To: All Msg #30, 12 Apr 94 21:50:00 Subject: Letter regarding Gulf Breeze * Forwarded from
From: Don Allen
To: All Msg #30, 12 Apr 94 21:50:00
Subject: Letter regarding Gulf Breeze
* Forwarded from "INFO.PARANET"
* Originally by Michael Corbin
* Originally to All
* Originally dated 25 Mar 1994, 22:36
Barbara Becker of the UFO Research Network in St. Louis, Missouri, has asked me
to post a letter to ParaNet which was also sent to Vicki Cooper of UFO
Magazine concerning the copyright issues and the photos of the Gulf Breeze
UFO. ParaNet applauds UFO Magazine for re-opening the Gulf Breeze case in the
pages of the magazine. Barbara Becker raises some interesting questions about
who the real authors of the "Jane" and "Bill" photos may be.
February 9, 1994
To the Editor:
Since you have decided to re-open the Gulf Breeze case in the pages
of UFO Magazine there is a question I would like to throw out for
your readers to ponder and Ed and Frances Walters to answer. How
did the Walters legally use the "Believer Bill" and "Jane" photos
and letters in THE GULF BREEZE SIGHTINGS when they did not hold
the copyright...or do they?
The Bill and Jane photos were submitted to Duane Cook as Editor of
the Gulf Breeze Sentinel. While neither photographer gave
explicit permission in the accompanying letters for use,
submission alone, is construed to mean the Sentinel could print
the photos. Title 17 of the United States Code - Copyright Act
of 1976, Section 201 (c) specifically says that in a collective
work, such as a newspaper, the copyright vests initially with the
author of the contribution. In the absence of the transfer of
copyright, the owner of the collection, in this case the Sentinel
and Cook, "is presumed to have acquired only the privilege of
reproducing and distributing the contribution as part of that
particular collective work..." Simply said, Cook had the right to
print and distribute those issues containing the Bill and Jane
photos (and letters) and any revision of, or any work in the same
series. Did Cook have the right to turn them over to Ed Walters?
Section 202 states that the ownership of a copyright is
distinctly different from the ownership of the material object in
which the work is embodied. "Transfer of ownership of any
material object, including the copy...in which the work is first
fixed, does not of itself convey any rights in the copyrighted
work embodied in the object;..." This means that Cook probably
could give Walters the actual photos and letters, since they were
in his possession, but Walters could not use their content.
Do Bill and Jane own the copyright, afterall, the letters
and photos were submitted under a pseudonymn? Yes. Section 201
(a) states that the copyright vests initially with the author of
the work. And Section 302 (c) states that the copyright on any
pseudonymous work "endures for a term of seventy-five years from
the year of its first publication, or a term of one hundred years
from the year of its creation, whichever expires first." So
there is no doubt that whoever Bill and Jane are they could hold
the copyright for a very long time.
Did Bill and Jane have to register their copyright prior to the
publication of the photos in the Sentinel for it to be valid?
No. Section 404 (a) states that a "separate contribution to a
collective work may bear its own notice of copyright...however a
single notice applicable to the collective work as a whole is
sufficient to satisfy the requirements of Sections 401 through
403: Copyright Notice, Deposit and Registration. When Cook
published the Bill and Jane photos they became registered under
this "blanket" copyright clause.
Could Bill and Jane have transferred their copyright to Ed
and Frances Walters? Yes, however, Section 204 (a) states that
the transfer must be in writing and signed by the copyright
holder or his authorized agent. Do the Walters have such a
document? Will they produce a written transfer of copyright
notarized prior to 1990, the date of publication of their book?
Could the Walters invoke the "Fair Use" clause? Fair Use allows
certain materials to be used without permission of the copyright
holder. It generally applies to works in the public interest such
as news reports, commentaries, criticisms, or works used in
research or education. A famous case will illustrate "fair use".
In Time, Inc., v Bernard Geis Associates, (293 F. Supp. 130.),
Time being the copyright holder of the Zapruder film sued Geiss
in U.S. District Court for copyright infringement...and lost.
Geiss claimed that the artistic rendering of 22 frames of the
Zapruder film used in a book fell under the Fair Use clause of
the code. The court agreed and ruled that the renderings, the
only pictorial representations in the book, supported the theory
presented and made it easier to understand. The renderings were
an integral part of the book and the book was in the public
interest, subsequently there was no copyright infringement.
Does this apply to THE GULF BREEZE SIGHTINGS? Yes. While the
Walters might argue that their book was in the public interest
the validity of their claims did not rest on the Bill and Jane
photos and letters. Walters used 38 of his own photos. He had a
foreword written by Dr. Bruce Maccabee, an introduction by Budd
Hopkins and endorsements by Walt Andrus, Bob Oeschler, Robert
Nathan, Dr. Mark Carlatto, Vincent DiPeitro, Joe Greco and Dr.
Brian O'Leary. If that isn't enough he had the "authentication"
of his photographs by Harro Limbo of the Polaroid Corporation and
Richard Vandenberg. If the preceeding list of experts isn't
enough to support Walters' claims then what do two covertly
submitted photos and letters substantiate? Nothing. In the
Geiss case, the pictures were used to clarify a theory and were
integral to the work as a whole. The Bill and Jane photos were
not an integral part of THE GULF BREEZE SIGHTINGS. It seems
doubtful that the Walters could claim Fair Use as a defense for
using copyrighted materials.
Additionally, in Fair Use cases where the copyright holder is
unknown, the person wishing to use the copyrighted materials will
give notice, usually in a newspaper, announcing the intention to
use the work. This gives the copyright holder a chance to come
foreword. Since we know that both "Bill" and "Jane" read the
Sentinel, this would have been a reasonable way to proceed. Did
Ed Walters place a notice in the Sentinel announcing his
intentions to write a book using the Bill and Jane photos and
letters? Wouldn't you think Bill and Jane would have wanted
some of the royalties from the use of their photos?
Finally, in Inter-City Press, Inc. v Craig Siegfried (172 F.
Supp. 37.) the court affirmed that, "A picture or drawing, which
is an author's own production, cannot be copied, and
acknowledgment of the authorship of an article or drawing does
not exculpate the copier of infringement when it is done without
the consent of the owner of the copyrighted material." In other
words, giving Bill and Jane credit for the photos and letters
does not release Walters from copyright infringement.
What does all this mean? It means that for Ed and Frances
Walters to have used the Bill and Jane photos and letters, they
would need a written transfer agreement to avoid copyright
infringement...or it could mean that Ed Walters is the author of
the Bill and Jane photos and letters, and he was never worried
about infringing on the copyright because he owns it.
UFO RESEARCH NETWORK
St. Louis, Mo. U.S.A.
E-Mail Fredric L. Rice / The Skeptic Tank