BURNING DOWN THE ORPHANAGE

by Robert Lopresti

So you are writing a book and suddenly realize that what you need to make it perfect is a little chunk of someone else’s book. There in Chapter 37 you can have Thornwell take a book off the shelf in his study and read out loud a passage that will cause Garrington to see the error of his ways and beg Thusnelda’s forgiveness. Perfect!

Now, you aren’t a plagiarist, heaven forbid. You want to give proper credit the author you are borrowing from. You open to the verso of the title page and, let’s say, you discover that the book was published in 1922. Ah ha! This book falls into the first category, which, due to lack of originality, we shall call Category 1: Books That Are Out Of Copyright. Naturally you will put in a proper reference to the book, but the contents are fair game. You can have your wicked way with it.

But what if the book was published last year? That’s Category 2: Books Protected By Copyright. You need to contact the author (probably through the publisher) and ask permission. She may say no. She may insist on three kajillion bucks. But most likely she will be willing to negotiate.

Here come the orphans

But let’s say the book was published in 1924. The author is Frank Johnson and the author’s note helpfully says that he “lives in Manhattan, New York.” The publisher is Pig Flannel Press. Hmm.

Chances are ol’ Frank has gone to his reward. And Pig Flannel, despite the no-doubt soaring dreams of its founders, has vanished from this big blue ball of trouble, leaving scarcely a trace behind. But since the book was published later than 1922 you have to assume it is still in copyright and you can’t use it without the author’s permission. So how do you find the author’s heirs?

You probably can’t. Of course, you can take a chance and publish without getting permission, at which point Frank’s great-great-grandniece will appear, swearing that you have ruined the commercial viability of her dear relative’s work, which she was just about to sell to Steve Spielberg. The first consultation with an attorney will swallow your advance whole.

So most likely you swear a lot and toss Frank’s book in the trash, and choose some other book that falls into Category 1 or 2. Because no one loves Category 3: The Copyright Orphans.

I once co-authored a book which featured many quotations about places. A publisher was interested enough to send us a contract but things fell apart, and I think it was largely a case of cold feet over all those copyright permissions we needed to collect.

And the irony of all this is that if Frank were alive, how would he feel about his long-forgotten work being revived for a modern audience? Exactly. But the current law makes it harder, and doesn’t help anybody.

A vain (as opposed to modest) solution

The Library of Congress has recommended a solution, which Congress is allegedly considering . According to William Jackson at Government Computer News,

In January 2005 senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) asked the Copyright Office to study the problem. After a year of roundtables and comments from stakeholders, the office recommended amending the copyright law to allow use of orphan works if the user is unable to locate the owner after making a reasonable search. If the owner eventually turns up, his remedies would be limited to a reasonable compensation, without the threat of punitive damages or attorneys’ fees to discourage the user.

The big objection to this, as I understand it, comes from artists, especially photographers who don’t want to see thousands of their pictures digitized into the public domain. I feel their pain but I sure hope it doesn’t hold back the thousands of books and articles that remain in copyright orphan hell.

If the law passes I predict some entrepreneur will quickly set up a web clearinghouse for such searches. (“Heirs of FRANK JOHNSON, author of Who Ate The Hockey Puck? please contact me.”)

I’m looking forward to seeing all these little kiddos find good homes.