OMNI Magazine as orphaned work
July 9, 2013 | 11:36 pm
BoingBoing has an interesting feature-length piece by Glenn Fleishman about OMNI Magazine and who owns the rights to it. Prompted by an article for Vice’s Motherboard discussing the rediscovery of a treasure-trove of material from the defunct late-70s-to-late-90s SF magazine, Fleishman asks and answers the question of who actually owns the publication rights to all that material. The journey he goes through tracking down the answer is actually a lot more interesting than the answer itself.
Created by the founder of Penthouse Magazine, and essentially bankrolled by Penthouse’s profits (OMNI ran for 18 years racking up a total loss of $80 million), OMNI published works by many great SF writers, some quite well-known. (For example, Terry Bisson’s oft-recirculated vignette “They’re Made Out of Meat” first saw print in OMNI in 1990.)
The answer to who owns those rights is rather prosaic, in fact—and one of the chief artifacts of the difference between the pre-e world of then and the e-publishing world of now. For the stories, feature articles, and artwork that appeared in the magazine, it’s the authors and artists who created the works. As did most magazines in those bygone days, OMNI only contracted for “first North American serial rights”—the right to be the only place that work appeared in print for a limited time. After that, the creator got the rights back, and could then anthologize the work or sell it to any other publication who didn’t mind printing left-overs. (I remember back in the day, this was given as one of the main reasons you didn’t want to post your work to the Internet before trying to sell it—nobody would want it after it had already appeared, because they couldn’t get first rights.)
Now, of course, things are different; publications request perpetual non-exclusive rights to host works, though fiction writers still generally sell time- or medium-limited rights still.
But one really interesting thing is that, if the owners of the rest of OMNI’s rights (all the work-for-hire in-house stuff, like departmental columns, which could have gone to some creditor of the magazine’s bankrupt creator without their even being aware of it) were to be found and wanted to reissue a complete digital archive of all the magazine’s works, they apparently could do that without having to renegotiate with the authors of the works.
There’s an argument that entire scanned issues of Omni could be reproduced in toto. The National Geographic Society was sued when it released a CD-ROM set starting in 1997 that featured complete issues of its magazine without negotiating new rights with freelancers. It wended its way to the Supreme Court, which refused to hear the case, which was decided in an appeals court in 2007. An "electronic replica" of a printed work apparently requires no additional rights even when contracts call for it. Interesting.
But due to the tangled-up history of the ownership of OMNI, nobody’s really quite sure who does own those rights. The magazine as a whole is, thus, an orphaned work at only 15 years gone. Even the earliest of the work-for-hire material is under copyright until 2075. A part of my childhood, and the childhoods of who knows how many others of my generation, is as inaccessible in this digital age as if it were on the moon, and won’t be free until I’m 102 years old. And this is why we need better ways of dealing with the orphaned works issue.