Friday, October 11, 2013

Can I Publish Unpublished Poem?

Rabbie Burns, one 
of the great amateur poets.
Dear Rich: I have a copy of an unpublished poem that an amateur poet gave to another person as a gift. I also have the letter that accompanied the poem, in which the poet states that he has destroyed his original and the recipient is free to do whatever he wishes with the copy he sent. In his reply (which I also have), the recipient thanked the poet and added that he might publish the poem at a later time. The poet acknowledged the recipient's statements in his own reply and raised no objection to the idea of publication. The poet is now dead but the recipient is still alive. If I have the recipient's permission to publish the poem, is that protection against a possible infringement claim by the poet's heirs? We think the permission needed would come from the poet's estate, not the recipient of the poem. This permission can be informal -- even an email. At the same time, if the estate is passive (doesn't seem to know or care) about their relative's poetry, you could consider, after weighing the risks, of proceeding without permission. Below is a legal analysis.
  • The poet's estate owns copyright. The poet's estate retains copyright ownership and will continue to own it for 70 years from the date of the poet's death. 
  • "Free to do whatever he wishes." The poet's statement that the recipient can "do whatever he wishes with the copy," doesn't really establish any clear rights. It's ambiguous whether the poet is referring to the physical copy or the legal right to reproduce (or modify). 
  • Implied license. If the poet intended to transfer any rights under copyright law, his statement might be an implied license. The recipient could not transfer those implied license rights to you (any more, for example, than the recipient could transfer his driver's license to you). 
  • Silence is not consent. The poet's failure to object to the recipient's plan for publication is not the same as "consent." If there ever was a lawsuit over the issue (and we hope you're not dealing with this poet), the failure to respond wouldn't be much of an infringement defense.

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