OMNI Magazine as orphaned work

omni-magBoingBoing has an interesting feature-length piece by Glenn Fleishman about OMNI Magazine and who owns the rights to it. Prompted by an article for Vice’s Motherboard discussing the rediscovery of a treasure-trove of material from the defunct late-70s-to-late-90s SF magazine, Fleishman asks and answers the question of who actually owns the publication rights to all that material. The journey he goes through tracking down the answer is actually a lot more interesting than the answer itself.

Created by the founder of Penthouse Magazine, and essentially bankrolled by Penthouse’s profits (OMNI ran for 18 years racking up a total loss of $80 million), OMNI published works by many great SF writers, some quite well-known. (For example, Terry Bisson’s oft-recirculated vignette “They’re Made Out of Meat” first saw print in OMNI in 1990.)

The answer to who owns those rights is rather prosaic, in fact—and one of the chief artifacts of the difference between the pre-e world of then and the e-publishing world of now. For the stories, feature articles, and artwork that appeared in the magazine, it’s the authors and artists who created the works. As did most magazines in those bygone days, OMNI only contracted for “first North American serial rights”—the right to be the only place that work appeared in print for a limited time. After that, the creator got the rights back, and could then anthologize the work or sell it to any other publication who didn’t mind printing left-overs. (I remember back in the day, this was given as one of the main reasons you didn’t want to post your work to the Internet before trying to sell it—nobody would want it after it had already appeared, because they couldn’t get first rights.)

Now, of course, things are different; publications request perpetual non-exclusive rights to host works, though fiction writers still generally sell time- or medium-limited rights still.

But one really interesting thing is that, if the owners of the rest of OMNI’s rights (all the work-for-hire in-house stuff, like departmental columns, which could have gone to some creditor of the magazine’s bankrupt creator without their even being aware of it) were to be found and wanted to reissue a complete digital archive of all the magazine’s works, they apparently could do that without having to renegotiate with the authors of the works.

There’s an argument that entire scanned issues of Omni could be reproduced in toto. The National Geographic Society was sued when it released a CD-ROM set starting in 1997 that featured complete issues of its magazine without negotiating new rights with freelancers. It wended its way to the Supreme Court, which refused to hear the case, which was decided in an appeals court in 2007. An "electronic replica" of a printed work apparently requires no additional rights even when contracts call for it. Interesting.

But due to the tangled-up history of the ownership of OMNI, nobody’s really quite sure who does own those rights. The magazine as a whole is, thus, an orphaned work at only 15 years gone. Even the earliest of the work-for-hire material is under copyright until 2075. A part of my childhood, and the childhoods of who knows how many others of my generation, is as inaccessible in this digital age as if it were on the moon, and won’t be free until I’m 102 years old. And this is why we need better ways of dealing with the orphaned works issue.

4 Comments on OMNI Magazine as orphaned work

  1. Chris, you exaggerate. It’s as inaccessible as a good library. Or a second-hand magazine store. Or, you know, eBay ( Just because you can’t download it for free immediately upon thinking about it doesn’t mean it’s “as inaccessible in this digital age as if it were on the moon.”

    Look, I’m for copyright reform as well, but it never does one’s cause any good to stretch the truth in service of that cause. I was a little too busy to comment the other day on the articles hand-wringing about how copyright makes works disappear, but I thought the hyperbolic use of the word “disappear” was terribly disingenuous. I could use the same statistics as in that article to suggest that as soon as less-desired works (that is, those whose exploitation while they are still covered by copyright would be less profitable) they become much more downloaded again. They don’t disappear — it’s just that apparently nobody was willing to pay money for them, but once they emerge from the copyright shadow (which, I agree, is too long) they get massively downloaded again, just as the works from 1850 are being.

    My point, and I do have one, is that if you start bemoaning that something you can easily buy on eBay should be given away for free just because it was a part of your childhood — you begin to sound spoiled.

  2. I assure you that many writers of nonfiction magazine articles continue to work under contracts that give them copyright ownership of their own work.

  3. Shrug. Just going by what the original article said, which I paraphrased instead of quoting because I’d quoted enough already:

    It would have been generally unusual for freelance writers of fiction or non-fiction to sign away anything more. Today, many publications (including my own The Magazine) ask for perpetual non-exclusive rights to republish art, photographs, and non-fiction articles. Some ask for perpetual exclusive rights, too. Fiction writers typically still sign away only time- or medium-limited rights, though more expansive than in the old days.

    (The broad, non-exclusive rights are a bandage for the electronic age. If you ask for limited rights and then, say, change the name of your publication, sell it, or produce an app version for a new platform, you would have to negotiate new rights with every party to port the archives. Exclusive rights are somewhat offensive and unreasonable because few publications pay enough for that value.)

  4. Chris, as soon as I read the following, I thought of you. Sounds like exciting news, no?

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