The Copyright Status of Robert E. Howard’s Works

If you want to understand just how complicated it is to determine whether or not a work is still copyrighted in the United States, check out Paul Herman’s analysis of the copyright status of works by Robert E. Howard who died in 1936 but had many works published posthumously (in some cases, several decades after his death).

The United States Copyright Office

All Copyright Office records prior to 1978 are currently available only in hardcopy at the Copyright Office Search Room in Washington DC. No online access is avialable. Over the course of several visits, a review has been made of the US Copyright Office records with regard to REH works first published prior to 1964, looking for original registrations and renewal registrations, to see if a valid copyright could still exist. A review of notices within the actual original publications has not been completed yet, and as stated earlier, if notice is flawed, the work could still be injected into the PD, regardless of having proper registration and renewal.

The result of this review was that a large number of REH works subject to the rules of the 1909 Act either did not have original registrations, or no renewal registrations were filed where required. These works are therefore by law in the PD. A listing of these PD works is provided below.

Renewal Problems

An additional legal matter, only select classes of people and entities can file for the renewals. The courts have almost always said that if the renewal is made by an incorrect entity, the renewal is invalid, and the work PD. About the only exception is when the only error is leaving a joint author off the renewal, or if it was impossible for a person to know they were a rightful renewer (such as with an illegitimate child with no knowledge of the parent). Failure to file when the time was right is no excuse, nor is ignorance of the law.

A number of REH works had renewals filed by an incorrect person or entity. Because of this, more works are also PD. Of special interest, the renewals filed with regard to Weird Tales are of interest, and it may be that while at first blush they correct party did not file the renewals, it may be that it can be shown that they in fact were. The current owners are working hard on this issue. Accordingly, I have removed those works from this list, until some sort of resolution is reached. Regardless, a fair portion of the WT works are still PD, for failure to file any renewals at all. Further, due to no registrations and/or no renewals, a great amount of the poetry that REH sold or otherwise had published during his lifetime is PD.

Got that? In some cases, whether or not a work is in the public domain in the United States comes down to technicalities in how the registration renewal was filed (or not filed). The cost of tracking that sort of information down is one of the main reasons there are so many orphan works — works that no one is actively publishing or exploiting, but that which remain out of print because of the difficulties in establishing whether or not they are truly in the public domain.

On the other hand, the European Union has created a special law that allows works in the public domain to gain additional copyright periods,

In March, 2007, Paradox published a very small print run of a volume titled THE LAST OF THE TRUNK OCH BREV I URVAL. This was published in Sweden, with a print run of eleven copies. As with the publication of a tiny print run of a couple volumes of material by the previous owners in 2002, this was an attempt to take advantage of a special copyright law. In this case, in the European Union, there is a rule regarding works that have gone PD without ever being published. That rule states that if the owner of such a work gets that work into print first in the European Union, they will be granted a 25-year “publication right”, which for most purposes is the same as a copyright. This new book by Paradox attempts to include all the previous unpublished works of REH, prose, poetry and letters, and appears to meet all requirements. Hence, most or all of the works listed below as PD in the US that were unpublished in the US as of 1/1/2006 are likely back under copyright in most of Europe, for the next 25 years.

But at least they’ll enter the public domain again in 2031. As Herman notes, some of Howard’s work — remember, written in or before 1936 — will not enter the public domain in the United States until 2072! Assuming, of course, there are no further copyright extensions.

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