PW has a story today on a bizarre copyright case in which a publisher is suing an estate over works which are ostensibly in the public domain:
Devault-Graves released the U.S. edition of the title, which includes three stories from early in Salinger’s literary career which had fallen into the public domain, in July 2014. A culmination of what the publisher’s Tom Graves described to PW in July as an “exhaustive” and expensive process that involved a team of copyright lawyers, the book is, he said, the first legitimate Salinger book to be published in more than 50 years. Upon its release, the Salinger estate, after a brief investigation, confirmed it would not halt Devault-Graves’s publication in the U.S. But now, as the publisher attempts to sell the work abroad, Devault-Graves asserts the estate is “tortiously interfering with [its] contractual agreements with foreign publishers,” including those in the U.K. and Japan.
The estate says that it holds the copyrights outside the US because the author died only 5 years ago, and since most countries have a copyright term of death plus 70 years (or 50 years) the 3 stories are still under copyright.
The publisher argues that under the Berne Convention (the international treaty on copyright) there are countries where the copyright term does not exceed the US copyright term.
So who is right?
The estate is correct in that it holds the copyrights in the countries where the 3 stories are still under copyright, but the publisher is also correct in that there are countries where the copyrights expired at the same time as in the US.
This is the clause which the publisher is citing:
In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.
I’m not a lawyer, but it looks like both parties are correct. Unfortunately, I’m not sure that this helps the publisher any.
The stories in question are either in copyright, or they are in the public domain. In the countries where the copyrights are still valid, the Salinger estate owns the rights.
But in the countries where the copyrights are not valid, no one owns the copyrights. The 3 works are in the public domain, and so there would be no need for a local publisher to sign a contract with the US publisher.
image by Skley,