Copyright for a Famous Author Who Died More Than a Century Ago

[Odysseus_2010]

Hello,

I have a question regarding the famous writer Oscar Wilde who died 1900. The company CMG claims copyright to his name, signature, likeliness, photos and so on. But how is this possible since Oscar Wilde died 1900 and now its 2010. The right of publicity extends the copyright up to 100 years after a persons death. So how can it be that there is a company claiming rights after 110 years? His published works are undoubtedly in public domain. But some time ago CMG contacted a print-on-demand-service, declared they have the copyright to use the name Oscar Wilde and demanded that all works using his name are deleted. Now there are all kinds of merchandise articles quoting Oscar Wilde but without naming the author of the quote. This behaviour seems quite bizarre and I wonder if this is illegal what CMG is doing?
I can only think that they have the copyright for longer then 10 years and are so used to have it that they forgot to count the years until it expires ;-)
Is there anything one can do about this claim that other people are not allowed to use the name of Oscar Wilde after 110 years?

Thanks in advance for any comments.

[LawResearcherMissy]

I can only think that they have the copyright for longer then 10 years and are so used to have it that they forgot to count the years until it expires ;-)

You seem to have copyright confused with patents. Patents expire after 10 years.

Copyright continues for considerably longer.

For works published prior to January 1, 1978, copyright endured for up to 95 years, depending upon when it was initially secured and whether it was renewed. (Some changes to copyright law applied retroactively, giving many works a 95 to 120 year term.)

Yes, his actual works are in the public domain. That's not what CMG is handling.

CMG is handling the rights to use his name and likeness. These rights are owned by his estate (his family), who have trademarked his signature, name, and likeness. The right to use one's name and likeness does not expire when one's copyrights do.

[Odysseus_2010]

Thank you for your reply. No, I was not speaking about patents. It is a bit difficult for me to find the proper special terms so I try to make it clearer after I did some research for the right words.

What I referred to is called "Right of Publicity", seems to me a kind of special copyright. In most countries in the world and states in the USA the right of publicity is granted for 70 years after a persons death. The state of Indiana is said to have the most far reaching right of publicity statutes granting 100 years. So how does it come that even by the most strict law to be found the name of Oscar Wilde (and everything else that is protected by the rights of publicity) is still protected 2010 because he is dead for 110 years now?

CMG claims to have the rights and prevents actively other people from using the name of Oscar Wilde on their merchandising products. All published works are in the public domain. So I see all kinds of merchandise with Oscar Wilde quotes but the name of the author was removed.
The "10 years" I spoke of in my first post referred to the fact that the right of publicity of Oscar Wildes name must have been expired 10 years ago.

So my question is: is there any base for the actions of CMG? Or can they just do what they are pleased to because an ordinary person can't effort going into court in the case CMG prevents your products from being published? I could not found anything about "Oscar Wilde" being a tredemark. They do not use the TM and they clearly seem to refer to the right of publicity on their website.

[KeyWestDan]

The rights to publicity passed to his estate and thus his family, who apparently assigned them to CMG.

Your question is more like asking if those rights are valid and nobody here can tell you that. You would have to do considerable research.

Only 12 states recognize this right after death. TN of course is one. The term is usually 100 years though there are ways to extend it. There is also an argument for it under the federal Lanham Act.

In 1979 the California Supreme Court said any rights to a name or image ended at death (Bela Lugosi case) and could not be passed on like a tangible copyright.

CA then passed a law to change this and now has a 70 year right to publicity, what lawyers call the "Vampire Act".

You would have to see, for example, if this act is retroactive. Most laws can't be retroactive (criminal laws certainly can't be), but who knows.

If you were serious, you would have to research English law and see if those rights could be passed on. Oscar was homosexual, so if he didn't have children or a wife, I would wonder if English law allows such rights to be transferred sideways through a family. Usually legal rights can only be passed on to specific relatives. Also, there has to be a time period too.

You can see where this is going to go, and if you got sued, you might have a defense, but that would be after spending many many thousands of dollars for a property that has VERY limited marketability.

One approach would be to reearch this and if the law is on your side, explain that to CMG and ask for a very low cost licensing agreement.

[Dr.Sam]

CMG is handling the rights to use his name and likeness. These rights are owned by his estate (his family), who have trademarked his signature, name, and likeness. The right to use one's name and likeness does not expire when one's copyrights do.

Same issue, same question.


The OP gave a fair statement of the situation. Oscar Wilde died 110 years ago. Any basis I'm aware of for claiming rights in the author's name extends no longer than 100 years. So what is the legal basis for claiming exclusive rights to an author's name? What is the duration of those rights? What is the place of "fair use" in using the author's name to correctly attribute the source of a quote? For example, if I have a Ford automobile for sale "fair use" says I can advertise it as a Ford automobile.

BTW I have no relationship with the OP other than we both use the same service and I'm searching for answers as well.

[LawResearcherMissy]

So what is the legal basis for claiming exclusive rights to an author's name?

The fact that his estate had his name and likeness trademarked, and then contracted with CMG to handle defending that trademark. I noted that his name and likeness have been trademarked by his estate in my first answer to the OP.

"Fair Use" does not apply to trademarks. If the owner of the trademark doesn't want you to use it, they can (and often do) sue.

[Dr.Sam]

"Fair Use" does not apply to trademarks. If the owner of the trademark doesn't want you to use it, they can (and often do) sue.

Has there been a significant change in the law in regard to "fair use" of trademarks. I thought that KP PERMANENT MAKE-UP, INC. v. LASTING IMPRESSION I, INC. discussed the burden of proof in relation to the defense of "fair use" in a trademark case. It looks like defense is statutory, covered by U.S. Code TITLE 15 > CHAPTER 22 > SUBCHAPTER III > § 1115. Registration on principal register as evidence of exclusive right to use mark; defenses. And these Ninth Circuit Jury Instructions describe "Fair Use" in Trademark.
http://207.41.19.15/web/sdocuments.n...5?OpenDocument So what is the basis for stating that "fair use" does not apply to trademarks?

[KeyWestDan]

Obviously there is fair use for trademarks, though it is usually only an issue on product or vendor review sites. Using it in a site meta-tags or buying the trademark for Google ads would not be fair use and there is case law on that.

Trademark fair use certainly does not apply to the situation being discussed in this thread.

I have also never heard of fair use of a trademark when it comes to a person's name or right to publicity. Not what most people think of this right when they think of trademarks.

[Dr.Sam]

Well, I don't see any basis for any company to say you can't properly attribute the authorship of a public domain poem, even if it is on a commercial product. Even if something is trademarked using those words in their ordinary sense, not in reference to a product, is not infringement.

[Libran]

You can't copyright a name. Either you're not telling us the whole story or their claim is bogus.