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Suppose a work was originally published in France (and in French) , in 1940. Suppose the author (Georges Macron) died in 1980. Suppose it was translated into English, and published in English in 1955. and the translator (Francis Farmer) died in 1995. Suppose the original French publisher went out of business in 1963, and there was no single successor company. Suppose the English-language publisher went out of business in 1975, and again there is no single successor company.

Suppose that John Reaper has written a new book in English. This new book reproduces many whole pages (say 70) of the 1955 translation, plus 15 full,-page illustration from that edition. John Reaper has approached the publishers of more recent editions of the translation (all of them from before 1990). John has approached the grand children of macron, and the heirs of Farmer (who had no children). He has looked through the records of the copyright offices in France, the UK, and the US, and has written to everyone named in those records as holding copyright in the book or its translation, or as being an agent of any such owner.

No one has admitted to holding the rights to the 1955 translation, or to knowing who does hold those rights.

Assume that the new book is an expansion and revision of the original book, not a commentary on or analysis of the original, and is not likely to qualify as a fair use of the original.

[Note that these details of publication dates and death dates are given to make it clear that the book is still under copyright in various countries, and to make it clear what sort of efforts John has gone to while trying tro secure permission.]

Can John Reaper lawfully publish his new book with a note:

Pages {numbers} are taken from the 1955 edition of {title} a translation of {french title} by Georges Macron. The holder of copyright in that work could not be found after diligent search. If anyone holds those rights or knows who does, please contact me at {address} and proper arrangements will be made.

If John does this, can he be successfully sued for copyright infringement of the 1955 translation or of the 1940 original?

John wants to publish in the US, the UK, and France and other EU countries.

This is based on comments to Can I print scans of a book's pages in my book? in this stack.

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    The title and text don't match. Inability to find an author does not invalidate copyright. Other factors about length of work, translation or age are irrelevant to that question. Death is tangential to the question of inability to locate an author. Notice that your answer "no" is wrong w.r.t. the title.
    – user6726
    Jan 7, 2023 at 18:46
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    @user6726 re-formulated the question - it's basically "can you re-publish an orphaned work?"
    – Trish
    Jan 7, 2023 at 20:10
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    I'd be more worried about enforcing copyright on my work. If you had to sue, it doesn't look good that you might not be entitled to copyrights at all.
    – user608
    Jan 8, 2023 at 2:12
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    It doesn't matter whether you find the owner. It matters whether the owner finds you. Jan 8, 2023 at 6:12
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    The situation described is called in the field an "orphan work."
    – ohwilleke
    Jan 8, 2023 at 18:47

1 Answer 1

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No, John may not lawfully publish such a book in such a way

What John wants to do is not lawful. It would infringe on the copyright on both the 1940 original, and on the 1955 translation. Both of those are still in copyright under the laws of France, the UK, and the US. Someone owns those copyrights: some person or business or other entity.

If the owner has no legal heirs, in most jurisdictions the property escheats to the government (in the US to the state government). In the case of a company, its assets will be sold or handed over to some entity. But they will not become ownerless, any more than real estate will become ownerless when the owner dies or the owning company is dissolved.

It is possible that the owner does not realize that s/he owns these rights. But if John publishes his book, then owner might then realize the rights that s/he holds. The owner could demand payment, or sue for damages. Under US law the damages could include any economic loss that the owner has incurred plus any profits that John or his publisher have made. John and his publisher would both be liable for these damages. As a result, no publisher is likely to be willing to publish John's book. If John self-publishers, he incurs the risk of such demands and suit.

In some countries (such as the UK) there are legal procedures fore dealing with such "orphan works". In those countries one can register with a government agency, and obtain permission to use the work after a search has revealed no owner, paying a rate set by law. But there is no such provision in the US. There, John must either not publish, or gamble that no owner will appear and make demands he cannot afford to meet.

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    @Trish, yes it might. But the original hypothesis was designed to largely exclude fair use, which I have made more explicit in the edited question. Jan 7, 2023 at 22:35
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    Strictly speaking, the US does have 17 USC 108(h). The problem is, that provision is useless for the described case, and for most orphan works, and also it's a very narrow exception anyway. But there are some very old orphan works to which it does apply.
    – Kevin
    Jan 8, 2023 at 1:30
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    What do US states do with intellectual property that escheats to them? As I understand it, real or personal property gets sold, but from this answer it sounds like IP just hangs around getting in the way.
    – Cadence
    Jan 8, 2023 at 3:06
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    @Cadence That would be a good question of its own. I think that often it just hangs around, but I know of at least one case where it was sold to a person who wanted to publish the work involved. I don't know details, but I suspect that person persuaded the appropriate state official to take this action, rather than it being offered by the state to whoever wanted it. Jan 8, 2023 at 18:18
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    Trish, if fair use applies then it doesn’t matter whether the owner can be found or not, so it is irrelevant to the question.
    – gnasher729
    Jan 8, 2023 at 18:23

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