Thursday, December 6, 2012

Folsom Prison Diary Blues

Dear Rich: I've read your response on the publishing of Great Uncle's diaries and appreciate that. I have possession of a Folsom prisoner's diary that goes from about 1911 - 1915. It was given to me by a friend and local historian about 30 yrs ago. I've found "his last name" in the diary, but I know he was never a prisoner, so am figuring he was given it by a relative. I don't remember years ago him mentioning a familial connection, but it's logical (and not a very common name). The man who gave me the diary has been dead over 20 years now. His wife has been gone close to that long too. The diary writer is not identified. There is a short poem inside the cover though that was written by a man who's not referred to anywhere else in the book so I've wondered if he might have been its author. I haven't taken it to Folsom yet because I'm wondering if I shouldn't work too hard to know who the author really is? Am I allowed to publish a "diary by an UNKNOWN prisoner at Folsom"? Can I get a copyright to do that? The diary is either (1) in the public domain -- in which case anybody can reproduce it and nobody can claim copyright -- or (2) it is protected by copyright -- in which case ... well, read on.
Is it PD? Probably the biggest issue is whether the work is considered anonymous or not. Under copyright law (scroll down), an author's contribution to a work is “anonymous” if that author is not identified on the copies of the work. We're not sure if that's the case with the diary, but if the author is not identified, the copyright lasts for 120 years from the date of creation which is unlikely to make it public domain. If it's not anonymous and you can identify the author by perusing the diary and the author died before 1942, you can claim public domain status and freely reproduce the diary. Sound confusing ... but wait there's more. You may want to take a look at a rarely used section of copyright law, 17 U.S.C. § 302(e), which states:
(e) Presumption as to Author’s Death.— After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefits of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title.
Bottom Line Dept. The lineage for this publication seems so distant (and tangled) that you may decide to proceed with publication regardless of copyright law. After all, the only way someone can stop you is to demonstrate that they are the copyright owner which -- based on your info -- seems like a difficult task. If the chances of being hassled are slim, you may wish to risk it for the sake of popularizing this historic document.

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