Sunday, September 19, 2021

Does Failure to Submit Copies to Copyright Office Put an End to Copyright?

Postcard: Malo-les-Bains - Avenue Kleber,
sent 30 April 1915
Dear Rich: We are a specialized online magazine for postcard collectors. From 1983 to 1989 a print magazine, Postcard Collector, published many articles which we would like to republish. Each issue of the print magazine had a copyright notice ("© Krause Publications, Inc.") Questions: (1) As I understand it, the publisher would have had to submit 2 copies of the magazine to the Library of Congress to complete the registration process. How can I find out if the publisher actually sent copies of the magazine to the LoC to complete the process? (2) If the publisher did not, is the copyright notice meaningless insofar as being able to freely use the articles (we have contacted several of the authors who are still alive and they would be happy to have us re-publish their work). (3) If the publisher did submit the copies to the LoC, is it possible to find out if the publisher renewed the copyright? As I understand it, the copyright expired after 28 years, so even if the publisher did comply with the registration process, the copyright would have expired no later than 2014. 
The failure to submit the deposit materials won't terminate copyright protection; the penalties fall in the wrist-slap category. According to the Copyright Office, "If the required deposit is not made within three months after receiving a demand from the Copyright Office, the owner may be subject to a fine of not more than $250 for each work." In other words, searching the Library of Congress for proof of deposit won't help. Searching copyright renewal records also won't help because renewal is only required for works published before 1964. Our conclusion? We believe that copyright protects the 1983-1989 Postcard Collector magazines for 95 years from the date of publication.
So, who owns the magazine copyright? We don't know. Krause Publications, a publishing business with 46 magazines and 750 books, was the copyright owner until 2002 when Krause was sold to F+W. F+W went bankrupt in 2019 and auctioned off the profitable magazines (but there's no indication of what happened to the copyrights in the defunct magazines). 
Did the authors retain copyright? The authors would have retained the copyright in their articles unless they were employees of Krause, or they signed an assignment of copyright or work made for hire agreement. In other words, the article authors may have granted the first-publication license and kept the copyright. That wasn't uncommon back in the day. Further discussion with the authors may prove beneficial.


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