R. E. Howard and H. P. Lovecraft Copyrights, thoughts?

[nikolai]

This has been bubbling around the net for a while. I want to bring it up here.

In the EU; Robert E. Howard (died 1936) enters the public domain next year (2006). H. P. Lovecraft (died 1937) becomes public domain the year after (2007). This means the Conan and Cthulhu stories, at least so far as material published in their lifetimes. This is big news so far as fantasy and RPGs go. However, (at least some) material is still going to be under copyright in the US. The situation there is complex to say the least.

How does this effect ENWorld? ENWorld is run from the UK and hosted in Florida, if I remember correctly. You'll need rights to use various IP in the US, but not in the EU. These are rights which - I think - Mongoose, Chaosium, and Wizards currently have. Take a Lovecraftian creature: Nightgaunts. In the US, you'd need the rights to stat these for d20, which is creating a derivative work, but you wouldn't in the EU. Could we create and post our own Lovecraft and Howard derived d20 game on the boards (legal in EU, illegal in US)? Are the mods going to make a ruling?

I'm still trying to work this all out in my head - and what it means. I'm not claiming all the above is 100% factually correct at the moment. I just want to raise the issue. I'm still trying to find my way here, and could do with other people's opinions.

 

[Hand of Evil]

I would think a wait and see attitude would be prudent, just too many options and too far away and if anyone has a finger and profit from it there will be a legal issue.

 

[msd]

In the US, you'd need the rights to stat these for d20, which is creating a derivative work, but you wouldn't in the EU. Could we create and post our own Lovecraft and Howard derived d20 game on the boards (legal in EU, illegal in US)? Are the mods going to make a ruling?.

<disclaimer>I'm not a copyright attorney. I just finished a term in IP in law school, but really...not a copyright lawyer and could be way off on this one</disclaimer>

Assuming the work is public domain in the EU and not in the US...

It seems like the problem is not really the derivative work element so much as the right of distribution element (one of the five basic rights protected by copyright - right to copy, right to adapt into derivative works, right to distribute, right to publicly display, right to publicly perform).

In other words, for those posters in the US, there is an argument that when you create a derivative work based on copyrighted material and upload that piece of work to the Internet, you are infringing the right of distribution.

That ENWorld happens to be run from the UK is probably beside the point. They maintain a server in the United States and (playing the devil's advocate or the plaintiff's attorney in this instance) are secondarily liable for infringement to the extent that they allow infringing works to be posted on their site.

As a practical matter, and depending on the nature of the derivative work, the author might be protected by the fair use doctrine.

Again, I could easily be off and I know that there are a couple of IP attorneys who post on these boards so I will defer to them on the matter, but as a general answer to your question, I would be much more concerned about distribution than the mere creation of derivative works.

See Napster.

-Matt

 

[WayneLigon]

I would be very, very surprised indeed if those entered the public domain any time in the near future. http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm seems to indicate that the term would be 95 years (I'm assuming that whatever entity holds those rights has long since done the renewal process, and look for that to go up.

I don't even pretend to understand international treaty law and such, but I'm pretty sure the EU is signatory to the various treaties that govern such things and so would abide by that limit as well?

In the case of the Mythos, the entire thing would probably be moot. Lovecraft didn't have a problem with any of his buddies using mythos names, places, etc, and I've seen many, many modern horror writers use them as well.

 

[Gez]

Anything younger than Mickey Mouse will never become public domain in the USA, at least until the Walt Disney company goes bankrupt. :\

 

[Michael Morris]

Gez is right. Hollywood has enough power in Washington to assure that anything remotely saleable never enters the public domain. What was a system to prevent publishers from ripping off writers has become a system for publishers to make far more money off a product then they ever could before.