Swords drawn over Conan copyright

New Zealand public domain law threatened

A local website has removed recordings of the Conan novels under the threat of legal action from the US, despite the material being in the public domain in New Zealand.

New Zealand-based audio enthusiast website BrokenSea Audio ran into trouble with the copyright holders of Robert E. Howard characters and stories, primarily the stories about Conan the Barbarian, created by the Texan writer in the 1930s.

New Zealand BrokenSea founder Paul Mannering and his team received an email from Conan Properties International's lawyers in August 2008. In the email, the holders of the trademarks and copyrights of Robert E. Howard characters and stories incorrectly claimed BrokenSea was selling audio books of Robert E. Howard's work, he says.

The website received a second email in February this year ordering it to stop all publication of copyrighted material by Robert E. Howard, including audio books, audio dramas and graphic images, he says.

But under New Zealand copyright law, works are in the public domain 50 years after the year of the author's death, he says. Howard committed suicide in 1936, aged 30.

In between these two emails, BrokenSea had accepted a distribution deal with the copyright holders, he says.

“We heard no more from them until November 2008 [when] an email from Paradox Entertainment — a subsidiary holding company of CPI as far as we are aware — invited us to have a license to distribute our content officially,” says Mannering. “We accepted this offer, and Paradox confirmed there was no charge for this licence.”

Mannering and the BrokenSea committee believed they now had a solution to the problem, but they never received the paper work to make the agreement binding, he says.

He didn’t hear from CPI again until late last month when the letter from CPI's lawyers advised that the website was a commercial operation because it provided content to internet users outside of New Zealand and because it had a .com domain, he says.

The lawyers stated that BrokenSea had to immediately cease distributing any material they owned trademark and copyright on, or they would pursue their legal rights in all countries where this material was not in the public domain, he says.

BrokenSea Audio creates podcast and audio dramas, which users can download for free. The site specialises in fantasy, sci-fi, horror, drama, comedy and audio versions of films, says Mannering. The two-year-old website has an organising committee of six people; two in Christchurch and four in the US.

Mannering says the claim that BrokenSea was a commercial operation was “ridiculous” and that it was “extremely odd” for the lawyers to suddenly claim they thought the website was not accessible outside of New Zealand.

But BrokenSea decided to comply with the demands. All Conan audio dramas and audio books produced by its volunteers have been removed from the website, and a major project — a production of Howard's only full length Conan novel, Hour Of The Dragon, which Mannering had adapted into a full cast audio drama script — has been cancelled.

“I was very aware that the incoming amendments to New Zealand's copyright law would mean I [could] lose all internet access as Xtra holds a monopoly on my local exchange in Christchurch,” he says.

He describes the amendments to the New Zealand copyright law, whereby any accusation of downloading copyrighted material requires the ISP account to be cancelled, as “madness”. It places fan-groups such as BrokenSea at considerable risk, he says. “The lack of evidence required before an ISP must action any such accusation is disturbing and could easily mean the end of groups such as ours,” he says.

Mannering contacted the vice president of branding at Paradox Entertainment, Leslie Buhler, asking what circumstances had changed to make them do a 360 degree turn on their previous offer — which BrokenSea had accepted.

Buhler's reply said that CPI had sold the audio book rights to Random House. “It occurred to us that if this deal was made after BrokenSea was offered those rights at no charge, then our free product would be a competition to Random House's commercial publications,” says Mannering.

The website has adapted public domain works by authors such as HP Lovecraft and Edgar Allan Poe into audio drama scripts or audio books, and has not been challenged on those, he says.

“Our Planet of The Apes audio series is in production of a second season, and our ongoing Doctor Who audio series is also very popular. We claim no rights to any of those characters, but we produce and release this material entirely for free by the kind grace of the copyright holders,” he says. “We believe strongly that releasing such material in a not-for-profit manner helps celebrate and encourage interest and therefore revenue...for those copyright holders.”

The Conan works produced on the site were very popular, and the support and outcry from fans of Robert E. Howard has been strong, he says.

BrokenSea has also produced a number of authorised audio dramas and audio books, including a radio play by Norman Spinrad; a one-off audio adaption of the XKCD comic mini-series "Choices" and Sonny Whitelaw's novel The Rhesus Factor. Short stories by science fiction writer and internet icon Cory Doctrow are in development for release later this year as full cast audio dramas, he says.

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