Copying Dragnet: Risk v. Public Domain

Some readers were SSCD (shocked, surprised, concerned, and disappointed) over our entry about whether episodes of the Dragnet TV Show are in the public domain. One reader cited Steve Fishman's public domain book as evidence that we got it wrong. "[Fishman] suggests that, because broadcast does not constitute publication," wrote the reader, "and because federal trial courts have decided that syndication doesn’t equal “publication” for copyright purposes, 'the conservative course of action is to assume that programs syndicated before 1964 are not in the public domain, even if they were not timely renewed.'" A similar sentiment was expressed by an attorney who suggested that the first question to ask was "[W]hen did Mark VII productions, the presumed copyright owner of Dragnet, start selling copies of the program?" Readers also warned us about relying on unsupported assertions in Wikipedia or the Internet Archive. All good points (and we hope our previous answer doesn't result in the loss of our license to blog). In our answer, we asserted that some (or all) of the 1951 Dragnet series episodes "appear to be in the public domain" because they've been offered for sale by public domain DVD vendors, because of a claim in Wikipedia, and because of the presence of the material on the Internet Archives. We should have mentioned that relying on the Internet Archives as a standard for the public domain can be risky, and we should have added that unsupported assertions in Wikipedia are not sufficient to ward off liability from copyright owners. The only way to guarantee public domain status is to research and prove publication and then research Copyright Office records and confirm a failure to renew (or some other basis for PD status). In addition, as we indicated in our linked entry, use of the Dragnet theme music may trigger objections from Dragnet Music Company, publishers of the theme tune (and which may explain why some public domain vendors have removed the theme).
Proving publication ... Steve Fishman, author of The Public Domain (of which we are the editors) does recommend a conservative course of action when using TV series from the 1950s and 1960s. That view is based on the confusion as to whether syndicating television shows is a "publication," triggering the renewal requirement. Two courts have ruled that syndication agreements where there is no copying does not amount to publication. (Broadcasting the original shows is not considered publication.) Fishman writes that "[T]he riskier course of action is to rely on the assumption that programs syndicated in 1964 and earlier have been published for copyright purposes. Therefore, if they were syndicated before 1964, they had to be renewed 28 years later or they entered the public domain."
That Said Dept. We respond to a lot of queries regarding the public domain and often we respond based on a risk analysis -- how likely it is that we think the reader will run into a problem. We believe these Dragnet episodes fall in a middle-world between public domain and copyright-protected -- a place where orphaned works live or where rights are not clear, and as a result, where owners don't appear to enforce copyright claims. We must add that the fact that many people distribute these episodes without apparent consequence is not a guarantee of future behavior (nor can we comment on the moral consequences of these uses) but the risk of copying the Internet Archive episodes or those duplicated by public domain vendors seems substantially lower than copying those episodes legitimately licensed by the copyright owner.