it was commissioned by a childrens theatre run by the Soviet government

remembering when i was at a library tech conference in october and an archives guy was like “i would love to get sued because at least then i might learn who took the photograph”

anyway i would argue translation is fair use insofar as “the copyright holder” is not engaged or interested in producing or licencing a translation of their own but consult your lawyer on that

@Lady Arguably the theatre or any successors, or possibly just an orphaned work? (Peter Pan, the play, is my favorite "what is even going on?" children's story for licensing weirdness. Woe betide anyone trying to do something with it in the UK, or the US until recently.)

@aschmitz it’s very interesting because every article about Golan v. Holder explicitly talks about Peter and the Wolf no longer being public domain, but none of them identify any party who actually has the ability or motivation to levy a copyright infringement lawsuit

presumably there is someone, but it just goes to show in a sense how people think about these things (wrongly, imo)

@Lady I suspect that in general we just haven't really figured out what to do with "orphaned works" in general: they're theoretically copyright even though nobody actually controls that right. (You can of course argue about whether that means they actually are or not: either way the effect is the same as if they are not, but it is hard if not impossible to be sure that they actually aren't controlled.)

@aschmitz this is definitely true (us not knowing how to deal with orphaned works), but an essential component is how it intersects with fair use: if there is no known copyright holder, it's going to be very hard to claim that a nonprofit transformative use of a work is unfairly infringing (i am not a lawyer and this is a layman’s opinion)

the major liability is in the case that a known copyright holder emerges and decides to pursue their copyright claims: then anything you might have produced using the work might cease to be a fair use and might start being infringing. this is an undue risk for any large-scale operation, probably, but likely not for something hobbyist and indie (this is a personal opinion and not legal advice)

@aschmitz in general i think people think about copyright in terms of what big companies with massive budgets and national distribution can do, but the answers are often quite different for smaller folks with smaller ambitions

@aschmitz and not always favouring the corporations!

@Lady Maaaybe? My understanding has always been that fair use is extremely "I know it when I see it", but also that it doesn't really depend on what the copyright holder is doing. Perhaps it should? Distributing abandonware has mostly gone okay, outside of some notable exceptions (see: Nintendo), I suppose, though I'm not sure if people are calling that fair use so much as fair game.

@aschmitz fair use can only be decided on a case-by-case basis, so if there is nobody suing, it is Schrödinger’s fair use

my point is just that the calculus of a use being unclearly fair-or-infringing weighs in the favour of people who are not investing a lot of money into that use and maybe only doing it for a couple years

@Lady Sure, I can agree with that. Now we just need a bunch of indie Peter and the Wolf games. At least they come with premade leitmotifs.

@aschmitz it does depend on what a copyright holder is doing tho. a key component of fair use is whether it is infringing on profits of the copyright holder, so, for example, as i understand it, printing a braille version of a text or making an audiobook for blind readers is fair use if the copyright holder isn't producing one of their own, but isn't fair use if they are. the same logic probably applies to nonprofit translations, altho i'm not familiar with the case law

@aschmitz (you can make this argument because the people who read braille mostly aren’t the market demographic for non-braille books)

@Lady To an extent, yeah. I suspect it also even depends on the reason it's not available: you're probably more likely to annoy Disney if you were releasing copies (or even translations of) films in the Disney Vault while Disney refused to sell them, than if you distribute Song of the South (which they still refuse to distribute, but more for policy reasons than purely monetary ones). I suppose the "we pulled these from availability for tax/residuals reasons" shows are a weird in-between, too.

@aschmitz disney might try to claim reputation damages, e·g if the thing makes them look bad or the reproduction is of poor quality, and i don’t know but would guess those are valid things a court might take into consideration (but also things which probably don’t apply if nobody knows who the copyright holder of the work is)