the time these works were published, as Jim points
> out, obtaining copyright required an official registration. Any
> commercial producer/distributor would likely have received
> registrations that would cover stills and ads, and if so this
> material
> would NOT be in the public domain now. (Again, not that it matters.
> Even if they have little or no grounds for a lawsuit, they can still
> file one, and bully you out of publication.)
>
> Of course, taking a step back from the legal arena, and the
> litigation
> habits of corporate copyright holders, this is all kind of silly. By
> reproducing stills and ads, Gene and his publisher would essentially
> be giving the copyright holders of the works referenced free
> advertising, re-circulating attention to now-obscure films, which
> increases their market value. They should welcome the book, but
> that;s
> not how they think.
>
> Jim also raises the question of whether Mr. Kunkin's copyright
> extends
> to republication of the articles written for the magazine, or whether
> the rights revert back to the author. Some of the authors might feel
> that if their work is being re-used in another medium they ought to
> get paid. This, after all, is what the WGA strike was about, what
> writer complaints against periodical publishers now are about....
> Freelancers who had work published in the Free Press may not care, or
> may not have the resources to mount a legal threat to Gene or his
> publisher. But the moral calculus is different than reprinting ads or
> publicity stills.
>
> As a final note, this republishing project strikes me as something
> that might best be dealt with under the Creative Commons umbrella...
>
>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at <email suppressed>.
>
>
>
>
>
>
>
> **************The year's hottest artists on the red carpet at the
> Grammy
> Awards. Go to AOL Music.
> (http://music.aol.com/grammys?NCID=aolcmp00300000002565)
>
>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at <email suppressed>.
>
>
> -------------------------------1203123048
> Content-Type: text/html; charset="US-ASCII"
> Content-Transfer-Encoding: quoted-printable
>
> <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
> <HTML><HEAD>
> <META http-equiv=3DContent-Type content=3D"text/html; charset=3DUS-
> ASCII">
> <META content=3D"MSHTML 6.00.6000.16608" name=3DGENERATOR></HEAD>
> <BODY id=3Drole_body style=3D"FONT-SIZE: 10pt; COLOR: #000000; FONT-
> FAMILY:=20=
> Arial"=20
> bottomMargin=3D7 leftMargin=3D7 topMargin=3D7 rightMargin=3D7><FONT
> id=3Drol=
> e_document=20
> face=3DArial color=3D#000000 size=3D2>
> <DIV>
> <DIV>Ah, the 60's. Who would have thought back then that&nbsp;anyone
> would c=
> are=20
> about such things?</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>I remember Kunkin at CSUN, and he's a&nbsp;&nbsp;pretty cool
> guy. He=20
> probably thinks it's a neat idea to get this stuff back in print, so
> I doubt=
> the=20
> financial status of it all matters much to him... (In general about
> these=20
> things, I'd worry more about possible heirs, if any.... because
> 'that's wher=
> e=20
> the trouble starts..")</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>The idea of&nbsp;Freep advertisers actually formally
> copyrighting their=
> ads=20
> is pretty funny. I don't think it's much of a separate problem for
> the low=20
> budget stuff.</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>I would also suspect-- don't know, just suspect-- that not all
> of the F=
> reep=20
> issues were filed with the Copyright Office. This was mandatory in
> the 60's,=
> as=20
> was the $6 filing fee.</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>It may even be that there was a clause somewhere where rights
> reverted=20=
> back=20
> to the author-- which is why talking to someone like Lenny Lipton
> might be=20
> fruitful-- he'd have the exact same problem with his many 'Barb
> articles and=
> he=20
> probably already knows the answer....</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>Talking to an attorney is the best thing to do. This is a
> research/=20
> copyright clearance problem, not fair use, which makes it easier. If
> it were=
> =20
> fair use, all you'd have to do to avoid any copyright problems at
> all is to=20
> heavily annotate the original material with scholarly commentary. No
> one can=
> =20
> touch you for that.- you're indemnified.</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>Of course, you're right, someone can always try to sue, but
> then, that=20=
> can=20
> happen anywhere, and since you can't get blood from a&nbsp;turnip, I
> don't t=
> hink=20
> it's much to worry about. </DIV>
> <DIV>&nbsp;</DIV>
> <DIV>It would be fun to find out what the copyright status of Freep
> and Barb=
> =20
> issues is these days. They all have to have registration numbers,
> and I wond=
> er=20
> if they do. A couple hours with the records in a Federal Depository
> Library=20=
> or=20
> UCLA would answer the question for good-- that would be the place to
> start,=20=
> I=20
> think.</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>&nbsp;</DIV>
> <DIV>In a message dated 2/15/2008 8:26:53 A.M. Pacific Standard
> Time,=20
> email suppressed writes:</DIV>
> <BLOCKQUOTE=20
> style=3D"PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: blue 2px
> solid"><=
> FONT=20
> style=3D"BACKGROUND-COLOR: transparent" face=3DArial
> color=3D#000000 size=
> =3D2>As I've=20
> no doubt written here before, copyright is not about what is&nbsp;
> <BR>or=20=
> is=20
> not legal. The law is pretty vague when it comes to any kind
> of&nbsp;=20
> <BR>'Fair Use' application, which leaves it up to a court to
> decide. Of&nb=
> sp;=20
> <BR>course, most cases don't get to court. They're settled outside
> of&nbsp=
> ;=20
> <BR>court because the parties chose to avoid the time and expense
> of&nbsp;=
> =20
> <BR>continued litigation. In practice, copyright is what you can
> get=20
> away&nbsp; <BR>with: which is true in general of any aspect of
> civil law.=20=
> That=20
> is,&nbsp; <BR>it's all about the abilities of the potential
> plaintiff and=20
> defendant&nbsp; <BR>to pursue and sustain a legal
> contest.<BR><BR>So, let'=
> s=20
> say when all is said and done, Gene is really within his&nbsp;
> <BR>rights=20=
> to=20
> publish his book. However, one of the copyright holders of&nbsp;
> <BR>the a=
> ds=20
> in the mag is a large corporation, and decides they don't
> want&nbsp;=20
> <BR>anyone messing with their 'intellectual property.' It doesn't
> matter&n=
> bsp;=20
> <BR>if they're wrong, as long as their attorney can draft a
> remotely&nbsp;=
> =20
> <BR>credible brief: they've got more money than God and they can=20
> threaten&nbsp; <BR>Gene with a legal fight that would exhaust his
> financia=
> l=20
> resources and&nbsp; <BR>his time. So, unless he wanted to have
> defending h=
> is=20
> rights become his&nbsp; <BR>new full-time job and asset-gulping
> charity, h=
> e'd=20
> have no realistic&nbsp; <BR>option but to cease and desist. This is
> why al=
> l=20
> small publishers&nbsp; <BR>demand usually demand total written
> permission=20=
> on=20
> any copyright&nbsp; <BR>questions, even ones that are obvious Fair
> use=20
> exceptions (e.g. frame&nbsp; <BR>grabs). They don't want _any_ risk
> of bei=
> ng=20
> sued, so they pre-cave.<BR><BR>On the flip-side, it doesn't matter
> if Gene=
> 's=20
> republication of the&nbsp; <BR>paper DOES violate someone's
> copyright, unl=
> ess=20
> that copyright holder&nbsp; <BR>has motive and resources to sue
> Gene or hi=
> s=20
> publisher. Since&nbsp; <BR>attorney's aren't cheap, the motive
> usually has=
> to=20
> involve a&nbsp; <BR>significant economic incentive for the
> plaintif.&nbsp;=
> So=20
> most copyright&nbsp; <BR>cases are brought against defendants from
> whom=20
> significant monetary&nbsp; <BR>damages can be extracted. If Gene's
> book go=
> es=20
> to a (poor) small press,&nbsp; <BR>and has limited circulation,
> there's li=
> ttle=20
> financial motivation. If&nbsp; <BR>it's published by Harper
> Collins, they'=
> re=20
> going to get sued for sure.&nbsp; <BR>The other incentive for
> copyright=20
> holders to sue is to avoid&nbsp; <BR>precedent. So if Gene's book
> would=20
> present something like a first in&nbsp; <BR>the circulation-without-
> recomp=
> ense=20
> of copyrighted material, a big&nbsp; <BR>copyright holder might be
> jolted=20=
> into=20
> action.<BR><BR>In any event, the gatekeeper becomes the publishing
> house,=20
> which, more&nbsp; <BR>than the author, is a potential target of
> litigation=
> .=20
> And again its&nbsp; <BR>not about whether its legal or not in the
> end, but=
> =20
> about whether the&nbsp; <BR>publisher is able and willing to defend
> themse=
> lves=20
> against a litigious&nbsp; <BR>attack.<BR><BR>For the most part,
> "alternati=
> ve=20
> culture" flies below the litigation&nbsp; <BR>radar. Awhile back
> someone=20
> posted a link here to a website where DVDs&nbsp; <BR>of bootlegged
> films a=
> nd=20
> video are sold openly. The guy has a huge&nbsp; <BR>catalog, but
> it's all=20=
> old=20
> or weird stuff that isn't in active&nbsp; <BR>commercial
> distribution. He=20=
> has=20
> a disclaimer on the site saying that&nbsp; <BR>as far as he knows,
> all the=
> =20
> works have been abandoned by the rights&nbsp; <BR>holders, and if
> anyone w=
> ith=20
> rights to a specific title complains he'll&nbsp; <BR>withdraw it.
> However,=
> =20
> this hardly exempts him from the fact that what&nbsp; <BR>he's
> doing is=20
> clearly illegal. The point though is, why would the&nbsp;
> <BR>studio that=20
> holds the rights to one of the old films care? This&nbsp;
> <BR>distributor=20
> appears to be operating as a mom and pop small business,&nbsp;
> <BR>not=20
> publicly prominent, and doubtless without resources to yield&nbsp;
> <BR>dam=
> ages=20
> that would cover attorney's costs. The legal guys have better&nbsp;
> <BR>th=
> ings=20
> to do: going after targets with deeper pockets, or devising&nbsp;
> <BR>acti=
> ons=20
> (like the RIAA mass suit of individual downloaders) that make&nbsp;
> <BR>a=20
> bigger 'statement" .<BR><BR>This no doubt why Mr. Kunkin of the
> Free Press=
> was=20
> able to tell Gene&nbsp; <BR>he's never had a problem: it's not that
> his=20
> copyright on the pub makes&nbsp; <BR>him absolutely clear on the
> entirety=20=
> of=20
> the contents, especially the&nbsp; <BR>ads and the film stills.
> It's more=20
> likely that he's just not worth&nbsp; <BR>suing.<BR><BR>So, the
> folks Gene=
> =20
> needs to talk to are his potential publishers, to&nbsp; <BR>see
> what kind=20=
> of=20
> 'exposure' they're willing to risk. If they displace&nbsp; <BR>the
> rights=20
> issue to someone else, say if Kunkin were to provide a&nbsp;
> <BR>written=20
> document declaring himself the sole owner of all rights and&nbsp;
> <BR>gran=
> ting=20
> permission to the press, that might help. But if this book&nbsp;
> <BR>could=
> =20
> have significant circulation, and if royalties of any&nbsp;
> <BR>significan=
> t=20
> amount would be due to Gene or Kunkin from it's sale&nbsp;
> <BR>Kunkin's=20
> attorney would probably tell him not to sign such a document,&nbsp;
> <BR>an=
> d=20
> the presses attorney would probably tell them that possesing
> such&nbsp; <B=
> R>a=20
> document would be a weak defense in court against an argument
> that&nbsp;=20
> <BR>it was a failure of due diligence to follow up on Kunkin's
> claim=20
> that&nbsp; <BR>he was the sole rights holder where ads an stills
> from thir=
> d=20
> parties&nbsp; <BR>are involved.<BR><BR>Under the law at the time
> these wor=
> ks=20
> were published, as Jim points&nbsp; <BR>out, obtaining copyright
> required=20=
> an=20
> official registration. Any&nbsp; <BR>commercial producer/
> distributor would=
> =20
> likely have received&nbsp; <BR>registrations that would cover
> stills and a=
> ds,=20
> and if so this material&nbsp; <BR>would NOT be in the public domain
> now.=20
> (Again, not that it matters.&nbsp; <BR>Even if they have little or
> no grou=
> nds=20
> for a lawsuit, they can still&nbsp; <BR>file one, and bully you out
> of=20
> publication.)<BR><BR>Of course, taking a step back from the legal
> arena, a=
> nd=20
> the litigation&nbsp; <BR>habits of corporate copyright holders,
> this is al=
> l=20
> kind of silly. By&nbsp; <BR>reproducing stills and ads, Gene and
> his publi=
> sher=20
> would essentially&nbsp; <BR>be giving the copyright holders of the
> works=20
> referenced free&nbsp; <BR>advertising, re-circulating attention to
> now-obs=
> cure=20
> films, which&nbsp; <BR>increases their market value. They should
> welcome t=
> he=20
> book, but that;s&nbsp; <BR>not how they think.<BR><BR>Jim also
> raises the=20
> question of whether Mr. Kunkin's copyright extends&nbsp; <BR>to
> republicat=
> ion=20
> of the articles written for the magazine, or whether&nbsp; <BR>the
> rights=20
> revert back to the author. Some of the authors might feel&nbsp;
> <BR>that i=
> f=20
> their work is being re-used in another medium they ought to&nbsp;
> <BR>get=20
> paid. This, after all, is what the WGA strike was about, what&nbsp;
> <BR>wr=
> iter=20
> complaints against periodical publishers now are about....&nbsp;=20
> <BR>Freelancers who had work published in the Free Press may not
> care,=20
> or&nbsp; <BR>may not have the resources to mount a legal threat to
> Gene or=
> =20
> his&nbsp; <BR>publisher. But the moral calculus is different than
> reprinti=
> ng=20
> ads or&nbsp; <BR>publicity stills.<BR><BR>As a final note, this
> republishi=
> ng=20
> project strikes me as something&nbsp; <BR>that might best be dealt
> with un=
> der=20
> the Creative Commons=20
>
> umbrella
> ...<BR><BR><BR>___________________________________________________=
> _______________<BR>For=20
> info on FrameWorks, contact Pip Chodorov at=20
> &lt;email suppressed&gt;.<BR></FONT></BLOCKQUOTE></DIV>
> <DIV></DIV>
> <DIV>&nbsp;</DIV></FONT><BR><BR><BR><DIV><FONT style=3D"color:
> black; font:=20=
> normal 10pt ARIAL, SAN-SERIF;"><HR style=3D"MARGIN-TOP: 10px">The
> year's hot=
> test artists on the red carpet at the Grammy Awards. <A title=3D"http://mus
> =
> ic.aol.com/grammys?NCID=3Daolcmp00300000002565" href=3D"http://music.aol.com
> =
> /grammys?NCID=3Daolcmp00300000002565" target=3D"_blank">AOL Music
> takes you=20=
> there.</A></FONT></DIV></BODY></HTML>
> <p>
> __________________________________________________________________
> For info on FrameWorks, contact Pip Chodorov at
> &lt;email suppressed&gt;.
> <p>
>
> -------------------------------1203123048--
>
> ------------------------------
>
> End of FRAMEWORKS Digest - 15 Feb 2008 - Special issue (#2008-73)
> *****************************************************************

__________________________________________________________________
For info on FrameWorks, contact Pip Chodorov at <email suppressed>.