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From the Authors Guild blog:

Yesterday, we began an effort to dig in more deeply to the HathiTrust list of “orphan works” candidates.

These two jump out as a bit too easy.

Wikipedia does the heavy lifting in re-uniting an “orphan” with the first author. According to the site, “Albert Bandura is widely described as the greatest living psychologist.”  He’s the David Starr Jordan Professor Emeritus of Social Science in Psychology at Stanford University. The Stanford Daily wrote about him in March.  The HathiTrust orphan work candidate is his 1959 book, co-authored with Richard H. Walters, “Adolescent Aggression: A Study of the Influence of Child-Training Practices and Family Interrelationships.”

James Gould Cozzens, who won the Pulitzer Prize for his 1949 novel “Guard of Honor,” left his literary estate to Harvard, according to Copyright Office records and the well-known WATCH list (Writers Artists and Their Copyright Holders) maintained by the Harry Ransom Center at the University of Texas and the University of Reading.

The “orphan work candidate” is the author’s first novel, “Confusion.”

The rights owners here seem a bit too obvious in each of these cases, making us wonder whether there’s something unusual about these books.  We’ll see what we find.

25 COMMENTS

  1. I don’t think that the definition of an ‘orphaned (or ‘orphan’) work’ is simply ‘works whose authors could not be found’. The author is not always the rightsholder, and disambiguation of author names can be tricky, to name just two potential complications.

    The original rightsholders of a huge number of orphaned works are deceased, and the number of deceased original rightsholders will increase over time while also becoming a greater percentage of existing orphaned works. If we take this into account, intuition tells us that without libraries and HathiTrust, simply having a book published will not guarantee its survival. The moment that keeping a published work in print ceases to be profitable, is the moment at which such entities become a work’s last chance of remaining available to posterity. To dismantle the whole system because a couple of works were essentially mis-filed into the wrong side of the equation (‘orphaned’, rather than ‘protected’) seems like an overreaction.

    Of course, I’m no expert.

  2. Thorn – I agree. These rights holders are also not earning a dime now or for quite a long time. So how are they being hurt even if there has been a mistake ? And the mistake can easily be corrected if they come forward.

  3. @Howard:

    Publishing a title as ‘orphaned’ does seem like it would be a good way to find AWOL rightsholders, that’s for sure.

    I just read Paul Biba’s more recent post on this subject. I did know that HathiTrust’s ‘pilot’ sample was a set of 166 works, but I’d imagined that existing orphaned works would number in the thousands, rather than the hundreds. The *hundreds*? *Seriously*?

    Even so. As you say, none of the rightsholders in question are presently earning a dime from those works. Let’s think about how HathiTrust is even finding the content in the first place. Could it be… out-of-print copies housed in library collections? It’s not like the rightsholders are marketing their stuff in any way at all. So hmm… Who is doing whom the favor, here. Seems to me like someone left their trash sitting on the curb, and the minute someone came along who wanted it, decided to grab it back.

  4. It appears to me that several of the “orphaned works” listed in the Author’s Guild blog may actually be post-1923 works which have lapsed copyrights. I checked several of them at the Stanford copyright renewal database and didn’t find them.

  5. The question isn’t whether a book is “earning a dime” but it’s whether some large group can take a copyrighted book and do with it as they dang well please.

    This case is one of the “lines in the sand” that authors must draw to protect themselves.

    It wasn’t that long ago that Google started scanning books still in print with living authors into their database to put online, and it was only stopped when authors and publishers started screaming bloody murder and contacting their lawyers about such wide-scale theft.

    Now the library associations are stepping in and declaring the free distribution of whole works outside of the current agreed upon distribution channels is “fair use.”

    Fair use, my Aunt Fanny.

  6. I have decided that I don’t know who owns the intellectual property rights pertaining to Mickey Mouse. I am using my post on this website to give proper notice that this lovable cartoon character will soon be considered an “orphan work.” I have been unable in all my diligent searching, to find anyone who knows who owns the rights to this character. As of this day next month, I will consider it fair use to distribute both old and new works pertaining to Mickey Mouse.

    Also, Batman, Superman and Spider-Man.

  7. thorn: Better that a thousand–no, a million–works vanish into nothing than that a single copyright holder have its rights infringed. I strongly support people’s efforts on behalf of Disney, Sony, BMG, and Harper-Collins to ensure that copyright is so strongly protected as to make publication of these so-called “orphan” works impossible.

  8. It is a pity that some works will be lost, but, frankly, a vast majority of older works, particularly the nonfiction whose content is outdated to the point of uselessness, is no great loss to anyone if it disappears off the planet.

    The same can be said of fiction to a lesser degree. If nothing else, fiction is a better indicator of the time it’s written than nonfiction.

    Right now, the notion of copyright and the right holder’s right to make a choice about its deposition is far more important than a few lost works of value because many of us feel that we are fighting for the future of writing as more than a hobby.

    If a monolith like Google or some library association can do what it dang well pleases with a copyrighted work, that will hurt writers and their readers immeasurably because it will suck even more profit out of the publishing engine which is running on fumes already.

  9. @Marilynn Byerly: It’s not clear to me that pushing copyright out to 95 years, or until the author’s grandchildren are dead or retired (life+70) is “fighting for the future of writing as more than a hobby”. The number of books that remain commercially successful for such a long time is probably something like .1% of all the books published. I agree that some of the HathiTrust “orphaned works” were not good examples of orphaned works, but in general, I don’t see how libraries making ebooks available to students/faculty for books that have not been in print for 50 years or more will suck even more profit out of the publishing engine.

  10. Marilyn says:
    “Right now, the notion of copyright and the right holder’s right to make a choice about its deposition is far more important than a few lost works of value because many of us feel that we are fighting for the future of writing as more than a hobby.”

    the most problematic part of the word ‘publication’, is that yucky ‘public’-thingy. best to just leave the work at home, in journals, under lock & key, with strict instructions that it be burnt after the author’s death. because copyright can’t be renewed indefinitely. it may take a long time, but eventually everything ends up in the public domain. authors who are freaked out by this seriously ought to leave publishing to people who want their ideas to be discovered and read.

    coolest of all, is that the loss of the work due to the vagaries of rightsholder fates (‘rightsholder’ being, in most cases, *not* equal to ‘author’) means that anyone in the world will be able to re-invent the wheel — and be credited with invention of the wheel! i am *so* there.

    i am happy to pay for what i read, as long as i know whom to pay. the rightful payee for a work being unknown, or out of business, ambiguous or simply not findable is not the same as the work not existing in the world as a mass-produced object, and those works shouldn’t be treated as though they didn’t exist. if a mistake occurs and a work is released that shouldn’t be, big whoop. the rightsholder can make that fact known, and have access disabled. it’s not at all the same as trying to get one’s virginity back.

    publishers’ profit problem is in fact kind of the opposite of copyright violation. their problem is more that reading as an activity has been on the decline for many years. it could be that the ease of always having a novel and a dictionary on a portable device is making a difference, but I’ve heard of no huge changes in the trend. written work needn’t be given away free, but how about devoting resources to a series of marketing campaigns to get people reading again, rather than blaming others for their problems and litigating against organizations that exist to support reading. in the end, it’s still a battle for the eyes., and while the authors’ guild spins its wheels and carps about hathitrust and the university of michigan library, netflix and hulu and nintendo will eat their lunch.

  11. As I said, fighting the so-called orphan work option put out by all these groups is a line in the sand for authors and publishers. These groups say “trust us, we don’t intend to screw authors and publishers,” and they offer safeguards to the process to protect living authors and their works.

    This list of orphaned works, a number of whom aren’t orphaned, proves they are lying or incompetent or both, and authors and publishers are right to fight them in court to stop them.

    Using an over-used but perfect cliche, they are the foxes and they want to guard publishing’s hen house.

    The main danger to publishing’s profits is Google who has done nothing but go after copyrighted material for their own profit for years. If they win this battle, they will have yet another backdoor to our hen house to steal the eggs.

    Since this discussion isn’t about copyright length, I won’t cover that point.

  12. Thorn, if the problem was that people don’t read and less will read in the future, Google and all the people with money going after copyright and content wouldn’t be spending all this money to get ahold of that content. Wily Amazon would be investing more money in its non-book storefronts and less on the Kindle and its library.

    Publishing, copyright, and authors are being attacked on all sides by different factions wanting a major piece of the profit so this current situation is only one of many facing us. We must fight them all if we hope to survive.

    Most of us writers accept that our copyrights will disappear one day, but we will fight to hold onto that copyright as long as we legally can. It is ours and it is our right to do so.

  13. Thorn, great post. The problem is that organisations like the Author’s Guild are driven only by dogma and ideology, not pragmatism or the wider interests of society.
    Titles have been abandoned by their authors and abandoned by their publishers. Yet organisations like this draw their reactionary line in the sand as part of their wider anti consumer and anti capitalism ideology.
    Despite all of their arguments they have no where demonstrated how any author would lose a single dollar. But that is way too practical a concept.
    These titles should be made available to society as soon as possible. They should be opened up to the readers of the world.
    Should holders of rights come forward then they should be compensated at an appropriate (and very low) rate of royalty for any copies downloaded from any of these sites. It is a simple process and a positive one for society.

  14. Bruce wrote:
    “It’s not clear to me that pushing copyright out to 95 years, or until the author’s grandchildren are dead or retired (life+70) is “fighting for the future of writing as more than a hobby”.”

    And of course you are right Bruce. It does absolutely nothing for the future of writing. Look at the enormous masses of titles being written and published … writing and disseminating of writing is built in to our genes. Nothing will suppress it. Nothing can ever suppress it.

    The extending of the copyright period to the insane lengths of today is nothing more than uncontrolled and unbridled greed. It is this kind of grasping money grubbing behaviour that drives people to completely lose respect for writers and their work and to look to pirating as a backlash.

    Google is doing an excellent thing and should be encouraged at every turn.

    Back when all writing had to be published by a publisher on paper, these people had the reading public by the gonads. Times have changed. The public now have options. They have lots of options and writers and publishers will find that they won’t be able to crack the whip of royalty law any more. They will have to win the respect of readers for their position or they will find that their greed will be met by those options being chosen.

  15. Howard, do you live in the real world? It’s greedy to want to be paid for something you created and own, yet it’s okay to steal it from those who do own it? Really?

    You need to run for Congress so you can call retirees who have paid into the Social Security system parasites because they expect to be paid as they were promised. You have the right mind set.

  16. Marilynn, I’m sorry to say this but you are totally and absolutely delusional about the nature of copyright. Copyright grants a limited monopoly over the right to copy and sell a creative work. It does not grant ownership or create possessions.

    Nobody can possibly “own” words or strings of notes or visual images. If somebody humms a tune you wrote or recites out loud from a book you wrote they did not steal your precious possessions. They may have broken your arbitrary government granted copyright, but that’s it. Copyright is not a property right – it is a legal construct that supposedly balances many needs.

    Originally copyright was for 14 years with an optional extension of another 14. This was considered a fair balance between the desire to encourage creation and the essential need for all works to be returned to the public domain in order to be built upon by others.

    Sadly we have moved very far from that balance to a point where copyright is now almost endless, nothing ever returns to the public domain, creation is stifled, scholarship is hamstrung and our culture is held hostage to greedy rights holders who expect their monopoly to live on and support their heirs for a hundred years or more.

  17. Binko wrote:
    “Sadly we have moved very far from that balance to a point where copyright is now almost endless, nothing ever returns to the public domain, creation is stifled, scholarship is hamstrung and our culture is held hostage to greedy rights holders who expect their monopoly to live on and support their heirs for a hundred years or more.”

    That sums up the sad situation for me.

  18. I think that copyright protection should be as strong as the protection on physical property.

    Meaning that copyrights have inherent value as property that can be taxed, just like real estate or automobiles. And there are any number of ways that the property can be involuntarily taken–for example, if someone starts using it without your permission and you do nothing to stop them (adverse possession.)

    “It is a pity that some works will be lost, but, frankly, a vast majority of older works, particularly the nonfiction whose content is outdated to the point of uselessness, is no great loss to anyone if it disappears off the planet. ”

    I hope that, some day, you have the pleasure of seeing someone describe your work as “no great loss to anyone if it disappears off the planet”.

  19. Density Duck, I write popular fiction. That means lots of people say the disappearance of my works would be no great loss to anyone, and they have been happy to say that to popular writers from day one of publication.

    In public forums like this, the copyleft types and pirates constantly harp on how our works have so little value that it’s okay to steal them, and the $.99 crowd think they should pay what they would for a cup of McDonalds’ coffee or french fries for something they take days to consume and took me years to write.

    In other words, your words carry no sting to me or to most writers.

    The last few years have opened up an incredible opportunity for writers and families of dead writers with an old backlist to make a little more money from works that didn’t make very much and to bring back books that are no longer in print and whose paper copies have crumbed to dust.

    By the rules of decency, if not copyright, these people should have their small bit of fame back and some recompense. Google and some of these libraries don’t have that decency so those of us who are working now are fighting for them.

  20. Binko, that old definition of copyright really doesn’t fit what is happening these days.

    “Fair use” is more than adequate in allowing scholarship and whatever else is needed with fiction and nonfiction, and technology and science are moving at such a great speed of innovation that even the span of copyright of a few years would still make its content obsolete.

    As to the value to society of public domain works, let’s look at what was done with out of copyright books. Publishers like Penguin printed these books as the whim took them and made all the money instead of the former copyright owners. Writers inserted zombies into classic works and made all the money as well as degrading masterpieces. Techie types have formatted public domain books for specific systems like the Kindle and are making the money.

    I doubt many of us would declare any of these things a great value to society at large.

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