TeleRead: Bring the E-Books Home

Lawsuit: Conde Nast & crew vs. Blackmask–over Doc Savage and The Shadow

By David Rothman

Doc Savage and The Shadow are free via Blackmask–and just the ticket for some young readers. But will 506 Doc and Shadow titles go AWOL from David Moynihan’s site? Turns out that Conde Nast/Advance Magazine Publishers is suing David over his use of such items.

Blackmask is one of my favorite public domain sites–far, far more than a store alone–and it would be a major loss if the suit led to a shutdown. That’s something to ponder before you buy a Shadow DVD. “The case goes before a magistrate in Greenbelt, MD on May 8,” David’s blogged. “After that, things might happen to this site, and smartset.net. We’ll see.”

Let’s hope that David and Conde Nast can somehow resolve this amicably without a court battle, especially at a higher legal level. I’m speculating that a bad precedent might hurt not only Blackmask but also the public domain–I’d welcome thoughts from lawyers on both sides of the issue. Below, I’ll reproduce David’s post discussing the suit, including the orphan works aspects. If Blackmask vanishes, at least his commentary will survive online.

Article Name: Hey, I’m getting sued!

Article:

The good people at Conde Nast/Advance Magazine Publishers have finally decided to take care of the last Doc Savage and Shadow holdout, because they’ve become aware of the crisis in boys books, attained new respect for the graphic novels market scored a movie deal.

Now, given that Variety is an Elsevier publication, Conde Nast could perhaps be excused for not understanding the basic realities of the film business. So, they don’t grasp that the plethora of comic book and video-game based flicks on our screens these days is the result not of Hollywood’s respect for modern-day representations of the Jungian hero archetype, but rather of studio executive’s bets on success in producing content for a pre-existing market. CN also don’t get that destroying said pre-existing market is unlikely to produce much success at the box office, if the film even gets greenlighted.

Maybe someone needs to do a 50-word feature on the topic for Lucky.

Whatever, in CN’s defense, they’ve got a new law firm, and their attorney was mostly professional–apart from his choice of Christmas Eve as an appropriate night to drop bombs, of course. They even sent me rewewal notices on all 506 Doc and Shadow titles.

The deal offered was, remove the ebooks, stop printing, no harm done. Just walk away. And of course I’ve got the green books and the pink books and the yellow books, as well as other black books…

Needless to say, I turned them down. Cold. The deadline for settlement was yesterday (April 7), and we did not settle.

Couple reasons for this:

One, the boys’ books issue. I mean, come on, 25% of books published to zero in two decade. This is attracting attention finally, but there is no author for young men quite like Dent.

Secondly, though the attorney for Conde Nast did keep stressing “you’re running a business! you’re running a business! For years!” He didn’t answer when I said “of course; in a manner open, notorious, hostile and continuous.”

See, there’s this common law tradition of Adverse Possession, from the days when peasants would seize a vacant field and hold it, till it, etc., owning the property after some period of time. This principle got touched on during the orphan works comment period, but wasn’t part of the orphan works recommendations.

However, there were at least at few times, back in the ’50s and ’60s, involving something called the Olympia Press, where adversely-possessed books were allowed registration, most famously in the case of the Ginger Man. So I just took a shot for recordation of transfer of copyright via operation of law: Adverse Possession under section 205 of the U.S. Copyright Code, and the matter, one month later, has not been decided.

Hey, life is short, even if that last sentence wasn’t.

The third and final reason I’m taking the risk of trial here has to do with the plaintiff’s unclean hands. No, I’m not talking about the big publishing tradition of committing fraud, conspiracy and restraint by falsely asserting rights, threatening dire consequences, etc.–a hobby still extant at former CN subsidiary Random House.

Essentially, whatever happens in the coming months, I will at least find out why it is that Lester Dent controlled Doc Savage’s radio in the ’30s, but somehow when that awful film got made, CN alone was compensated.

The case goes before a magistrated in Greenbelt, MD on May 8. After that, things might happen to this site, and smartset.net. We’ll see.

Happy Spring, and, OK, there is a place to donate to my legal defense fund.

Add Date: 08-04-2006