Using Magazine Cover Images

[mdrinne]

What is the name of your state? Massachusetts

There is a magazine called Famous Monsters of Filmland that ran from the 50s to the 80's. the magazines were copyrighted by jim warren, who at the time was the publisher. naturally, the magazines had a specific FMOF logo, or trademark.

the FM trademark was abandoned in the late 80's and picked up by another publisher in the 90's.

there are many tribute sites to the classic horror genre on the internet, and some of them have covers archives where fans of the magazine can peruse the now famous covers of the issues for free.

the new publisher is threatening some of those sites by saying that we have to have his express permission to use the covers of the old series that ended in the 80's. from my understanding, magazine copyrights are valid for about 75 years, which would make the materiel of the magazines, including the covers bearing his original logo , to the original publisher and copyright holder Jim Warren.

it would seem to me that if we needed anyone's permission, it would be JW. also, once abandoned, wouldnt the mag covers fall under the public domain?

Ray Ferry, the new publisher and trademark holder of said logo, is threatening via email several of these tribute sites with legal action for showing these cover scans. does he have the right to do so, and more importantly, is there any errant information in what I've just said regarding copyrights. please be specific and exploratory as these sites are being threatened with legal action, which some believe to be fraudulent.

 

[divgradcurl]

"from my understanding, magazine copyrights are valid for about 75 years"

Close. It's actually life of the author + 75 years. The term may be different for stuff published before 1978, but it will still be a long time before the copyrights expire!

"it would seem to me that if we needed anyone's permission, it would be JW"

True, unless JW sold the copyrights to someone else. If the "new publisher" also purchased the copyrights along with the trademarks, then that person would be the one to get permission from. You may want to check with the U.S. Copyright office to see if who (if anybody) the copyrights are registered to.

"once abandoned, wouldnt the mag covers fall under the public domain"

Abandoning the trademark has nothing to do with the copyright. A copyrighted work has to be expressly placed into the public domain; mere "abandonment" or other inaction is insufficient to place acopyrighted work into the public domain. Basically, the copyright owner would have to publically announce in some form that the work is now public domain -- otherwise you have to wait for the copyright to expire before it becomes public domain.

"Ray Ferry, the new publisher and trademark holder of said logo, is threatening via email several of these tribute sites with legal action for showing these cover scans. does he have the right to do so"

Maybe. If he owns the copyrights, or if he has some sort of exclusive licensing agreement that allows him to enforce the copyrights, then he could enforce those rights. If he owns the trademark (the logo, etc.), then he has a seperate right to protect the trademark. It will all depend on what the new publisher actually owns.

If you don't want to talk with a lawyer, you could go to the U.S.Copyright office webpage and find out who the copyrights are owned by, and contact the owner and ask for permission to use the images. You could also go to the U.S. Patent and Trademark office website and find out who owns the registered trademarks, and again ask for permission. Of course, it may turn out that the copyrights are not registered (they don't have to be, they are still enforceable without registration), and the trademark may be registered with the states instead of with the USPTO (unlikely, but you never know). If this guy does own the trademarks and\or copyrights, you will have to deal with him.

 

[mdrinne]

hi. thank you for your fast, and supreme, answer.

i checked the us copyright office as you suggested and found out a couple things i hope you can clarify for me.

the mag in question, Famous Monsters of Filmland, had 191 issues from 1959 thru about 1982. checking with the copyright office, i see that issues 144 thru 191 are listed as copyrighted by Warren Publishing (i.e. Jim Warren), but there is no information regarding #'s 1 thru 143. not for jim warren (the old publisher) NOR the new publisher.

does this mean "public domain"? also, does it mean someone can now acquire the copyrights to those magazine covers (not necessarily the contents...just the cover image).

also, is it possible someone could copyright their work within a specific STATE whereas it would not be listed with the US Copyright office? i know this publication came from california, so how would i look that up?

again, thank you for your initial response. you have no idea how many people you are helping rescue from the long arm of fraudulent behavior.

thanks again!!!!!

 

[divgradcurl]

"does this mean "public domain"? "

Not necessarily. Back in the old days (before 1978 or so), there were different rules and requirements for copyright. I don't remember them off of the top of my head, if I have time I'll look them up later.

Actually, a couple of things -- if the copyrights on the works published before 1964 were not "renewed" after 28 years, the copyright would have expired and the works moved into the public domain. Also (and I wasn't sure about this, but made a quick check) even back in the good old days there was not a requirement to register the copyright -- however, there was a "notice" requirement, that is, you had to note on the work that the work was covered by copyright with that little "c" in a circle dealy.

"laso, does it mean someone can now acquire the copyrights to those magazine covers (not necessarily the contents...just the cover image)."

If the works have moved into the public domain, it is impossible for anyone, including the creator, to re-establish or establish copyright protection for those works Actually, there is one extremely narrow exception to this rule, but it is likely not relevant here.

"also, is it possible someone could copyright their work within a specific STATE whereas it would not be listed with the US Copyright office?"

Yes, the earlier works could have been registered in a state. I don't know where to look for a state registration -- perhaps with the secretary of state's office? However, like I noted above, registration isn't (and wasn't) required, so it may be that the creator simply did not register the copyright with the copyright office.

"you have no idea how many people you are helping rescue from the long arm of fraudulent behavior."

Well, we don't know that it is fraudulent behavior yet! The fact that some of the issues have a copyright registered to Jim Warren does not mean that he hasn't sold, assigned, or licensed the copyrights -- I am not aware of any requirement to notify the Copyright office when an assignment or licensing of a copyright is made.

Is Jim Warren alive? Maybe you could contact him directly to find out the disposition. If he is not alive, what about any heirs he might have? Is his business still around -- maybe you could contact them?

 

[mdrinne]

thank you, again, for the info on copyrights.

i have learned a few things since our last correspondence.

1) The person who claims to own the trademark, Ray Ferry, does not own it any longer. it was taken from him by the California courts and is being held by the court trustee for sale to pay his depts concerning a lawsuit he lost to the original FM editor, Forrest Ackerman. the settlement has been finalized and it will be put up for auction soon.

2) Despite this, the former publisher is still harassing web owners with threats of legal action. is this legal for him to do? would it not constitute harassment?

as of my previous post, i had not heard from him regarding my web site which also has cover images. just recently, he emailed me a threatening email of legal action against me if i didnt remove my cover images as well. he accused me of having other things from his site (which is COMPLETELY UNTRUE). I challenged him in my reply that i did not, and have never used anything from his site.

he replied that i remove the covers and other things immediately.

i again replied i didnt know what he was talking about, and that i wasnt breaking the law. i requested he have his attorney contact me and explain how i'm breaking the law.

he replied he'd send me the URL's to show me! of course, there are no urls he has a case over, as he doesnt own the trademark any longer. i havent heard from him since.

3) The original publisher, Jim Warren, has been contacted and states that he never sold the copyrights or trademark to his magazines. the trademark fell abandoned via inaction, and he never sold the copyrights.

4) Regardless of these facts, Mr.Ferry still has his website up garnering subscribers to the magazine Famous Monsters of Filmland, even though he no longer has the TM. He's doing this via paypal. His site also states he DOES own the TM.

Isnt taking peoples money under false pretenses considered fraud? and or Internet fraud?

Can he still come out with the magazine until the TM is sold at auction even if he doesnt own it? (i.e. is the TM in limbo and fair game?)

thanks again

 

[divgradcurl]

Well, it looks like things have gotten more complicated, not less. From what you've given, it's hard to figure out who doing what and who has the right to do what, but here's a couple of points to consider:

1. Unless you hold the trademark or copyright rights to the magazine covers and pictures, or have permission (i.e., a license) to use them, or they are public domain, you are infringing on the rights of the trademark and copyright owners (or, if not the owners, then perhaps someone who holds an exclusive license to use the materials). If the works are valuable, someday someone is going to want to assert those rights, whoever that person may be.

2. Threatening to sue someone is not actionable. Actually suing someone without any basis at all can be actionable, but you'll need a lawyer to prove it.

This is pretty complicated, with several people claiming ownership, etc. If you want to continue to use the covers. you are going to need permission, or face legal action down the line -- it appears that these works are valuable to someone, so that someone is certainly going to assert their rights once they get the ownership stuff figured out. If you are convinced you want to use these materials, you'll need to secure permission -- since the ownership appears up in the air, you'll probably want to talk with a lawyer to figure out WHO you should be getting permission from.