Wednesday, December 15, 2010

Is it legal to sell restored covers of pulp magazines?

Dear Rich: I am a dedicated digital restoration artist, and enjoy nothing more than restoring a vintage work that's been torn, faded, and dogged almost to death, and bring it back to life the way it appeared on the first day it was printed. 100% digitally reborn, I call it. My collection of digitally restored vintage posters from Japan and China is the world's largest collection, and can be seen here. Problem is, in my old age I suddenly developed a desire to also make some money, and have a new plan. The Asian posters are well past any copyright considerations, but I have been restoring some great old science-fiction magazine covers from a defunct publication called "Amazing Stories", begun in 1926. Even though I'm somewhat familiar with copyright laws, however, it does not allow me to answer my own question, I'm afraid. I was assuming that since the publication was defunct, there would be no issues, but now I notice it belonged to the Ziff Davis Publishing Group when it was still being printed. The copyright laws regarding restorative works become a little murky, because although I cannot claim copyright on any items by someone else per se, the law allows me to copyright my digital restoration work. So, my question is really, if I digitally restore works and sell reproductions of the restored format, is this legal if the company itself is still extant? Or would I best enter into an agreement with the publisher of the erstwhile publication? It appears as if the existing copyrights and trademarks associated with Amazing Stories are now owned by this company. Ziff-Davis owned it for a while butsold it to TSR who apparently sold it off to others, and the magazine limped along in one form or another until publication halted in 2006.
Who owns what? Like other extinct publications, it's difficult to tell who owns what, or if elements of the old magazine are even 'ownable.' If you're betting the odds, then Amazing Stories covers from 1923 through 1963 are most likely in the public domain. That's because these works must have been renewed and most works were not. That's not a definite, but it's a strong possibility. (BTW, you can hear an interview on the PD with author Steve Fishman, here.)
Why can they sell them? You'll notice that the illustration we are featuring includes a copyright notice from this company. As you can see by following the link, the company sells high quality digital versions of Amazing Stories covers and other pulp magazines. How can they do this? One possibility, though unlikely, is that this company acquired all the rights and they now own the copyrights hence the placement of their copyright notice. (By the way it's illegal to place false copyright notice information on a work though it's a common practice). Another possibility is that the company researched the Copyright Office records and determined that the work was public domain. (If that's the case, placing a copyright notice on the work is improper because anybody can copy it freely.) A third possibility is that the work is 'orphaned' -- it's still protected but nobody is looking out for it. And that's why this company can risk offering it.
What about trademarks? It's likely that the last buyer of the Amazing Stories catalog acquired trademark rights. However, nobody appears to claim a valid federal trademark registration to Amazing Stories. In any case, we wouldn't worry too much about that particular issue unless you begin making or selling new products with the Amazing Stories name or logo, or unless you claim some affiliation or association with the Amazing Stories brand.
Your course of action. You can double-check Copyright Office records to see if you can find any renewals for covers prior to 1963. If there are none, you are free to sell your restorations of covers from that time period. You shouldn't include a copyright notice because restoring a public domain work, as difficult as it may be, does not amount to copyrightable subject matter. That doesn't mean you can't be proprietary -- for example, by installing a visible watermark as a Photoshop layer.