A few months ago, I came across a documentary on the S.S. Edmund Fitzgerald that I hadn’t seen (how I came to be watching it is a blog in and of itself). I became fascinated by the differing viewpoints on why she went down and realized it might be fodder for a book approached from an angle no one had taken (at least to my knowledge, since a lot of what was in this one documentary was new to me). I started combing my local library and inter-library system, and watching eBay for more books and images.
Now that I’m actually setting words in order, it’s setting in. Not writer’s block–at least, not “writer’s block” in the usual sense. I’m getting copyright cringe. Big Fitz is the highest-profile subject I’ve considered taking on. Does the Fitz enjoy the same sort of not-until-they’re-100-years-dead protection that humans do? Or does an analysis of a very public disaster fall under “fair use”? A “press photo” has an implied permission to journalists writing articles in their papers about the subject at roughly the time of the photo’s creation–does this permission extend to a book written on the subject several decades later? How can you use a “photographer (not to mention people in the picture) unknown” picture with no provenance?
There are two kinds of answers one gets to copyright questions: the incredibly generalized ones that always come with the disclaimer that you should seek competent legal advice for specific answers, and the “competent legal advice,” which changes depending on how pricey a lawyer you can afford–which is nonexistent, if you’re so broke you’re painting your own cover art. Copyright courts are littered with the little guys who may technically have been in the right, but couldn’t afford to defend against the high-priced onslaught of big-shot corporate lawyers.
Anyone who’s paid attention to copyright knows about that little song that first appeared as “Good Morning to You” in an 1892 songbook that was used in an otherwise forgettable movie from a studio that was eventually taken over by Warner Brothers. WB raked in millions in royalties for decades until a few years ago, when somebody finally got the right lawyer to convince a judge that WB only owned the rights to their particular arrangement of “Happy Birthday,” and not the original song. It was simply less painful to roll over for the 800-lb gorilla that cough up the money to contest WB’s interpretation of what exactly they owned. (The Federal Government has caught on to the technique, and uses it to shake down small businesses for unjust taxes and illegal interpretations of various business codes.)
And you may recall a show back in the eighties called “Greatest American Hero” (probably best remembered for its theme song, “Believe it or Not”). DC Comics went after the show for infringing on their “Superman” character. Well, let’s see now: both characters had a secret identity that involved flying, exhibiting superhuman strength, and wearing a costume that included a cape, a chest emblem, and the color red. One costume was dominantly blue with red and yellow trim, a big “S” on the chest, and a long red cape. The other was red, with an emblem that did not resemble a letter of the Roman alphabet, and a short black cape. One was an alien that derived his powers from Earth’s sun and kept a civilian identity as a reporter. The other was an ordinary human school teacher that got a super-powered suit from a friend who was living with aliens (and promptly lost the instruction manual for it). Sound like infringement? The judge read a few comic books of one and watched the pilot episode of the other, and concluded one was not based on the other. But that was a case where the lawyers were fairly well matched, so it was judged on its merits.
Another issue came to light with a themed bar serving drinks named after Gandalf, Frodo, Bilbo, and the like. Now these characters were all in The Hobbit, and in some countries, The Hobbit has entered the public domain. But New Line Cinema still went after them for infringing their live-action Lord of the Rings trilogy (there was at least one animated Lord of the Rings preceding the New Line version) despite not having any proof that it was their movie the bar was based on (if memory serves, the bar’s theming actually pre-dated the release of the movie). Again, it’s the party who can hire the best lawyer that wins, not the party with the best legal position.
Then there are the websites that automatically claim copyright ownership (or indefinite non-revocable license) of any image/design/posting uploaded to them. I don’t know that Netscape took advantage of it back in the day (they claimed copyright of everything that went through their email, which would have made them owner of practically everything that was written between about 1995-2003), but I think there have been a couple of sites that have been known to screen user-uploaded images for celebrity faces, which they then turn around and sell. The actual photographer can’t sell the photos commercially, because they didn’t get model releases; but a corporation can sell those same images with impunity just by adding one teensy little line to their user policy. The 800-lb gorilla strikes again.
So what’s a little ol’ nobody supposed to do? Cross her fingers and hope that nobody with a lawyer in his pocket thinks that there’s been an infringement? Ironically, hope that the book doesn’t get a lot of attention (like Dan Brown got from the authors of Holy Blood, Holy Grail for taking the idea of Jesus having blood descendants)? Or abandon the project altogether because even the most ridiculous, baseless claim of infringement can’t be defended against?