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JEAN SHEPHERD–in the public domain

C. public domain

A major question in the world of Jean Shepherd’s radio broadcasts (in NYC 1955-4/1/1977 plus a couple of years before that in Cincinnati and Philadelphia) is whether they have a copyright–whether they are in the public domain.  If they are in the public domain, anyone can sell the audios without fear, and anyone can transcribe the audios (as I do) and publish them without fear of legal problems. Although people have been distributing Shep’s audios since before he died, the tricky and subtle issue had never been resolved beyond some peoples’ doubts as far as I know.

Library of Congress

“What Is Not Protected by Copyright? Several categories of material are generally not eligible for federal copyright protection. These include among others: • works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)”

[I believe that what’s important here is “improvisational

speeches or performances”]

Here’s what the Stanford University Library website declares

(http://fairuse.stanford.edu/overview/public-domain/welcome):

Welcome to the Public Domain

The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. An important wrinkle to understand about public domain material is that, while each work belongs to the public, collections of public domain works may be protected by copyright. If, for example, someone has collected public domain images in a book or on a website, the collection as a whole may be protectible even though individual images are not. You are free to copy and use individual images but copying and distributing the complete collection may infringe what is known as the “collective works” copyright. Collections of public domain material will be protected if the person who created it has used creativity in the choices and organization of the public domain material. This usually involves some unique selection process, for example, a poetry scholar compiling a book — The Greatest Poems of e.e. cummings.

This would apply to those who sell audios of Shep’s radio programs (as does Max Schmid: http://www.sheptapes.com), my extensive transcript excerpts in my EYF!,  and my own recent manuscripts consisting of my edited transcripts and commentaries on Shep’s Army stories, my transcripts of his travel narratives, and much more. Max good photo

SHEP'S.ARMY.Cover_Final

Without these uses of Shepherd’s broadcasts, I’d fear that his main claim to creative immortality would be gone with the wind into the ether. (Shep is acknowledged four times at the beginning of A Christmas Story but almost nobody reads opening film titles.)

♦  ♦  

The above was preface.

Below is a condensed narrative regarding my current adventures.

For years I’ve been searching for the answer as to whether Shepherd’s improvised broadcasts are (and can be proven to be) in the public domain. All evidence–the U. S. Copyright website, the lack of legal action against their use, massive commercial sales of thousands of his radio audios (and many other old time radio audios)–all indicate that they are being sold without legal hassle and are thus probably in the public domain.

Publishers of my Shep’s Army wanted a definitive answer to prevent possible legal problems. Through the help of Nick Mantis (Creator of the documentary-in-progress on Shep’s life) I requested an answer from a copyright lawyer. I got a good but not 100% definitive response–so my publisher took part of my royalty rate to secure safety from possible lawsuit.

On the colophon page of Shep’s Army, it states:

“Published by arrangement with the Estate of Jean Shepherd, Irwin Zwilling, Executor.”

public domain artwork

A couple of years ago I completed another manuscript of Shep’s stories but my publisher has not responded to my questioning: ya gonna publish or not publish? To avoid the inevitable hassles of the entire  process from query letters to editorial and accounting conflicts, I’d nearly decided not to attempt more efforts to get my Jean Shepherd Kid Stories published.kid stories cover 1

Photo of kids courtesy of

Steve Glazer and Bill Ek.

I ‘d decided to simply publish them on this blog as I’ve done with Shep’s travel narratives.

(Exchanging publication-stress for pure blog-bliss.)

Allison, my wife, suggested that I give print publication one more try (I’d indicated to her that a book one can hold in one’s hand is what both Shep and I would have preferred.) As I have no agent (I tried and couldn’t get one years ago for my EYF!–ain’t that a drag? But then, remember how Leigh had to act as agent herself and hunt for a publisher for Jean’s The Ferrari in the Bedroom.).

I knew I’d have to deal with the public domain question again before I could get a contract for the kid stories, I emailed Irwin Zwilling, Shep’s friend/accountant, who was willed all his creative rights. Mr. Zwilling responded that he’d tried to resolve this issue for years and responded:

“Yes, it is our understanding that his radio shows are

public domain.”

OH, LIFE CAN BE SWEET!

Thus, the audios are available. And my editing of them and using them in my two so-far-unpublished books of transcripts–kid stories and travel narratives–are protected for me according to the Stanford U. description: “Collections of public domain material will be protected if the person who created it has used creativity in the choices and organization of the public domain material. This usually involves some unique selection process,…” (My editing for smoothness, continuity, and organization–retaining the feel of Shepherd talking–and especially in the kid stories, to form a “novel-like” whole.)

I await the next stage of the process.

____________________________________________________________

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3 Comments

  1. Steve says:

    This is a very complicated area of the law. I understand the reluctance of Mr. Zwilling — not a lawyer — to provide a definitive response. Given the current state of the law — especially regarding federal protection for pre-1972 sound recordings — there may be no definitive answer (especially going forward). Indeed, the U.S. Copyright Office and some congressional committees have been considering changes to federal law to amend the Copyright Act to bring pre-1972 sound recordings within the prevailing copyright regime. There are also several pending cases in federal and state courts regarding the issues. I have not surveyed the very latest actions in Congress or recent case law (including in New York).

    In any event, even in the absence of current federal statutory copyright protection for pre-1972 sound recordings — which is arguably the present state of the law — courts have held that the different laws of EACH of the 50 states may be applicable to such recordings, as well as possibly federal common law.

    As an initial primer on the issues (but by no means a final answer), I direct you to a scholarly piece written several years ago by Tim Brooks:

    http://www.recordingcopyright.org/pdf/AMuscop_fnl.pdf

    Finally, Mr. Zwilling’s response may perhaps trigger an area of the law known as “estoppel and laches,” which could possibly preclude at least him from seeking damages and/or an injunction for any arguable infringements. But that is way beyond the scope of this short post, and would not necessarily preclude lawsuits being filed by others.

    • ebbergmann says:

      Steve, thank you very much for your thoughts and reference on this. I’ve copied/pasted the Tim Brooks article and, over the next days, I’ll read it. Then take much more time to see if I can understand it in any useful way. Cheers and Excelsior!

      • Steve says:

        As a practical matter, the fact that (presumably) neither “Shep’s Army” nor the numerous collections of WOR recordings have ever elicited a “cease and desist” letter is telling of the likelihood of anyone ever actually litigating the issue. Nevertheless, I completely understand the reluctance of some publishers to accept that as conclusive.

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