Publishing Doomsday Clock & the Death of the Backlist

By Lloyd J. Jassin

Copyright Termination: A Guide for Authors

The Copyright Act gives authors an opportunity to recapture rights they licensed 35- to 40-years ago. Since an author's termination right cannot be waived, it allows authors to renegotiate the terms of publishing agreements they signed before the true value of their work was known. Some call it "contract bumping."  The termination right trumps written agreements -- even agreements which state they are in perpetuity.  Also known as “termination” or “recapture” rights, the deadline for sending termination notices for 1978 grants will begin to expire in 2011.

To protect authors and other creators of older works from having to live with a bad deal they entered into when they had little negotiating skill or leverage, the Copyright Act allows them (or their families) to recapture copyrights by sending notices of termination to their publisher partners. 

Post 1977 Contracts

Section 203 of the “new” Copyright Act applies to grants of copyrights signed on or after January 1, 1978 by the author -- not grants signed by an author's heirs.  One of the idiosyncrasies of the termination right, is that it does not apply to foreign grants.  However, under UK law, heirs can recapture rights twenty-five years after the death of an author.  Known as British Reversionary Rights, these rights are analogous to our recapture and termination rights.  

"Works made for hire" are immune from termination. Of special concern to heirs is an unsavory practice known as revoke and re-grant.  If you are an heir, be very careful of what you are asked to sign by agents, coauthors, publishers, producers and other copyright licensees and partners.   If it is a revoke and immediate regrant of the rights agreement, you may be signing away valuable rights for less than market rate.    

The Section 203 right of termination focuses on when the copyright grant or license was made.  “Termination may be exercised at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier.”

The rules that apply to termination are dense and unforgiving. If  you serve a Notice of Termination either too late, or too early, or incorrectly, you have squandered your termination rights.  It's essential the that the Notice of Termination be recorded with the Copyright Office, which must be prior to the date of termination.  You can serve a Notice of Termination as early as ten years before the effective date of recapture, or as late as two years before the effective date of recapture.  The author (or his heirs) selects the date termination will take effect, and must send a Notice of Termination within the termination window outlined in the Copyright Act.

Example: If a songwriter agreement was signed in 1978, the Notice of Termination could be served as late as two two years before the recapture date.   In this instance, 40-years from date of execution would be 2018, which means the notice of termination can be served as late as 2016.

Statutory v Contractual Termination Rights

The right of termination should not be confused with the contractual right many authors have to recapture  book rights when their book goes out-of-print.  When a book goes out-of-print, most book contracts allow the author to request a reversion of rights.  Regrettably, what constitutes "out of print" is not always clear, and responding to written requests for a reversion of rights is not a top priority with publishers.  Unlike out-of-print clauses, which requires the cooperation of the publisher, the statutory termination right automatically vests those rights in the author.      

It Involves Math!#$@!

Calculating the notice and recapture dates are the author's responsibility.  The Copyright Office does not provide Notice of Termination forms.  You must calculate the notice and recapture dates yourself.  It is strongly advised that you consult with a knowledgeable copyright attorney (not a trusts & estates attorney) if you have questions pertaining to termination.  

Death & Termination

The important message is that when an author dies, their spouse, children or grandchildren, even parents or siblings, may be entitled to exercise the recapture rights discussed in this article.   

Recapturing Ownership Rights to Pre-1978 Works

The Copyright Act gives families of deceased authors and composers an opportunity to recapture rights to pre-1978 works as well.  

For example, when the author of an older work dies during the initial 28-year term of copyright, that author’s family has the right to reclaim the renewal copyright, which is a further term of 67 years of copyright protection.  This subset of the Copyright Act also provides for termination at any time during the five year period beginning at the end of 56 and 75 years from the date the copyright was originally secured.  These added opportunities to get back ownership of copyrights exists even if the author assigned his or her renewal term (or devised it by will) to someone other than his family.  What is extraordinary about these rights, is that copyright law also trumps a writer or composer's will.

Example.  Miles Davis, the jazz icon, died in 1991, before the end of the 28th year of copyright of his revolutionary 1970-album Bitches Brew.  Because he died before the 28th year of copyright, his renewal term rights in the song Bitches Brew vested automatically in his heirs -- cutting off a sister and brother mentioned in his will, and severing his ties to his music publisher.  Today, his sons (two of whom were not included in their father's will) and his daughter, jointly control the remaining 67-years of copyright in Bitches Brew and other songs.   Here, Section 203 trumped both Miles Davis' will and his songwriter agreements.   

Similarly, in 1938 Jerry Siegel and Joe Schuster, two young men from Cleveland, Ohio, signed over all of their rights to the Superman character to DC Comics for $130.00 and vague promises of future work. To address this, and similar economic injustices, Congress gave authors (and their heirs) a second chance to strike better financial deals. As a result, starting in 1999, using Section 302 of the Copyright Act, Siegel’s heirs recaptured his rights to the Superman character. Fortunately, you don’t have to be related to a man of steel to reclaim copyrights. The heirs of Jack Kirby, Hank Williams, William Saroyan, Truman Capote, Joe Young, Lorenz Hart, and many others have availed themselves of these valuable rights.

Copyright Estate Planning

The clock is ticking.  Don't miss this opportunity to get your book or song rights back.  Termination notices, which must adhere to complex formalities, must be sent within a narrow window. On January 1, 2013, provided timely Termination Notices are sent (and recorded with the Copyright Office) grants made on January 1, 1978 will terminate.  As a copyright owner, or copyright owner's heir, you must be vigilant. Failure to exercise these rights, or exercise them in a timely manner, can be fatal.  And, if you delay filing your claim, you can be time-barred by the statute of limitations.

If you are thinking about exercising your renewal or termination rights, or need help renegotiating your soon-to-terminate publishing agreement, call us.  We can help you: (i) identify which copyrights are eligible for termination; (ii) determine who is the proper party to exercise those termination rights; (iii) prepare, file and record your Notices of Termination; (iv) assist you recover rights to copyrighted works you thought were irrevocably assigned or bequeathed to others; (v) work cooperatively with your trusts and estates attorney on reopening an estate, or seek monetary damages that flow from a determination of ownership or co-ownership of a legacy copyright.      

The Best of 1978

Select Books

1.  The Stand - Stephen King

2.  Eye of the Needle - Ken Follett

3.  The House of God - Samuel Shem

4.  The Far Pavilions - M.M. Kaye

5.  Holcroft Covenant - Robert Ludlum

6.  Chesapeake - James Michener

7.  If Life Is a Bowl of Cherries, What Am I Doing in the Pits - Erma Bombeck

Select Songs (artist , not composer shown)

1. Is This Love - Bob Marley & the Wailers
2. Le Freak - Chic
3  My Life - Billy Joel

4. Life's Been Good -- Joe Walsh

5. Night Fever - The Bee Gees

6. Miss You - The Rolling Stones

7. YMCA - Village People

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NOTICE: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.  This article represents copyrighted material and may only be reproduced in whole for personal or classroom use. It may not be edited, altered, or otherwise modified, except with the express permission of the author. 

LLOYD J. JASSIN is a New York-based publishing and entertainment attorney with a special interest in copyright and trademark matters.  He is co-author of The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).  A former publishing executive, Mr. Jassin has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators. He may reached at Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1560 Broadway, Suite 400, New York, NY 10036. Visit www.copylaw.org.

(c) 2010. Lloyd J. Jassin. All Rights Reserved.

Maintaining & Protecting Your Trademark

After you've registered your trademark, you must maintain it. First, you must continue to use your trademark. Between the 5th and 6th sixth year after the date of registration must file a declaration attesting to continued use.  And between the 9th and 10th years after the registration date, and every ten years thereafter, you must file a renewal application.  Failure to do so will result in cancellation. 

Guide to Proper Trademark Usage

In addition to maintaining your trademark, you must guard against genericide - the death of your trademark through misuse.  

There is a long history of popular brands becoming everyday words.  If the public comes to regard a trademark as an apt term for the goods and services it is associated with, it is said the mark has become generic. A generic term cannot serve as a trademark. Words such as "aspirin" and "cellophane" were once strong brand names.  However, they slipped into the public domain because they ceased to be source identifiers or brands .  In essence, they became victims of their own success.

Below are five rules or guidelines trademark owners must follow if they wish to avoid trademark abandonment and forfeiture.  

Rule 1: Avoid Trademark Misuse

Never use a trademark as a noun or a verb. Like the rules of grammar, there are rules governing the use of trademarks.  For example, a trademark must always be used as an adjective followed by a noun.  This principle requires that the trademark come before the common descriptive term for the goods.  If you say, "I lent John my Kindle," you have violated this principle. You can correct this violation by saying "I lent John my Kindle ebook reader."  Xerox spends large sums on educational advertising to remind people that Xerox is a trademark for document copying, not a descriptive term for photocopying.  Since a trademark needs a noun, you can position the word "brand" after the trademark.  An example of this is Pringle brand potato chips.  Don't add an "s" or an "ing" to your trademark.  If you come across a use that violates these rule,  send them a polite letter correcting their trademark grammar. Never use a trademark in the plural.  "Proud publisher of Frommers" is incorrect.  "Publishers of the Frommer's Travel Guides" is the proper way to refer to this well-known travel guide series. Never use a trademark as a verb.  "Red Hat your entire network" is bad.  "Set up your entire network using the Red Hat Linux operating system" is good.

Rule 2: Your Trademark Must "Stand Out"

Since trademarks are used to distinguish products and services from one another, it is important to set trademarks apart from the text adjacent to it.  Distinguish trademarks online and in print by using an initial capital letter, or setting off the entire mark in CAPS or in bold, or by using italics or "quotes" to make the word or phrase stand out. 

Rule 3: Use Proper Trademark Notices

If you are a trademark owner (or a trademark licensee), it is important to use the proper form of trademark notice.  While trademark notices are not legal requirements, they have legal significance. Like a "No Trespassing" sign, a trademark notice gives notice of your rights.  That makes it more difficult for a trademark infringer to assert a good faith defense.  The proper form of notice for an unregistered trademark, is the little superscript "TM" (or "SM" if a service) in close proximity to the mark.  If the mark is registered with the United States Patent and Trademark Office, you may use the "®" symbol. If you are concerned about the trademark notice's impact on the aesthetic appeal of your marketing materials, you can place an unobtrusive asterisk or double dagger ( ‡) after the first and most prominent use of the mark.  The asterisk or double dagger should reference a footnote with the proper form of notice.  Acceptable forms include Reg. U.S. Pat. & Tm. Office,   Registered, U.S. Patent and Trademark Office, and __________is a registered trademark of _______. 

Rule 4: Police Your Trademark

After you've registered your trademark, begin monitoring how others are using it. If someone is using your trademark as a noun, consider sending them a friendly letter correcting their bad trademark grammar. Unfriendly letters should be reserved for trademark infringers.  Employers should monitor how their employees are using the trademark.  Educate them on the proper use of your trademark.  Conduct an internal trademark audit to ensure they are using your trademarks properly and consistently on packaging, promotional materials, advertising, web sites, and other materials.  And, if the way you are using your trademark today differs from what you registered with the Trademark Office years ago, call a trademark attorney.  Failure to use your trademark as it appears in your registration certificate, could complicate your ability to renew your federal trademark.  Many clients of the firm create style sheet containing helpful trademark guidelines, which include approved forms of your trade name, logo or slogan.  Share that style guide with your trademark licensees.  Consider posting it to your web site.  

Rule 5: Avoid Naked Licensing

What is naked licensing?  If a trademark owner grants (or licenses) someone the right to use their trademark on goods, federal law requires that the trademark owner exercise control over the goods being manufactured.   While the more you use a mark the stronger it becomes, if there's no quality control language in the license agreement granting permission to use a mark, it is considered a naked license.  The consequences of naked licensing is cancellation of the trademark registration and forfeiture of trademark rights.   While beyond the scope of this article, every trademark license agreement must contain a quality control provision.  From a policy perspective, naked licensing is bad because trademarks are symbols of quality as well as source identifiers.  If a licensor doesn't exercise control over the quality of the goods that bears its mark, that trademark owner is no longer considered the source of the goods.  The consumer, who  expects a trademark to speak to the quality of all goods purchased across all product categories, is therefore being deceived.  Trademark and unfair competition law abhors consumer deception.  The takeaway is trademark use agreements are a species unto themselves.  If the mark is not used in the manner prescribed by the trademark owner, or the quality of the goods varies over time (a good reason to include an contractual right to inspect in the license), it is a serious matter, as the trademark can be lost.  How much quality control is needed?  That's the subject for another article.

Rule 6: Keep Track of Trademark Office Deadlines

A trademark registration can last forever, provided timely renewal applications are filed, and the mark continues to be distinctive for the goods or services it is linked to.  The following is a brief overview by the United States Patent & Trademark Office on how to maintain your trademark:

For a trademark registration to remain valid, an Affidavit of Use (Section 8 Affidavit) must be filed: (1) between the fifth and sixth year following registration, and (2) within the year before the end of every ten-year period after the date of registration.  The registrant may file the Section 8 Affidavit within a grace period of six months after the end of the sixth or every tenth year, with payment of an additional fee.  The registrant must also file a Section 9 renewal application (Section 9 Renewal) within the year before the end of each successive 10-year period following the date of registration, or within a grace period of six months thereafter, with payment of an additional fee.  Assuming the Section 8 Affidavit and Section 9 Renewal are timely-filed as indicated above, the registration will be renewed for a 10-year term.  If the Section 8 Affidavit and Section 9 Renewal are not timely filed, the registration will be cancelled.  Registrations cancelled due to the failure to file a Section 8 Affidavit and Section 9 Renewal cannot be revived or reinstated. 

Related Links

Trademark Registration and the Single Book Title


DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, trademark, publishing and entertainment law attorney.  A former publishing executive, he is a member of The Beacon Press advisory board, one of America's oldest independent presses.  He may reached at Jassin@copylaw.com or at (212) 354-4442.  1501 Broadway, Fl 12, NYC, 10036. Follow the Law Firm and Lloyd on Facebook and Twitter.

(c) 2021.  Lloyd J. Jassin

Author's Guide to Copyright Clearances and Permissions

You hate clearing permissions.   After all, they are time consuming and expensive.  However, some types of use don't require permission.  If you answer yes to any of the following questions, you may not need permission.   

(i)  Is the material is in the "public domain" (i.e. out of copyright)?

(ii)  Is the material is uncopyrightable (e.g., unadorned ideas are common property)?

(iii) Is the work subject to a "Creative Commons" license?

(iv) Is the use a fair use?

This checklist is explained in greater detail below.  

Of course, if you are unsure whether a work is protected by copyright, or other intellectual property laws, seek legal advice or obtain permission. 

If you plan to make use of a work that does not fall within these four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early. Locating rights holders is not always easy, and negotiating rights and permissions takes time. 

Public Domain (Expired & Forfeited Copyrights)

 

Copyright protection does not last forever. That is why copyright is often called a "limited monopoly.” When copyrights grow old and die, the work they protected falls into the public domain. 

Duration depends upon a number of factors, including, the date of publication, and the date of the author's death.  Literary and artistic works published before 1923 are out of copyright in the United States, and can be used (subject to the below provisos) without permission.    

 

For works created after December 31, 1977, the duration of copyright is 70 years after the author's death.  For works for hire created after December 31, 1977, the duration of copyright is 95 years after publication. 

For works published between 1923 and 1977 the term of copyright is 95 years from initial publication.   However, special rules apply to works created or published before 1978.  Before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright.  If the owner failed to renew, their copyright was forfeited.  A tremendous number of works entered the public domain because renewal was not made during the 28th year.  The renewal scenario requires a further qualification.  If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner.  For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew during the 28th year, the owner of the underlying work, a short story by Cornell Woolrich, renewed the copyright of the short story.  Since the copyright in the film only extended to the new material added by the producer of the film, the owner of the copyright in the short story was able to stop unauthorized distribution of the film.   Similarly, failure to adhere to the notice requirements could toss a work into the public domain.  Before 1988, publication without a proper copyright notice could also invalidate the copyright.

Subject to certain exceptions, public domain works may be freely copied and used in the creation of new works without permission, or authorization, of the former copyright owners. 

Public Domain Traps & Pitfalls

Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as: trademark or unfair competition laws (which protect against confusingly similar usage by another); the right of privacy (a person's right to be left alone); the right of publicity (an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad.  Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new material, may also require permission. 

 

The following is, perhaps, the most insidious trap of all. Although a work may be in the public domain in the United States, it may still be protected in other countries. For example a work by a United States author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany; where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas. 

Uncopyrightable Material

There are certain types of works that are immune from copyright protection altogether.  Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to  facts.  As a general rule, copyright does not protect short phrases, names or titles.  You can, however, trademark certain short phrases, names and series titles, provided, the mark is not already used for similar goods or services.  Copyright does protect the way ideas, concepts, procedures, principles and discoveries are described, explained or illustrated; it only protects the unique way in which they are expressed.  As is to be expected, the dividing line between an unadorned or unprotectable idea, concept, principle or theory, and one that is sufficiently developed to enjoy copyright protection, is often murky.      

Creative Commons

 

Some people and organizations use Creative Commons licenses to make their works available for free to the public. The license appears in close proximity to the work. With a Creative Commons license, the author or creator chooses a set of conditions they wish to apply to their work. If you violate the terms of the license, the potential consequences include compensatory or statutory damages, or an injunction.  So, read the Creative Commons license carefully!
Fair Use

Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission.   The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster."  Against this backdrop, fair use can be looked at as a balancing act.  It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators.  

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement.   The central point is that fair use determinations involve risk.  So, if you can't make the decision yourself, and are risk adverse, seek permission.       

To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors.  No one factor is determinative, although factor four, which relates to economic harm, weighs heavily in any fair use decision. 

1. The purposes and character of the use, including whether the use is primarily commercial; 
2. The nature of the work that's been copied;
3. The amount and importance of what was taken in relation to the original work as a whole;
4. The effect the copying has on the marketability of the original work and its derivatives

Top 10 Considerations When Evaluating Fair Use 

While there are no mechanical rules to define with precision what is a fair use, the following criterion, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.       

• Fair use favors transformative uses.   Use the work as a springboard for new insights.   Critique the original.  Make a connection between it and other works.  Use it to buttress your own arguments, or the arguments of others.  
• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one.  That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music. 
• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works. 
• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use. 
• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.  Make sure the amount you use is reasonable in light of the purpose of the copying.  
• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.
• Parody is a work that that ridicules or mocks another work.  Fair use favors parody.  It does not favor satire.  Make certain the parody is apparent.  A conservative approach is to conjure up just enough of the original to convey your parodic points. 
• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  
• The most important consideration concerns economic harm.  Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.

To paraphrase the Chicago Manual of Style, fair use is a use that is fair, so be bold, but also heed the Copyright Office's warning: "[T]he endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules."
Fairness, like beauty, can be debated, but not easily defined.  If you are unsure, or, if permission is denied and you feel the material is important to your work, consult a copyright attorney.   


Additional Resources:

Copyright Office - Search Fair Use Opinions
Classroom Use Guidelines (not legal authority; but agreed-upon minimums)
Creative Commons

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin










 

Mein Kampf Copyright Battle & the Hitler 'Life Story' Option

The Book Germany Pledged to Suppress &  Hollywood Sought to Option. (Updated)

[Update:  This story was originally posted on 2-12-10.   Today, 1-25-12, we received reports that a Bavarian court has banned a British publisher from printing excepts of Hitler's manifesto in Germany.  Described by The New York Times as "the work that sowed the seeds of the Holocaust," in the early days of WWII, David O. Selznick scrambled to obtain Hitler's life story rights.]

By Lloyd J. Jassin

IPK at reports that the German History Institute in Munich is planning to publish an annotated version of Adolf Hitler’s controversial Mein Kampf in 2015. [IPKat] Banned in Germany, the proposed publication date corresponds with the date the book falls into the public domain - seventy years after Hitler’s death. In response, the Bavarian State Government, which took over rights to the book at the end of World War II, has pledged to continue its efforts to suppress the book after its copyright expires. 

Hollywood's Hunt for Hitler Biopic Rights


The Institute's intention to publish Hitler's autobiographic rant in Germany recalls another Hitler copyright battle, a time when Hollywood scrambled to secure Hitler's copyright and life story rights.   

Three days after the start of W.W. II, legendary Hollywood producer David O. Selznick drafted a memo to story editor Katherine Brown, in which he demanded that she “Immediately upon your receipt of this wire, please drop everything and rush over to the Hays office and register [the titles to] Mein Kampf as well as anything else necessary to protect it, including Life of Adolph [sic] Hitler and My Life by Adolph Hitler.”

In his memo he stressed that “I hope there is no nonsense about whether this is copyrighted or non-copyrighted." The Hitler project, which Selznick hoped to attach Ben Hecht and Alfred Hitchcock to, was scuttled by the U.S. Government and, thus, never produced.

Parenthetically, Mel Brooks did not option Adolf Hitler’s life story rights for his musical (Springtime for Hitler) within a movie (The Producers), relying instead on the First Amendment.  Under the First Amendment, no one owns their life-story rights.




Resources
Memo from David O. Selznick (Modern Library)

The Modesto Bee (1/2/42), Louella O. Parsons' column, "Selznick Plans Film on Hitler from Psychopathic Standpoint"

Twain, Tesla, and Tech: How Mark Twain's Publishing Contract Foresaw the Digital Age

By Lloyd Jassin

From 1900 to 1915, Harper Brothers, Mark Twain's publisher, was led by the bold and publicity-savvy Col. George M. Harvey. Harvey aggressively courted the financially struggling Twain - a failed self-publisher - proposing an innovative publishing deal for his unpublished memoirs.

The proposal:

• 

  Twain & Tesla
  

  Twain would sign 100 copies of his autobiography
• These would be stored in a vault until 2000 A.D.
• Harper would then publish them "in whatever modes should then be prevalent, that is by printing as at present or by use of phonographic cylinders, or by electrical methods, or by any other method which may be in use."

Informed most likely by his dual interests in the law and novelties, Twain's publishing agreement is distinguished by what may be the first "electronic rights" or "future technology" clause to appear in a publishing contract.

Unlike HarperCollins' mid-twentieth century contracts, which did not expressly address electronic methods, Twain's 1900 contract with Harvey was masterful (from a legal perspective) at addressing a major contractual "what if" -- how future technologies might impact book publishing. 

The strategy of delaying his memoirs' release for one hundred years cleverly sidestepped legal entanglements while preserving Twain's unvarnished truths about friends and foes alike. Of course, one has to wonder if the story of one hundred signed copies was fabricated, or whether a time capsule containing a trove of signed first editions truly resides somewhere in the Harper archives.

Twain's embrace of technology:

• First novel written on a typewriter: "Tom Sawyer"
• Used wax recording cylinders to dictate his autobiography
• First person to have a telephone installed in a private home
• Enjoyed the Telharmonium, an early music streaming technology that delivered live music performed at a remote location over a regular telephone wire to Twain's home
• Quickly adopted electric lighting in his home, being among the early users of this technology

Twain also heavily invested in a typesetting machine that revolutionized the printing industry but ultimately bankrupted him. On January 6, 1889, Twain activated the Paige Compositor. "At 12:20 this afternoon," Twain wrote, "a line of movable type was spaced and justified by machinery for the first time in the history of the world! And I was there to see it. It was done automatically, instantly, perfectly."

Twain quipped about new technologies, "The trouble with these beautiful, novel things is that they interfere so with one's arrangements. Every time I see or hear a new wonder like this, I have to postpone my death right off."

Fast forward to 2024: Publishers Grappling with AI

Just as Harvey's contract anticipated future technologies, today's publishers face a new frontier: Artificial Intelligence. The industry is now grappling with how to address AI in author contracts, considering its potential impact on:

• Authorship: Defining what constitutes an "AI-assisted" work
• Copyright: Determining ownership of AI-generated content
• Royalties: Structuring fair compensation for AI-involved creations
• Competition: Balancing AI-generated books with human-authored works

This parallel between Twain's era and our own highlights the ongoing challenge for authors and publishers: staying ahead of technological advancements while protecting authors' rights and the integrity of literary creation.

As we navigate these uncharted waters, Harvey's forward-thinking approach serves as a reminder of the importance of adaptability and foresight in publishing contracts. The industry continues to evolve, facing new challenges and opportunities with each technological leap, from Twain's typewriter to today's AI.

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Letter from Mark Twain to Harper Bros. Accepting Contract Terms