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Who owns copyright to old magazines?

 
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SteveJohnson49
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PostPosted: Sun Feb 10, 2013 2:02 am    Post subject: Who owns copyright to old magazines? Reply with quote

In another post here, someone answered that in general, the rights to work produced in old magazines lasted the normal term of 70 years after the death of the "author." That was seen as making it difficult to determine if magazines are out of copyright, because several people may have been involved in producing the magazine (writers, photographers, etc.). But my question is whether the people who sell content to a magazine actually have any rights, i.e., doesn't the copyright on the article go to the magazine owners, who paid the writers and photographers for their work? In other words, if I digitally reproduce a page from a magazine, do both the magazine's owners AND the writer and photographer all have copyright? Or does the magazine buy the right to copyright the work when it purchases the article or photo?

The other reason I'm asking is that, if the magazine retains the copyright and the corporation producing the magazine has gone out of business, is there any legal entity that con enforce the copyright?

Many thanks...
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AndyJ
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PostPosted: Sun Feb 10, 2013 9:59 am    Post subject: Reply with quote

Hi Steve,
Since you are in the US, I will try and answer based on US law, which is somewhat different to UK law on several aspects within this topic.
First off, the duration of copyright for works produced in the US prior to 1978 depended on the work being registered - if it wasn't registered, then no copyright existed. Assuming registration was done, the first period of protection lasted for 28 years, and could be renewed up to a total of 56 years, but again if the author or owner didn't remember to re-register (and many didn't) the copyright lapsed after the first 28 year term. You can read more about this complicated situation here: Wikipedia.
So turning to your main point, US law does not protect the entirety of a magazine in the same way as UK law which only gives 25 years duration to the typographical arrangement of a published edition. In the US a magazine (amongst many other works) is called a compilation and is given the same level of protection as any other copyright work, such as a novel. The actual law (17 USC 103) can be found here.
Again, the situation over who owns the copyright in the individual articles etc differs under US law. 17 U.S.C. 101 defines a category known as work for hire which it is worth quoting in full:
Quote:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

So you can see that in the case of an article which was either made by an employee of the publisher or was specially commissioned, the first owner of the copyright would be the publisher. However for articles submitted by freelance authors on a speculative basis might not be works for hire unless the terms on which they were taken by the magazine specified this. Most large publishers would automatically require copyright to be assigned even if it wasn't covered by a work for hire condition, except where the work concerned was only available under syndication rights, such as a news agency story, a cartoon strip or a photograph supplied by an agency.
The presence of work for hire and 'independent' works side by side within a compilation makes for a really messy situation when it comes to trying to work out the copyright duration in works made after 1978: the works for hire (17 USC 302 (c)) remain in copyright for 95 years from the date of publication or 120 years from the date they were made, depending on which expires first, while the 'independent' works are subject to the lifetime +70 years term (17 USC 302 (a)).
This is necessarily a very brief explanation of what is a very complicated subject, mainly due to the major revision in US law which occurred with the 1976 Copyright Act, which effectively changed the system from one based on registration to one which was based the Berne Convention, which forbids 'formalities' such as registration.

As for your final question, the owner of the copyright in a magazine as a whole will generally be the publisher and if that company no longer exists, finding the successor in title may be a major problem. Chances are that there will be an owner (maybe another publisher which bought up the assets of the company or a living heir of the company owner) and your first port of call should be the Register of Copyrights within the Library of Congress, to see if they have any record of a current owner.
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typonaut
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PostPosted: Mon Feb 11, 2013 11:59 am    Post subject: Reply with quote

AndyJ wrote:

Quote:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.


So you can see that in the case of an article which was either made by an employee of the publisher or was specially commissioned, the first owner of the copyright would be the publisher...


Actually, it does not say that at all. It says that in order for such works to be considered "works for hire" then " the parties expressly agree in a written instrument signed by them". Which I think you'll agree means that the default position is that the copyright of the work remains the author's, unless there is a written agreement to assign the rights to someone else.
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AndyJ
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PostPosted: Mon Feb 11, 2013 6:21 pm    Post subject: Reply with quote

Hi Typo,
Point taken. As you are aware describing US copyright law from a UK perspective poses a significant challenge and my attempt at brevity led to the error you highlight. In fact I should have bracketed the work for hire provisions more closely with my sentence "Most large publishers would automatically require copyright to be assigned even if it wasn't covered by a work for hire condition" to make the point that generally publishers do not mess about and in fact often impose work for hire agreements on their contributors as part of their normal terms of business. To that extent, my earlier remark was intended to reflect reality for most work for hire contributors.
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typonaut
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PostPosted: Mon Feb 11, 2013 11:52 pm    Post subject: Reply with quote

AndyJ wrote:
Hi Typo,
Point taken. As you are aware describing US copyright law from a UK perspective poses a significant challenge and my attempt at brevity led to the error you highlight.


I try to steer clear of discussion of foreign IP issues, except where they are directly related to EU legislation.

For what it's worth I always thought that there was a common law doctrine of "work for hire" in the USA, and it was only when I read the statute that you cite that I realised that there is not - the issue is in fact inline with the provision in the UK.
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