Solo Media Forums

[Anonymous]

This story is not so much about writing on your Palm as it is about reading other peoples' writing on your Palm. Nonetheless, it could have interesting repercussions for readers and writers.

For several years, Blackmask.com has been providing repackaged public domain ebooks--many from Project Gutenberg, others from other sources--in a variety of immediately useful or convertible formats. PDF, iSilo, Rocket Book, even plain HTML, all can be had there. Among these books have been many of the original pulp novels of The Shadow and Doc Savage--two of the all-time great pulp adventure novels, which can be seen as partly responsible for both comic book superheroes and modern men's-adventure novels like Mack Bolan. As Blackmask.com was itself named after a pulp magazine, it's not surprising that Blackmask's webmaster, David Moynihan, would want to include them among his list of public domain titles.

Except there was just one little rub...The Shadow and Doc Savage really aren't in the public domain.

People have been assuming they were, of course--largely due to their appearing on a public domain website with titles that really were in the public domain. Even BoingBoing.com originally assumed that they were public domain when it covered this story, and had to correct itself. It didn't help matters that their renewal notices couldn't be found in the copyright office's on-line repository until recently, or that they're under "periodicals" instead of "books." And even after he knew they were still in copyright, David Moynihan continued posting them--as well as making bound print versions available.

And now Condé Nast, the owner of The Shadow and Doc Savage copyrights, is suing over it.

The odd thing is, apparently Condé Nast didn't really want to sue. I only have Moynihan's own statement on the matter to go on, of course; apparently Condé Nast hasn't released any statements yet and I'm not a journalist to be able to call them up and ask for one (they'd probably just say they couldn't discuss impending litigation anyway). Moynihan says they offered what would seem to be a very good settlement deal: "[R]emove the ebooks, stop printing, no harm done. Just walk away." In short, he could keep all the profits he had made on them up to this point, as long as he didn't make anymore.

Moynihan turned them down. Not only did he turn them down, but he did it (again, judging from his own statement) in a confrontational, in-your-face sort of way. "[T]hough the attorney for Condé 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.'"

His statement listed several reasons for this rejection. Moynihan seems to feel a moral imperative to make these books available as Condé Nast hasn't been making any effort to do so, and feels that Condé Nast has "unclean hands" for not compensating Lester Dent (the author of most of the Doc Savage books) when the 1970s Doc Savage movie was made. He's on a crusade, and wants his day in court.

But that's not all Moynihan wants. He's also responded (or pre-empted, as he did it before the deadline for settlement passed and the lawsuit could begin) with an interesting tactic: filing for transfer of the copyrights under the legal doctrine of Adverse Possession.

Adverse Possession, commonly known as "squatter's rights" in the vernacular, is defined by the Concise Law Encyclopedia as a "Method of acquiring real property under certain conditions by possession for a statutory period." As Wikipedia puts it, "Squatter's rights embodies the idea that if one property owner neglects property and fails to use it, and a second person starts to tend and use the property, then after a certain period of time the first person's claim to the property is lost and ownership transfers to the second person, who is actually using the property."

This doctrine usually applies to real estate: places that people can live or maintain. However, Moynihan claims there is also precedent for applying it to books: "[T]here 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." I was not able to find any further information about these cases in a cursory online search.

Thus, what Moynihan seems to be saying is that, since Condé Nast hasn't been making any use of The Shadow and Doc Savage properties over the last few years, and he has, and they haven't ever done anything to stop him, he should thus be declared the legal copyright owner by default. It's a bold tactic, though I'm not sure how well it will work. It seems to smack of over-cleverness, and judges tend not to be amused by cleverness. The fact that the precedents Moynihan cites are fifty years old might not help matters, either; copyright code has been updated several times since then. Of course, I'm not a lawyer, so what do I know?

Regular posters over at alt.pulp are not impressed; they have a few choice words for Moynihan, calling him a "pirate" who "deserves whatever he gets." (Ed Hulse points out, "And according to Will Murray, who represents Dent's estate, Lester's widow was compensated for the movie. But the estate hasn't received a dime in royalties from Mr. blackmask.")

The prospects don't look very bright to my admittedly non-lawyer eyes. If getting copyrights transferred by Adverse Possession was as simple as that, it seems to me we shouldn't have the big Orphaned Works problem on which Congress recently solicited comments; we'd just say "let them publish it and if nobody pops up to complain, it's theirs." If Moynihan were to win this case and set a more modern precedent, what might the repercussions for copyright be? Up to this point, it has been largely assumed that copyright is copyright, no matter how lax the enforcement; copyright owners did not have to be as diligent about policing their property as trademark owners. What would the publishing industry look like if that were to change? What would this mean to the copyright-holders of out-of-print books, even those not considered "orphaned works"? That's got to be on the mind of any judge who has to decide the case.

All things considered, I'm not optimistic about Blackmask's continued operation. Even in the rare event that Moynihan wins, the legal fees associated with the win will surely be staggering--and enough money is at stake on Condé Nast's side and principle on Moynihan's that I don't think either side is going to want to do less than fight it to the highest court that will hear the challenge. I don't think Blackmask.com is very long for this world.

And that's a real pity. Of all the public domain book sites I've examined, Blackmask is by far the most usable. It has a great interface, makes its books available in a wide variety of raw or preconverted formats so they can be downloaded into your PDA or e-reader in seconds, and even collects its titles onto CD and DVD-ROM. It's much more user-friendly than Gutenberg has ever been, and is a real asset to the public-domain e-text community. If it has to close due to legal issues, it will be sorely missed.

There's about another month to go until the lawsuit has its first hearing. If, as I pessimistically predict, Blackmask's days are indeed numbered, it would probably be a good idea to grab anything you ever thought you might want to grab from the site, to order whatever items Moynihan still has available before they're gone for good.

What will be the eventual fate of Condé Nast's pulp fiction properties and David Moynihan's Blackmask.com website? Not even the Shadow knows.

[Tibbarerew]

This is very interesting information to me. I've talked about Doc Savage a lot since Jeff and I started Solo Media, I'm a huge fan. You mention that Doc Savage and The Shadow are to thank for superhero and adventure comics in general, but I often wonder if people realize how much of an influence Doc Savage had on two of the biggest comicbook superheroes of all time. For instance, long before Superman had a fortress of solitude, Doc Savage had one. Long before Bruce Wayne used his vast fortune to fight crime, Doc Savage was doing the same. Even the concept of the Justice League can be traced to Doc's team. In short it's a true shame that such an important part of pulp, comicbook and action/adventure history has sat unused and negelected. My only hope is that something good comes out of this. Not that I excpect miracles, but it would be nice to see an official collection of Doc Savage stories in any format.
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Josh Curry,

Defender of the Known Universe

[Anonymous]

Oh, there are lots and lots of parallels, more than just the "Fortress of Solitude". Clark Savage Jr, Clark Kent. Man of Bronze, Man of Steel. Margot Lane the reporter in The Shadow, Lois Lane the reporter in Superman (who was later played by Margot Kidder, though of course that was strictly coincidental; so is the fact that Ron Ely played both Doc Savage (in the movie) and an older Superman (from an Infinite Earths episode of the Superboy TV series). And while we're fictio-baconizing, Ely also played Tarzan (in the TV series), who, along with Savage, was the subject of one of Philip Jose Farmer's Wold Newton fictitious biographies). And 3 or 4 reboots ago, Superman was as much a superscientist as Doc Savage in addition to his other similarities.

Oh, and Batman wasn't even the first Shadow ripoff-cum-homage (to whom he is closer in tone than Doc Savage as you compared him), as he was preceded by to the pulp anti-hero The Spider.

Back in those days, IP wasn't nearly as "tight" and wholesale filing off of serial numbers was apparently an accepted practice. Indeed, writing unauthorized sequels and pastiches without changing the names was apparently common practice around the end of the 19th century; consider the War of the Worlds sequel pastiche Edison's Conquest of Mars, by Garret P. Serviss, whereby the world's genius scientists (including Thomas Edison and Lord Kelvin) get together and build spaceships to go conquer Mars in return for their invading us.

[Tibbarerew]

Oh I know, I was just scratching the surface of similarities. One similarity I didn't mention, which has always stuck in my mind, was the scene in Batman Forever where Bruce sits down in his chair behind his desk at Wayne Enterprises, pushes a button and is whisked away to the batcave through a tube. Doc Savage had a very similar system for getting to the fortress of solitude. It's amazing to me how it's not just the broad strokes but also some of the fine details that seem to have been lifted from the classic serials.

There's actually a story that pre-dates all of these that is strickingly similar to Superman, and I'd feel remiss if I didn't mention it. The novel Gladiator, published in 1930 is about a man given great strength by his scientist father and his search for his place in the world. The theme of the book is very similar that of early Shuster and Siegel Superman stories.
_________________
Josh Curry,

Defender of the Known Universe