An End Run Around Public Domain

Richard Wheeler reports that some literary heirs have found a way to undermine public domain — they trademark the name of the author, as Zane Grey’s estate has done with his name.

What the trademark accomplishes is to make it impossible for anyone to
publish a Grey novel that has fallen into the public domain unless the
publisher licenses the name of the author from the heirs. Oh, you can
print the public domain material, all right; just don’t put the
author’s name on it.

I wonder if this has ever been tested in court? If not, it probably will be soon.

34 thoughts on “An End Run Around Public Domain”

  1. Lee,
    A press release from Zane Grey, Inc., says this: “Zane Grey, Inc., is a privately held corporation which owns the copyrights and distribution rights of all the Zane Grey writings. This includes a published output of 61 novels (etc.)… Zane Grey, Inc., can offer licenses for use of the name, Zane Grey, for commercial purposes, as well as publication rights to many of th novels, outdoor stories and shorter works as well as movie rights for nearly all of the 61 full length novels that Zane Grey wrote.”

  2. I think if this works it would have been done a long time ago. People have been trying to make money without working since the beginning of time.

  3. A correspondent on my site says that my material is an “old wheeze,” and cites UK law to the effect that an author’s name may be used to identify public domain material. He does not go into US law. He does not go into the question of whether a publisher may use the trademarked name to write jacket copy or press releases, clearly a commercial purpose. If not, the trademark effectively checkmates the use of the public domain material. In Zane Grey’s case, much of his material is in the public domain (everything prior to 1923) in the U. S.

  4. His heirs can profit from his work and they have the extra sales hook of being the heirs. They could write new forwards and put out their own editions. It looks like about 1/3 of his 90 books came out before 1923, the bright dividing line for what is in public domain and what is not. How many of those 20+ books are out of print? Who but antique dealers benefit from that?
    Admittedly, I have a vested interest in profiting from e-books. I have a new public domain book that went up on last week. Its Russell Thorndike’s Doctor Syn which was the basis for a few movies including the Disney version called The Scarecrow of Romney Marsh.

  5. It is unenforcable.
    A trademark is not allowed to be descriptive of the product. So I can’t trademark ‘Black Pants’ and prevent others from using the description of their own dark trousers .. but I can use it as a trademark for a computer company, since it doesn’t describe the product.
    Since ‘By Zane Grey’ is a description of the product, it can’t be trademarked for the product.

  6. I really liked that Scarecrow series with Pat McGoohan. Why shouldn’t Thorndike’s heirs keep the rights forever? Who are you to take it for something as worthless an ebook? I mean, really.

  7. Mark wrote:
    “I really liked that Scarecrow series with Pat McGoohan. Why shouldn’t Thorndike’s heirs keep the rights forever?”
    So did I, the Scarecrow series was wonderful entertainment. Mr. McGoohan is such a top-notch actor. And Mr. Thorndike created an enduring character. But there is a powerful argument against the heirs keeping the rights to the character forever.
    It’s something like this:
    (1) The writer and the actor were born with their talent, they did nothing to deserve or earn it. And it was their talent, not them as persons, that created their success. Since not everybody is born with talent, it is up to those to whom it was given to use it for the benefit of all. Therefore, once the writer or actor has passed, their work should be given to all to do with as they can to build upon it to create more value for all of society.
    (2) When such an actor or writer genius is born, they receive as their inheritance all that Western Culture has achieved, and again, they do nothing to earn or deserve this. The roads, the subways, the industries, the education, the finacial system, the Constitution, TV, laptops — all were created by earlier generations and these benefit all. Therefore, since the genius benefits from earlier geniuses, the current genius has a duty to add his or her new work to the Culture, for the benefit of all future generations, as they see fit.
    (3) The heirs of the genius may receive the money passed along through the will, so they are compensated. But having little or nothing to do with the creation by the genius, they are not entitled to control the works of the genius.
    Such, anyway, is the argument against.
    Oh, and Mark, e-books are more valuable than regularly published paperbacks since so much more can be done with them by the reader such as inserting notes, and cutting and pasting, and then sending the notes to colleagues. Can’t do that with a paperback. 🙂

  8. What Dan said. (No relation)
    I also liked the Disney movie as a kid. VHS copies of that movie are available through for $45. There is an Arrow paperback version from 1966 also available for $45. Since the book is in public domain, there is a print version available through Wildside Press for $15.
    Would you be better served as a reader having only the expensive versions in the marketplace? There are people who would like to read the book without owning the collectible thing/ fetish item.
    While you may not value ebooks, there are people that find the various ebook readers a viable alternative to hauling around a load of paper while on vacation. And new avenues of distribution mean new revenue streams from new readers.
    As to who I am: I’m a guy who likes the material and wanted to see more people get the chance to read it at no expense to them. So, I hired artists for the cover and interior illustrations, did the pre-press work and made the big pdf file. For that capital investment, I get a share of the ad revenue generated by the book.
    Publishing is not a get-rich-quick scheme.

  9. Those arguments are ludicrous. There actually are some good arguments in favor of limiting copyright, I’m sure, but those aren’t them.
    “The writer and the actor were born with their talent, they did nothing to deserve or earn it. And it was their talent, not them as persons, that created their success.”
    Sorry, but that’s utter horseshit.

  10. David, I see problems to the arguments, too, but you don’t prove they are wrong by swearing at them.
    In favor of the argument that talent is what brings success, we could look at Barbra Streisand. Who can sing like her? Basically, nobody. But she was born already able to do it, although, of course, she worked at it. For all the rest of us who can’t sing (and I can’t carry a tune in a wheelbarrow), we can’t have a chance at the success at singing that she has. Makes sense, doesn’t it? Therefore, so the argument goes, why should her records by controlled forever by her HEIRS? Doesn’t make sense either, really, does it?
    David, I respect your ideas but your way of expressing them needs a polish, a shave and a haircut (I need a haircut, too).
    Anyway, if you were Barbra Streisand’s son, how would you justify controlling the sale of her records forever? For twenty years, fifty years, maybe, but after a while, the talent belongs to the culture — or so the argument goes.
    Meanwhile, three cheers for Bill Williams (no relation). He is making value by re-introducing, re-advertizing a work that is now, perhaps, not known by next generations. Obviously, for doing the work, he deserves the reward from the advertizing.

  11. Horseshit was the perfect word to describe the statement I quoted. I stand by it. However, if you have an alternative that captures the essential horsetshit-like nature of that statement, I’ll consider it.
    You think Bill Williams should be allowed to profit from a dead writer’s work, but his heirs shouldn’t? How does that make sense? I’d have more sympathy for that position if he were giving away the product for free. Instead he’s selling something he didn’t create. Whom does that help other than him?
    I think Barbra Streisand’s heirs (to follow your example) should be allowed to sell her records for as long as people will buy them. How does it make more sense for Joe Blow to profit from them than Joe Streisand? It’s not like we’re talking about someone giving them away. The question is who profits?

  12. David,
    Actually, I’m giving the books away and getting a share of the ad revenue they generate. WOWIO is free for the readers. And their checks clear.
    If other people want to make their own versions of the books in public domain that I’m doing, more power to them. And why shouldn’t the heirs make their own version and profit also?
    If it makes you feel any better, the number of the works in public domain should remain stable as Congress keeps kicking the copyright can down the road. Time Warner and Disney keep putting pressure on Congress to extend copyright protection to protect meal tickets like Superman and Mickey Mouse.
    Would you be happier if no one profited and the material slowly disappeared over time?

  13. The problem with perpetual copyright is that often the executors, to reframe the discussion slightly, are greedy fools. Or they hire greedy fools to handle the business for them. So, even under the relatively limited copyright protections afforded these days, though Disney is working on it and not for your sake, dead writers’ work is often made unavailable for reprint because someone with say-so fantasizes that they are sitting on a goldmine, if only one day they pan that strike, and they refuse all reasonable offers for reprint fees, either out of ignorance of the true “market value” of the work in question or in the genuine, usually deluded hope that It Takes Only One purchaser will to plunk down megabucks to make an heir rich.

  14. If there is any profit it’s wrong. UVA has offered free ebook classics for years. They aren’t making anything commercially. eBooks can be handy. I have one on my cell phone, but they generally don’t sell. That’s why they aren’t commercially viable. This is why an eBook only publication is not a credit.

  15. David wrote:
    “Horseshit was the perfect word to describe the statement I quoted. I stand by it. However, if you have an alternative that captures the essential horsetshit-like nature of that statement, I’ll consider it.”
    If you disagree with a statement then just say so and give your reason. So far, you have sworn at the statement twice and called it ludicrous but you haven’t said why you disagree.
    Basically, we are all born with talents and abilities we did nothing to earn. It was an act of fate, of random DNA. Furthermore, if our abilities as writers find favor with the public, it’s also an act of fate, pretty much, who the public favors or disfavors. So it seems that a good writer who is successful owes it to a lot of luck as well as lucky native ability. Wayne Gretzky said he owed his success to the National Hockey League. If the League had not existed, he would never have made a fortune or set hockey records. David, if you can refute this argument with a reason, do so. Take your best shot. It is stated in good faith by me and deserves for you to react in good faith.
    David wrote:
    “You think Bill Williams should be allowed to profit from a dead writer’s work, but his heirs shouldn’t? How does that make sense? I’d have more sympathy for that position if he were giving away the product for free. Instead he’s selling something he didn’t create. Whom does that help other than him?”
    Yes, this is a contentious issue. Who owns the work of a writer? Who should be able to profit from it?
    The answer society is using at present, I believe, goes back to the source of the writing. The writing is produced by lucky inborn ability and by the writer’s fortunate connection with his times. It luckily provides something that the era needs and so, therefore, is useful and has a success. The writing may have a lucky enduring success for countless generations. So should the heirs have all the marketing rights to this lucky success because they were lucky enough to be born as the writer’s children?
    Some agree with you, David, that, yes, “if my mom or dad wrote created a great book, then he or she can give it to me and it’s mine.” But, like Wayne Gretzky, every writer owes their success to the invention of writing, printing and paperbacks, and to the existence of a public who reads their books. If the writer then is lucky in talent and lucky with the public, then it is luck and lucky talent that creates the success. This justifies limiting the time period of the ownership to the writer’s life and for a set number of years after the writer’s death. But after these two periods expire, that’s it, the ownership reverts to the culture, to everybody. And anybody with energy, like Mr. Bill Williams, may make a profit bringing these valuable works to persons who have not been exposed to them before. The immediate heirs, for a set time period, can profit from the writings, but then anybody can. It seems reasonable to me. Why should a grandchild of a great writer own the rights to a book written by the grandfather fifty years before his birth? Why does the grandchild DESERVE to do so? He doesn’t.
    So when you wrote:
    “I think Barbra Streisand’s heirs (to follow your example) should be allowed to sell her records for as long as people will buy them. How does it make more sense for Joe Blow to profit from them than Joe Streisand? It’s not like we’re talking about someone giving them away. The question is who profits?”
    You have to say why the heirs should be special, not just assert that they are.
    Sorry I was so verbose.
    So tell us, David, the thoughtful persons who are contributing to this discussion, why you think the heirs deserve to own the rights. And tell us why Mr. Bill Williams shouldn’t be compensated for bringing forgotten works to the attention of the current reading public.
    Anyway, everybody, and especially David, let’s all have a great L.A. day (whether we live in L.A. or not.) And I owe this opportunity to speak my mind on this blog to Lee Goldberg. So thank you, Lee.

  16. “Why does the grandchild DESERVE to do so? He doesn’t.”
    He or she does. It’s their legacy, but I can say one thing, this is only an issue with ebooks. As soon as someone has to pay for printing it’s different animal. Mark Twain’s work is public doamin until you want a printed copy. This says it all. I took Bill up on his offer and have the Dr. Syn book on my cell phone, but I can’t say the relatives of the suthor shouldn’t profit from its printing and sale. They should.

  17. Bill wrote: “Actually, I’m giving the books away…”
    That’s good to hear. I do think it makes a difference when one is giving away public domain works versus charging for them. I appreciate the correction.

  18. Mark says that a writer’s heirs deserve to own the marketing rights because it is their legacy. Agreed. Totally. And that’s what happens for 70 or so years. So the question is, should the rights then pass into the public domain?
    For the vast majority of book, yes, because there is no longer much, if any, commercial value left, but there is intellectual value for a tiny minority who read old books for research reasons rather than as entertainment. And if some new creator can use these books to build commercial value, something the heirs can’t do or don’t think of or just won’t, then the new commercial value belongs to the new creator. This is the law, now, as I understand it, and I think it is fair and just.
    But not for every work. Not for Mickey Mouse and Disney. Not for Superman. These creations are clearly the property of the creators who continue to create with them. Therefore, could we have a “special case” rule that allows for, say, Disney to apply for an additional 50 years of copyright protection? And could David or Mark also apply, and the heirs to Barbra Streisand’s CD’s also apply, for such protection for works created by family members, given that there is so much value in the works and it is lasting so much longer than the regular 70 years or so?
    This “special case” rule wouldn’t bother me at all, and I think the writers and their heirs would deserve the extra protection for the writer having created something with so much value.
    Anyway, it’s another great L.A. day, and this discussion is certainly envigorating. Thanks again to Lee for the platform.

  19. Mark,
    Thanks for the download. It’s funny that you mention Twain, there is a strong Huck/ Tom influence on Doctor Syn.
    I think that we all agree that the heirs should control and profit from the works of their talented ancestors. But the question is for how long. The international standard is ‘Life +50’ while the standard in Mexico is ‘Life +100’, so the clock starts with the death of the original creator.

  20. As I more or less said on Richard Wheeler’s blog, I’m at a total loss as to how anyone can fail to see how current copyright law is unfair to both artists and their heirs. If I’ve spent my life building a brand (my name) and a product line (my work), then I should own it in perpetuity. Period. This so-called “noble” idea that the public is somehow “owed” my intellectual property after a certain number of years is simply absurd, and the fact that the “founders came up with it” doesn’t hold much water with me. They also thought slavery wasn’t all that bad, too.
    The bottom line for me is this: in no other area of commerce would people be allowed to simply claim the fruits of your labors after a certain amount of time had passed. Trademark and Copyright should be extended in perpetuity. If you want to give away those rights, go for it! But as I said elsewhere, it should be a personal choice, not public policy.
    I also find it interesting that at least one poster talked about the common problem with trying to get things back into print but encountering heirs who want too much money to release the rights. The solution, as people seem to be suggesting, is to simply take the rights of these heirs instead, since the work somehow “deserves” to be out there. So the heirs are short-sighted, but the people whose goal it is to profit from those rights just happen to know better than they do? I don’t think so. Maybe the heirs are wrong, maybe they aren’t—but it should be their choice and no one else’s.

  21. The last I heard, inherited wealth is an approved practice in this country. One I approve of even if history screwed me in this regard. And Bill, it’s life + 75 years. I’m thinking maybe that isn’t enough?

  22. The copyright law strives to balance the rights of the heirs with the rights of society. Shakespeare’s plays are so valuable to society that they continue to be seen by audiences all over the world every year. If the heirs controlled the plays, they would be acting as a bottleneck through which each Theater Manager would have to go to get permission to put the play on. This situation would be intolerable, inefficient and open to abuses of all kinds. If the heirs didn’t like you, say, they wouldn’t let you put on the play, and the people of your town wouldn’t get to see it acted. The audience has rights to see the work since it is such a cultural achievement.
    Therefore, the law gives the heirs ownership for 75 years or so after the death of the author. This seems fair to me. Very, very few properties have any commercial value 75 years after the author dies although they might have historical value. But if a property did have commercial value, like Mickey Mouse and Disney, then I agree there should be a special case rule that could extend the copyright another 50 years.
    But after a while, all work of all kinds becomes the common property of everybody as we are all in it together. The ultimate standard for judging all issues is, “what is good for everybody,” not “what is good for this person.” This is why utilities that burn coal and put carbon dioxide into the air are being made to stop doing so. It hurts the owners, but it helps society.
    This is why we have income tax. Society exists for the benefit of all. Whenever a value is created by a writer, the idea is to get it out there to the people who benefit, overcoming every bottleneck and obstacle. After a while, this would be the heirs. But, too, the heirs can pass on the money the book earns to their heirs. The copyright laws seem to balance the rights of the two groups pretty good to me. Most books have no need for 75 years of protection after the author dies. And 75 years is a lot of years.

  23. Mark,
    I was using the international standard of the Berne Convention as a rule of thumb for post-1923 works, but each country has its own variation. As with any law there are box cars of lawyers’ hours to bill and nits to pick. That is why I adhere to the hard and fast rule concerning works published before 1923.
    Like I said, we agree in principle, but search for agreement on the length of control by the heirs. Is it enough for the great great grandchildren to benefit or do the great great great grandchildren need a cut too?
    If I can bring us back to the original point, I would be happy to make a deal with the Zane Grey people if I thought the audience for 100 year old westerns had mad computer skills.

  24. Great, talk about a false dilemma: Carbon dioxide and literary works in the public domain! Why shouldn’t any relative profit in any generation if the works hold up commercially? Again, few will try to print them, since that costs money and it doesn’t have their name on it.
    eBooks are one more example of how electronically published is not published in the known sense of the term. This message has not been brought to you by Vonage.

  25. Mark, I see your point that any relative should benefit from published works in any generation if they hold up commercially. This is an honorable position to take, many agree, and you could argue this point to Congress with the intention of changing the copyright laws to “perpetual copyright.” And if you see it this way, I respect it.

  26. Ah, Mark, now I got the argument, I think, that explains the copyright law.
    The argument is something like this:
    If I buy a paperback, it is mine and I own it, and if I want to make copies of it and sell them, what right does anybody have to stop me? (It’s my property and I can do what I want with it.)
    So the state steps in and takes this property right away from the buyer for a certain length of time, to allow the author and his heirs a length of time to profit from it. But neither the author nor the heirs can take away the property right of the book owner forever. So after the 75 years is up, the owners of the books can do as they wish with their property.
    So the law protects the author by suspending the ownership rights of the book buyer.
    (I’m not saying you have to agree, you don’t. But we’ve been looking only at the rights of the author and the heirs. The book buyers also have rights, including the right to do as they wish with their property, but subject to limitations imposed in order to respect the rights of heirs and authors.)
    Puts a different spin on it, eh? But still, you could argue for perpetual copyright, and I would respect that position although I might not vote for it.
    Anyway, hope you have a great L.A. day!

  27. I think it’s notable that Edgar Rice Burroughs recognized the long-term value of his brand and arranged to protect the Burroughs intellectual property for his heirs. I believe that if he were alive today, he would be at the forefront of the argument in favor of changing copyright laws worldwide.
    One thing which astonishes and bemuses me the most is that some people feel exceptions should be made if a brand is particularly successful. What?!? Let me get this straight…if a brand makes money, it should be offered more protection than a brand that doesn’t? That seems awfully hypocritical–not to mention convenient–to me.
    Somehow, I suspect that most wealthy and successful artists do not agree with current copyright law and would very much like to see it changed. If I’ve said it once, I’ve said it a thousand times: you want to give away the rights to your name and work for the dubious concept of “public good”, feel free! But don’t tell me what I can or cannot do with my life’s work.
    Seems very basic to me, and I’m still at a loss why so many others cannot seem to understand that anything I create is mine and should not belong to “the people” unless I say so.
    Greedy? Hardly. I mean, would it be okay with you if I came and took your house after a certain number of years? All for the public good, of course. Bear in mind, we’re not talking eminent domain here. We’re going to take it for the “good of the people”–maybe you’ve got a great view, or we think a civic center would be just dandy right where your property happens to be sitting. Whatever the reason, enough time has passed so we’re taking over.
    Sound crazy? I don’t see why my intellectual property, the fruits of my imagination and hard work, should be any less valuable than real property, and the idea that it can be simply taken should bother all artists–no matter how successful they are!

  28. If you can bequeath your real property and your personal property to your heirs in perpetuity, why can’t you bequeath your intellectual property to them in perpetuity also?

  29. Dan is free to buy Mark Twain from the bookstore like the rest of us, if he want’s a hard copy from the Running Press. For free he can get individual ebooks. But why should he?

  30. The works that are owned by people and do not exist in the public domain as of this moment will likely stay that way. We can not apply some utopian standard to the situation, but we have to deal with the facts on the ground as they are now. The original lawmakers decided that 1923 was the bright dividing line. Anything before that is in the public domain and anything after that is subject to argument and calculation and litigation.
    The beauty of our system is that the two competing sides come together and one side is judged to win the argument. Which means that Congress will probably extend copyright protection again so that we can’t make our own versions of Steamboat Willie.
    The nice thing about electronic distribution is that it is a sector of the market that is growing. And it’s open 24 hours a day with inventory that is fairly easy to manage. Last quarter, Lone Star Press brought in almost $5,000 off of 50 books and comics. A big chunk of that went to the freelancers and the charity that I rep books for and the rest is getting turned back into more e-books. I’m working on making it snowball with the public domain books.

  31. The U.S. Constitution prohibits perpetual copyright. It asserts there is a difference between physical property and intellectual property.
    (No one has to agree with this, it’s just what the law says at present.)
    There is a website that shows the arguments for and against perpetual copyright:
    Basically, copyright is an act of the state to grant a monopoly to an author who creates a book. So the state gives this right, it does not naturally exist. (Again, you can disagree if you see it differently.) But the Constitution thinks it’s best for the Public Domain to have everybody able to use intellectual creations after a while rather than to have a lot of (state created) monopolies tying everybody up.
    It’s interesting to note that Bill Gates and Warren Buffet, the two most financially successful Americans of our times, both say they were lucky to have such success, and won’t pass (the vast majority of) their money along to their heirs (who were just lucky to be born in their family, they say), and are at present giving away their wealth to areas where it will do the most Public Good.
    It’s a balance. There is the author and his heirs, but there is the Public Good. The law tries to be fair and just to both, but exceptions can be made by Congress on a case by case basis to extend the copyright term, depending on circumstances.
    Anyway, I hope everybody has a great L.A. day, because during great L.A. days a lot of great writing is done that earns a lot of great money — and does wonders for the Public Good!

  32. As one with credits in media law as part of my journalism degree and a law cerificate on top of that, it’s life and 75 years. Nothing in the Consitution says you have the right to others work, and you damn sure won’t print it since that costs. And your Vonnage ad with it sucks. Shows how high art can be corrupted with tacky advertising. You must be proud.


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