"J. Britton" <[log in to unmask]> wrote: I'm assisting a professor here at Duquesne University in preparing a
manuscript for submission to the Duke UP and he wants to put a few
political cartoons from the 1930s into the manuscript. We've run into a
few problems on this front re: intellectual property rights and I was
wondering if any list members could answer the biggest sticking point in
our work.
The big question seems to be: who owns the rights to political cartoons
that appeared in newspapers no longer in print (like The Brooklyn Eagle,
for instance)I seem to remember from my archives classes that in cases like this that the rights reverted back to the cartoonist and if he was deceased, then to his estate.<[log in to unmask]>
<[log in to unmask]>
Peter Hirtle will almost certainly weigh
in with a more authoritative response, but in general (and with the proviso that I am not a lawyer, although I have indeed played one on the stage):
If the cartoonist was an employee of the newspaper, unless there was a contract to the contrary, the cartoons would most probably be considered "work for hire", and the copyright would be vested in the newspaper, not the cartoonist. Even in the case of the newspaper's failure the copyright could not "revert back" to the cartoonist, since (absent a special contract between the newspaper and the cartoonist) the latter would never had any claim to copyright.
Also, it is possible the cartoons are now in the public domain. Materials published in the 1930's received copyright protection only if they were published with notice; works published without notice went into the public domain immediately upon publication. Materials published with notice received initial copyright term of 28 years, after which the copyright
could be renewed, upon application by the copyright holder, for an additional term, originally 28 years, extended by a series of acts in the 1960's and early 1970's to 47 years, and by the DMCA to 67 years (for a total, under the current law, of 95 years from date of publication). This renewal was not automatic: the copyright holder actually had to go through the motions of filing for renewal. While newspapers now jealously guard their copyrights, since they now make considerably more from "repurposing" content than they do from circulation copies, I don't know whether they were so careful in the late 1950's and early 1960's, when the Brooklyn Eagle's copyright on 1930's material would have come up for renewal. Writing in 1957, when copyright renewal was not automatic, James Guinan (Duration of Copyright, Copyright Law Revision Study No 30 [Washington, DC, 1961]) noted that only 4.1 per cent of eligible books and pamphlets were renewed, even though the process was uncomplicated.
In fact, the US Copyright Office recently addressed "orphan" copyright works. See http://www.copyright.gov/orphan/, and the full final report (including recommendations), published in January 2006, at http://www.copyright.gov/orphan/orphan-report-full.pdf. While Congress has not yet acted on these recommendations you can consider them as an indication of current thinking in the executive and legislative branches of government.
If I were in the professor's position I would investigate the copyright and renewal status of the cartoons and newspapers in which they appeared using the "reasonable efforts" outlined in the Copyright Office report and in Samuel Demas and Jennie L. Brogdon, "Determining Copyright Status for Preservation and Access:
Defining Reasonable Effort," Library Resources and Technical Seervices, vol. 41, no. 4 (October 1997), 323-334. At the same time, the professor should explore the possibility that he can publish the cartoons under the "fair use" doctrine, in particular if the number of images for any one newspaper is small (1 or 2), his analysis of them is important to his text, and the intent of the publication is clearly scholarly rather than popular (as in DaVinci Code).
--
Michael Palmer, MLIS
Claremont, California
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