public domain recapture

[thegrief]

What is the name of your state? New York.

Before I hire an attorney to look into my case, I would like some guidance and some information about what I can expect, should I proceed with hiring an attorney.

I'm a writer. I've located a copy of an 1890 British penny dreadful, published only in the UK, never in the US (to the best of my knowledge) and I think it would make an excellent movie.

I'm going on the assumption that this material is in the public domain. I would therefore like to recapture the copyright, but I also realize that at least three things are possible: 1) that there's a slender chance the material is not in the public domain, despite its age; 2) that another party might've beat me to the punch and already recaptured the copyright; and 3) that the law doesn't permit an American to recapture the copyright on British material written by a British citizen.

Can anyone tell me how to state my case to an attorney and what to ask for, and what to expect in terms of costs (ballpark) and time? In other words, would this require lengthy and costly research, or are these questions that can be answered with a few Internet keystrokes?

The copy I have was made by a researcher I hired, who located the item in the British Library. She states that, to the best of her knowledge, the British Library has a copyright on the reproduction of the item (as it does on all reproductions of all its items), but does not have a copyright on the work itself. In other words, the BL has a copyright on the way the words look, but not what they say.

Best regards,

DMc

 

[hexeliebe]

the first thing you need to do

is to approach an International copyright attorney. It doesn't matter if no United States copyright exists, only that one exists somewhere in the world.

In international copyright law it's first come, first served unless the original owner of the copyright can show cause why they should be able to dispose the holder. For example, if the copyright to "A Tale of Two Cities" was somehow left to expire, you still couldn't register it because International law allows for a 'grace' period to reregister.

My personal advice is to retain a copy of the work for legitimate research, and to write your screen treatment based on the work. If it's optioned, by the time it reaches the screen it won't resemble the original work very much anyway.

 

[divgradcurl]

If you are _sure_ it was published in 1890, was not published in the U.S. and was not written by a U.S. author, then it is not subject to U.S. copyright law, because the U.S. did not recognize copyright protection for works by a foreign author unless the work was published in the U.S. first until 1891. Even if it had been published in the U.S. in 1890, the copyright would have expired long ago.

However, you cannot "recapture" a copyright -- once it has expired, the work moves into the public domain, period. What you _can_ do is prepare a derivative work -- say a screenplay based on the public domain work -- and copyright the screenplay based on the 1890 work. Of course, copyright only protects the work, and not the idea behind the work, so even if you did write a screenplay based on the 1890 work, your copyright would not prevent someone else from writing a screenplay based on the same 1890 work.

 

[thegrief]

recapture redux

Thank you for your quick and thoughtful responses.

I was off the mark about recapture of copyright. The only case I've read about concerns the movie "It's A Wonderful Life," which to this day remains in the public domain because somebody at Republic Pictures was asleep at the switch and forgot to renew the copyright under the old law. Thus the film enjoyed for a time a revival -- nay, a resuscitation, for it was never popular when originally released -- in public television holiday broadcasts.

To correct the problem, Republic retained counsel who took a unique approach: they contacted the owners of some still-copyrighted music that was used in the film's score, and obtained exclusive synchronization rights for them, which rights they then exercised to control licensing of the movie. The NBC network can afford the hefty license fee, so they broadcast "It's A Wonderful Life" once or twice during the holiday season. But your local PBS station can run the movie, too -- so long as they edit out or replace the protected music, which probably isn't worth the bother. I suppose someone with some sound- and film-editing experience could make himself some money by distributing properly-edited or re-recorded versions of the film to local tv stations. Now there's an angle.

Forgive my not naming the 1890 serial to which I refer, but news travels fast and there are already others out there who are rediscovering this character and this story. Finding this property was rather like stumbling across the Victorian version of 'The Matrix.' Getting the rights to the story and to the character would have been akin to owning the rights to Robin Hood.

From your comments, it seems as though I would encounter little legal difficulty if I simply went ahead and wrote and marketed the script.

Hexeliebe, you raised the issue of a grace period. My limited understanding of British copyright law is this, that at some point the law was written to state that copyright protection extends 70 years after the death of the author (that's for British citizens; foreigners publishing works in Britain got rights for only 50 years after their death). I do not know when this law went into effect, but it isn't impossible that the writer of the 1890 serial died after 1933, meaning he or someone could still hold the rights (I know for certain the author was British).

If the 1890 serial is in fact clearly in the public domain, then -- unlike the case of "It's A Wonderful Life" -- there are no elements in it (at least no obvious ones) that are still copyrighted, which would open the door for licensing control. My unique interpretation of the work would of course be protected.

Is there anything here that I'm overlooking?

Best regards,

DMc

 

[hexeliebe]

Not that I can tell. It would still be worth your while to do a copyright search though. Yes It's expensive, but if you're going to be doing a movie script do you really want to share your profits with someone you never heard of 10 years from now?

 

[thegrief]

recapture

Point well-taken. Expense aside, is a copyright search of a British property something I can do on my own, or do I need counsel?

Thank you for your quick response.

Best regards,

DMc

 

[divgradcurl]

The term of "70 years from the death of the creator" (actually, I believe it was 65 years, now 95 years in the U.S.) is a much later term; the original term of copyright (and any extension terms) would have expired long before the longer terms came into law. In addition, as I mentioned before, if it was published outside the U.S. before 1891, it wouldn't be covered by U.S. copyright law at all anyway.

You could do a copyright search to set your mind at ease. You can do it yourself, but it will require some legwork. Bascially, you'll need to start with the original publisher -- find out what rights the original publisher held (and what, if any, rights the author retained), then just follow the chain of title of the copyrights until they expire, or until you get to the present day. Obviously, with a work so old, you may have your work cut out for you -- or you may not, if the publisher is still in business in some form. You could retain counsel to do the search, but it could get expensive, especialy if you have to retain counsel in the UK as well for that part of the search.

Good luck.

 

[thegrief]

copyright recapture

Divgradcurl, thank you for your quick response.

As you've pointed out, "if it was published outside the U.S. before 1891, it wouldn't be covered by U.S. copyright law at all anyway." It still would have been protected under British copyright, I assume, but that still doesn't enter into the issue, am I correct?

Best regards,

DMc

 

[divgradcurl]

The point about the US not recognizing foreign copyrights is this: prior to 1891, anything written by a foreigh author and NOT published in the US first got no copyright protection -- that means, as far as the U.S. is concerned, its public domain. Even if there is a valid UK copyright currently, because the work is in the public domain in the US, you could create a derivative work _in the US_ and not be violating anyone's copyright. If you took it outside the country, then all bets would be off, however.

However, it is far more likely that any copyright, UK or US, has simply expired -- the current ridiculously long copyright terms we have today only began to come around really in the mid-60's, so anything produced before the 1910's or so would have long since expired -- I don't remember off of the top of my head when the U.S. went from a 14 year term (renewable once) to a 28 year term (renewable once), but anything before 1917 (1917 + 28 + 28 = 1963, when the newer laws began) would certainly be in the public domain. Plus there were all sorts of crazy registration and notice requirements as well.

Of course, this is U.S. law, and not UK law, but I think the same holds. f I remeber correctly, UK copyright law became was common law (Statute of Anne?) prior to 1911 or so, and gave the author a single period of protection for either 14 or 21 years (can't remember which, you could probably Google it), so even the UK copyright would have long since expired as well. You'll want to check that, though -- this is from my rapidly-fading memory...

Because all of the coutries these days that matter are part of WIPO and TRiPs and agree to abide by each other's IP laws (more or less), it's probably a good idea to check up on the UK laws and ensure that any UK copyrights could not still be in force, just to be on the safe side.

 

[thegrief]

THANK YOU

Divgradcurl, thank you so much for your close attention to my questions. It's getting so the only decent people I meet nowadays are on the Internet.

You've put my mind mostly at ease, and you have doubtless saved me hundreds of dollars (or more) in legal fees. I wish I could return the favor. For what it's worth, I've a quarter-century of experience as just about every kind of investigator you can imagine, so if you ever have questions in that area, do not hesitate to contact me. The ins and outs of surveillance and witness interviews and so on are a lot more complicated than even most attorneys realize, and insurance company employees are even more shockingly-in-the-dark about what an investigator can and cannot do. I'm not an expert, but I've a lot of street knowledge, so feel free to ask.

I'm quite excited about my writing project. Stumbling across this character was like discovering a public-domain Batman. I hope I make it. Your help has saved me valuable time and increased my momentum. Many thanks, and-

Best regards,

DMc

 

[divgradcurl]

Glad I could help. Copyright is an area of great interest to me, so I like talking about it. I'm not a lawyer, though (yet), so it wouldn't hurt to get advice of counsel before making any big decisions...

 

[thegrief]

recapture

Will do. Many thanks, and once again-

Best regards,

DMc