Copyright status of OTR scripts?

[dustinj]

My theater company is thinking of doing an evening of "live OTR." We want to use the original scripts--or, failing that, a transcription of the broadcasts. We're looking at a bunch, some of which we'd use as is and some of which we're thinking of adapting to make them sound a little less antiquated. The hope is we can record the live evening and make it available as a download.

My understanding from researching around is that while the OTR broadcasts are in the public domain or at least widely thought to be, the scripts may not be. So I'm wondering if anyone here has ever tried to license or clear the rights for the performance or adaptation of these old scripts. Or, conversely, if you've just gone ahead and produced the scripts without seeking permission.

Two things to keep in mind: one, we've avoided looking at anything with obviously copyrighted characters like Batman or The Shadow; and two, we're charging admission. I've read here that some believe performing a work for free to be "fair use." I don't think that's accurate, but in any case, we're not performing for free.

Any thoughts?

[alexachipman]

I'm fairly certain that it needs to be pre-1926 or 1929 in order to really be out of copyw.

A lot of us tend to write shows in the "OTR Style" like I did the Adventures of Captain Kendrick in, or the Dixie St. show at Pendant.

[dustinj]

Alexa, I know that a lot of groups that are into this tend to write their own OTR-ish material. If my group did that, we'd just be creating a "sound-alike" to avoid a royalty payment. To me that's not enough of a reason to bother.

Did your group ever attempt to license any of the old scripts?

[alexachipman]

No I spend enough of my time dealing with museums and libraries for my own history books

[Doug Wood]

I'd love to get an answer to this, but it is more likely that there will be multiple conflicting answers. There is plenty of information about the legal status of published (printed) texts such as books and magazines, but the scholarship on the public domain status broadcast works is scattered and shaky.

Most folks who trade openly in otr recordings insist that since they can find no record of copyright renewal on file that the recordings can be freely sold or traded. But that ignores the distinction between the copyright on the source material versus the copyright on the production.

Why is a broadcast of an otr episode from the 1040s freely traded when the printed Raymond Chandler story on which it was based is still under copyright protection? Presumably, the right to adapt the story were conveyed to the show producers for limited use as a radio play, but later re-use and sales could not have been contemplated.

Public domain, under US law at least, is based mostly on a combination of time and registration paperwork. Since most otr broadcasts were produced with the intention of single use (or short term use) what constitutes "publication" in broadcasting? Date of first airing? Hard copies of scripts were prepared for the use of cast and crew, but were not made commercially available, so what is the current status of such scripts? If an unpublished book manuscript from the 1940s were found to be found today, it would have copyright protection starting now as if it were a brand new work - so what about otr scripts that were publicly "aired" but not not "printed"?

[dustinj]

Doug, thanks for responding. I know what you mean about "multiple conflicting answers"--the research I did before I posted my request here provided a wide variety of possible scenarios. But they all seemed like guesses to me, hence my posting here to see if any group had actually tried to license any of the old scripts.

You're certainly right about OTR traders ignoring the issue of underlying rights. On the other hand, they may have good reason to. Despite the fact that OTR recordings have been openly traded, given away, etc. for years, I can't find a case where the owner of underlying rights to an OTR recording--be it the script or whatever the script was based upon--has ever asserted any rights. I found threats from a company that sells OTR attempting to assert ownership of some of the recordings, but it didn't appear to me that the company had any legal standing to do so. BTW, I'm discounting cases of companies asserting rights to obviously trademarked characters, since that falls outside the scope of my question.

My suspicion so far is that if the scripts are technically protected, they're probably "orphaned works"--i.e. the owners either don't care to assert their rights or (more likely) their status is so murky and convoluted that no one is entirely sure who owns what. And there's certainly the argument that any ownership was abandoned years ago, given the openness with which the recordings are given away and the lack of any action to stop that.

Still, I'd love to find a producer out there that actually has practical experience with this.

(Oh, and FYI: broadcast of a work is specifically defined in the law as NOT being publication. I think it's clear that the vast bulk of scripts would count as unpublished works.)

[Doug Wood]

	Quote:	dustinj
	My suspicion so far is that if the scripts are technically protected, they're probably "orphaned works"--i.e. the owners either don't care to assert their rights or (more likely) their status is so murky and convoluted that no one is entirely sure who owns what.

In practical terms, I'd love to re-do as live theatre some otr that was locally produced in the 1950s. The station which originated the series is still around, sort of. They have changed addresses and call letters and owners several times, but the path is still traceable. No one there now seems to know or care about this 60 year old program. The writer/producer and corporate sponsor are no longer in the area, but they might have heirs. I could probably get away with just doing it, but I'm too gun-shy about legal surprises.

Might try pitching them on the idea of doing it as a charity event for which they can give away tickets as an on-air promo in exchange for some kind of written "permission". At least then it would show "good faith" as far as rights issues, and might boost the attendance as well.

[emruf7]

In the United States, most OTR scripts were never registered for copyright but, because they were unpublished manuscripts, they were protected under perpetual Common Law Copyright (no renewal required). As of January 1, 1978, all of these were automatically given Federal copyright protection. So, technically, they're virtually ALL under copyright (for the life of the author-plus-fifty-years or for even longer terms).

The problem is that the copyrights are unevenly enforced. For example, Conde Nast, which owns The Shadow and Doc Savage, will send you a cease-and-desist message if you post its scripts online, according to this page:

http://www.genericradio.com/article.php?key=copyright

And author Norman Corwin, still alive and kicking at age 98, insists on payment for performances, according to this page:

http://www.normancorwin.com/rights.html

But other scripts seem to get posted and performed with no objections from anyone, either because there's no author or estate to object or because the copyright holder doesn't know or care about such things.

There are groups that regularly perform the old scripts and even charge audiences to attend. One high-profile example is at Fairfield University. Earlier this year, they were scheduled to do Superman and the Lone Ranger at their usual venue, the Regina A. Quick Center for the Arts. Here's a press release:

http://www.fairfield.edu/pr_0108radio.html

You might try to contact someone there -- probably Daniel Smith of New Haven, CT, who usually directs these productions -- to find out how they get away with it.

[dustinj]

Thanks for posting that, emruf7.

I had seen the Generic Radio site, but not Corwin's, which I found fascinating. $350 royalty for a single performance in a theatre? That's absurd. Industry standard is $60-$75 per performance. I'd imagine he doesn't get a lot of productions.

I agree with you about the uneven enforcement of copyright, which would sort of support my theory that the scripts are technically protected but that most are probably "orphaned works." It's very possible that many of these radio shows and their scripts were created as works-for-hire for entities that no longer exist, which would make the emergence of a *true* owner a long shot at best. I wonder if the ownership on literary works-for-hire reverts back to the creator if the employer goes out of business.

I'll write to the guy at Fairfield U...although I tend to think he can get away with more than I could, being attached to an educational institution and all.

[emruf7]

Here are a few other groups that perform OTR recreations and charge admission:

1. The Great Plains Radio Theatre Project in Sioux City, IA:

http://www.greatplainsradio.org

2. The WTCT Players in Topeka, KS:

http://www.topekacivictheatre.com/showing/wtct.php

3. The Philco Radio Players in Atlanta, GA:

http://www.philcoradioplayers.com

My guess -- and it's just a guess -- is that they're all in technical violation of the law but the money involved and the impact on the commercial value of the script is so tiny that nobody bothers them. Probably the worst that happens is that they get a cease-and-desist letter. As long as they cease-and-desist -- and write back to confirm that they are ceasing-and-desisting -- no legal action gets taken.