Reply #145: Mails didn't have to know anything.

[Tansy_Gold]

As the owner of the copyright, he -- or his heirs -- has ever right to pursue this. Silence in not pursuing it while he lived doesn't constitute permission.

Churchill had a limited edition of 150 prints made; he sold them for about $100 each. We have no idea where the rest of them went. It's quite possible that neither Thomas Mails nor his children ever knew anything about these copies until Mr. Prentup (if I remember his name correctly) saw the Mails original in a book.

The Mails estate is the wronged party in this event. They do not have to prove anything, except that Mails held the copyright and it's been infringed. They do not have to prove that Mails knew of the copy at any time, nor do they have to prove that he didn't give permission.

Churchill, as the alleged infringer, must either prove he didn't copy it and that is was an original and non-derivative work (except he's already admitted it was a copy, so that defense is pretty much eliminated) or that he had permission to use Mails' original as the source for the derivative work. As an academic, Churchill would know the basics of copyright law and would probably know the finer points as well. That's part of the job of a compiler/editor of an anthology, and it's part of the work the compiler does in conjunction with the publisher. Churchill is going to have a very difficult time convincing anyone he doesn't know copyright law.