Saturday, August 28, 2010

''Go placidly amid the lawsuits and the countersuits...'' -- Famous "Desiderata" poem said to be without copyright, anyone can reproduce it as poster, CD, book


by staff writers

August 31, 2010

''Go placidly amid the lawsuits and the countersuits...''

Famous "Desiderata" poem said to be without copyright, anyone can
reproduce it as poster, CD, book

NEW YORK -- The "Desiderata" was never copyrighted. Who knew? Who cares?

Anyways, be cheerful and feel free to sell it as a poster, t-shirt or
book, courtesy of the genius of Max Ehrmann (1872-1945).

Yes, according to new files unearthed in the ongoing legal battles for
ownership of the "Desiderata" (which in Latin means "things which we
desire, such as money,
profits and fame"), Ehrmann's iconic prose poem, which was written in
1927 but did not gain traction until the 1960s, there never was no
copyright attached to the text after WWII,
and anyone can reproduce it for whatever purpose they want.

Copyright concerns are no longer an issue, according to Jo Kline
Cebuhar, an Iowa attorney who quotes the ''Desiderata'' in a new book
titled, ''So Grows the Tree: Creating an Ethical Will.''

According to Cebuhar, Ehrmann allowed a friend during World War II –
U.S. Army psychiatrist Merrill Moore – to hand out more than 10,000
copies of the poem to his patients, free of charge and without any
stamp of the copyright Ehrmann had rightfully secured in 1927. In
1976, a U.S. Court of Appeals ruled that Ehrmann had basically
forfeited the copyright by allowing Moore to freely distribute
''Desiderata'' without copyright notations, according to Mark
Bennett, writing recently in the Terre Haute Tribune Star.

Iowa attorney Cebuhar is even more forthright, saying: "It's
absolutely public domain."

One good example of the legal issues involved with the prose poem is the case of Les Crane's 1971 recording, on a 45rpm platform, of the Desiderata. It was so popular that is reached #8 on the Billboard charts. It had a great influence on mainstream society and became a counterculture anthem of sorts, and in particular introducing many to the culture of prose poetry and spoken word recording. The recording was considered inspirational and positive during a somewhat negative time. It won him a Grammy, in fact. However....

....although Crane thought the poem was in the public domain when it was recorded, the rights allegedly in fact belonged to the family of author Max Ehrmann, and royalties were distributed accordingly.

A parody of Desiderata by National Lampoon on their comedy album, Radio Dinner (1972) also went on to fame via the Dr. Demento and Howard Stern radio shows. Called Deteriorata and voiced by Norman Rose, the parody declared to listeners: "You are a fluke of the universe. You have no right to be here. And whether you can hear it or not, the universe is laughing behind your back". [Melissa Manchester, then a little-known session singer, performed the gospel-tinged background vocals.]

When asked about his 1971 recording during an interview by the Los Angeles Times in 1987, Crane replied, "I can't listen to it now without gagging." He admitted to being more fond of the National Lampoon satire.

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Is Desiderata in the Public Domain or Copyrighted?

Max Ehrmann obtained a federal copyright for Desiderata in 1927 (No. 962402). [2] It was also printed in a collection of his poems published in 1948. The copyright was bequeathed to his widow, Bertha, who renewed the copyright in 1954. At her death in 1962, she bequeathed the copyright to her nephew, Richmond Wight. Wight assigned the copyright (for an undisclosed fee) to Crescendo Publishing Co. in 1971.

The poem was published in the August, 1971 issue of Success Unlimited magazine, and Robert L. Bell, the owner of Crescendo Publishing Co., filed a copyright infringement suit against the publisher, Combined Registry Co. [3]

The defense argued that the copyright had been forfeited and abandoned. Three instances of distribution were alleged to support forfeiture:

(1) In December 1933, Ehrmann used Desiderata as part of a Christmas greeting to his friends.

(2) In 1942, Ehrmann corresponded with Merrill Moore, a U.S. Army psychiatrist serving during World War II. Moore told Ehrmann that he had distributed an estimated 1,000 copies of Desiderata over the years while he was in civilian practice in Boston . Letters attest to the fact that Ehrmann gave permission for Moore to distribute copies of the poem to soldiers as part of their treatment. As late as 1944, Moore confirmed to Ehrmann that he continued to use the poem in his work in the South Pacific. [3]

After Ehrmann's death in 1945, reports of his correspondence with Moore appeared in several publications, each of which included the text of Desiderata without a copyright notice.

(3) As noted above, about 200 copies of Desiderata were distributed by Rev. Kates to his congregation around 1959. (The court stated that this occurred in 1957, but most other accounts report that it happened in 1959.)

The Copyright Act requires copyright notice on materials that one seeks to have protected. [17 U.S.C. Section 10] Forfeiture occurs when the copyright holder authorizes general publication without the correct notice.

The 1933 Christmas cards were not a "general publication" that would divest the copyright holder of his rights. Nor did the distribution by Rev. Kates or the later copies, since there was no evidence of authorization by the copyright holder.

However, the court concluded that the correspondence between Moore and Ehrmann was credible evidence of a general publication authorized by the copyright holder. "Permission to use the work was given gratuitously," and nowhere was a copyright or copyright notice mentioned. Ehrmann had therefore forfeited his right to have the copyright protected. [2]

The federal district court found in favor of the defendants, the 7th Circuit Court of Appeals affirmed that decision, and the U.S. Supreme Court declined to hear the case. [See citations below]

However, Mr. Bell has been successful in pursuing his copyright claim in other jurisdictions of the United States. One can argue that Mr. Ehrmann tried to protect his copyright, as evidenced by a copy of the poem published by the Indiana Publishing Co. that clearly bears the 1927 copyright notice.

It seems that the courts cannot agree on this issue. Thus, whether or not this poem is in the public domain depends upon your point of view and your place of residence.

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