Glenn Fleishman on the legendary science and science fiction magazine's murky proprietorship.
Omni Magazine was the single greatest publication of all time. I dare you to refute that. As a kid, it drove my conception of what the future would be, between its nonfiction articles (sometimes a little fanciful) about inventions and innovations underway and to come, and the fantastic array of science fiction and fantasy stories. By describing the future, Omni shaped it.
Motherboard, part of Vice Media, revealed yesterday that the production archives of Omni are in a warehouse in New Jersey, owned by financier Jeremy Frommer. He bought the contents of a storage locker last year that contained a trove of photos and papers owned by Penthouse mogul Bob Guccione, the publisher of Omni. But even though he owns original artwork, layouts, and more, Frommer won't be producing new editions of the old magazine any time soon.
The magazine concept came from Kathy Keeton, married to Guccione, who supported the idea, and lost tens of millions of dollars across its run. It debuted in 1978 and lasted until 1995 in print and had a brief stint as one of the first webzines from 1996 to 1998. Keeton passed away in 1997, and the publication shut down not long after. Its archives and site disappeared in 2003. (The site Omni Magazine Online is run by a fan.)
Some terrific and popular sci-fi writers were first published in Omni, alongside great established ones of the day, due to the vision of Ellen Datlow, fiction editor from 1981 to its closing. (Ben Bova and Robert Sheckley preceded her, but both were gone by 1981.) She also edited Omni collections that featured reprints and newly commissioned works.
The writers included, between the magazine and its collections, Dan Simmons, Damon Knight, Nancy Kress, William Gibson, Robert Silverberg, Ray Bradbury, George R.R. Martin, Patricia Highsmith, William S. Burroughs, Joyce Carol Oates, Stephen King, Spider Robinson, Gene Wolfe, Ted Chiang, Melisa Michaels…there's simply not enough room to list them all. "Johnny Mnemonic" appeared there first; so did "Sandkings."
Beyond its own anthologies, there isn't a single collection of work that covers great science-fiction and fantasy of the last half century that doesn't have at least one story — and often multiples — that first appeared in Omni.
But Omni seems in limbo. Even though Frommer has revealed that he physically possesses the magazine's archives, no one seems to know precisely who owns its brand and its copyrights — whatever rights the entity had in the first place. After scanned, incomplete archives of Omni appeared in the Internet Archive a few years ago, and were mentioned again on BoingBoing in April 2013, I asked myself: who owns Omni? I may have an answer at last. This article was already in preparation when Vice's story landed this morning. (Jump to the end for the spoiler.)
Omni was ostensibly part of General Media, a corporation that was wholly owned by Penthouse International, of which Guccione was the sole shareholder. General Media, in turn, owned the Penthouse magazine, brands, and other properties. After becoming overleveraged due to a failed casino, fusion research (yes, fusion research), and the expansion into magazines like Omni, Longevity, and a woman-oriented skin/newsmagazine called Viva, Guccione had to sell bonds at a high interest rate. Once valued at billions, his porn business was in decline, and General Media filed for bankruptcy in August 2003.
Bob resigned as CEO and chairman of Penthouse International late the next year around the same time that investors who had bought up the now-cheap bonds managed to structure a deal to take over General Media that all the debtors approved. As part of it, they bought the famous Guccione Mansion, constructed at great expense, and let Bob live there indefinitely. He died after a long battle with cancer in 2010.
The group that acquired General Media later changed its name to FriendFinder Networks, and runs both dating sites and hook-up sites.
In poring through hundreds of pages of legal documents related to the bankruptcy and other court filings by Guccione and creditors, I was unable to find a single mention of Omni. It would seem like one of the entities mentioned above might know something about Omni's disposition, however.
A spokesperson from FriendFinder said via email, "We do not have any information regarding Omni Magazine." She referred me to the Wikipedia entry for more details.
The Internet Archive, which maintains a hands-off approach to uploaded content ostensibly to preserve its safe-harbor exclusion under American copyright law, replied via email, "The only information I have regarding that particular item is what is shown in the items description on its page."
I tried to reach Bob Guccione, Jr., through email and a few intermediaries; he was a son by an earlier marriage of his father. Bob Jr. founded Spin and Gear, and was active in the media empire during the early part of Omni's run. However, reports are that he had a falling out with his father in 1987 and they never spoke again. He didn't respond.
None of the US Copyright Office's records related to Omni copyrights contain any re-registration about current ownership, which sometimes occurs.
I did find that one story by Bill Gibson had a copyright record updated to reflect a change, and I asked him through a mutual friend if he remembered anything about how Omni worked. He replied via email:
All I remember about Omni is how gross the deep shag rugs in the Penthouse offices looked, and that they paid really well for a short story. Nothing about their contracts. And how nice Robert Sheckley and Ellen Datlow were.
Through other friends in the science-fiction world, I eventually spoke with Datlow and, through her, with Pamela Weintraub, who was an Omni editor starting in 1982, and the founding online editor for Omni Internet, which lived from 1996 to 1998 — launched long before most publications had a substantial Web presence. (Weintraub was most recently the executive editor of Discover Magazine, and still consults for it.)
Datlow, who also edited the anthologies and collections, said that the Gucciones were both "very optimistic about the future," and that they authorized her to pay the best rates to get the best established and new writers. Datlow says she read widely to find new voices, and worked to get Burroughs, Oates, and other mainstream fiction writers to publish fantasy and sci-fi stories with Omni.
She and Weintraub told me the "secret," so here's the big reveal. And it's not much of a secret; simply obscure.
There is no set of valuable Omni copyrights floating around. Most of its rights to work expired long, long ago.
Omni only contracted for "first North American serial rights," a common term at one point in writers' contracts before the Internet existed. I signed a couple that mentioned these rights in the 1990s. These rights gave a publication a limited period of exclusivity in print. After that, all rights reverted to the author (or artist or whichever creative person), and a publication would have to negotiate new rights to use again. "We fought very hard for that for our writers," said Weintraub. The same was apparently true for artists and other freelance contributors.
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.)
"We were dealing with that with fiction and with non-fiction, the contracts were nothing like the contracts you see today," Weintraub told me. In fact, she has the original paper contracts. Nobody wanted the files after Omni's demise; most others are apparently now in Frommer's hands. (The affection both she and Datlow have the publication is palpable in our discussions. Their love is literally close to hand: Weintraub has the contracts; Datlow was able to pull up a file during a phone call with a comprehensive list of everything she'd published issue by issue.)
Now, there is the separate issue of work-for-hire. Full-time employees of most publications (and any business) in America give up their copyright to work they create on the job by default. That material gains a corporate copyright which has a different term (95 years from publication). So the likelihood is that all the department stuff and in-house artwork created by staff is still protected by the current owner of Omni's intellectual property. But it's a relatively small amount and interesting only for historical purposes. (Company ownership and work-for-hire doesn't exist in every country. Canada, for instance, lets you sign copyright away, but you're always the work's author and retain moral rights. O, Canada!)
Weintraub believes she has as good an explanation for Omni's limbo as anyone: General Media never owned it, she said. To her knowledge, it was privately owned by Keeton and Guccione. As far as she knows, and I have found no contradiction, the various rights to the magazine would have been transferred to some creditor of Guccione's — but it's possible the creditor didn't even realize that it had obtained these rights. And, in any case, those rights only seemingly include the work-for-hire pieces.
No party has appeared to ask the Internet Archive or Omni Magazine Online to take down any material. The authors and artists whose work appeared in the publication and which is available through the Internet Archive could ostensibly assert a right, but it would require substantial documentation to qualify under the DMCA since no party asserts ownership to Omni as a collective work.
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.
So, who owns Omni? Nobody knows, possibly even the ostensible current owner. Someone does.
If a Guccione creditor subsequently went bankrupt or lost records in the last 10 years, the rights may be obscure for a very long time. Omni's copyright for work-for-hire material expires starting in 2075. Omni is all about the future, even years after it died.
Published 9:13 am Tue, Jul 9, 2013
About the AuthorGlenn Fleishman, @glennf, is the editor and publisher of The Magazine, a fortnightly electronic periodical for curious people with a technical bent. Glenn hosts The New Disruptors, a podcast about connecting creators and makers to their audiences, and writes as “G.F.” at the Economist's Babbage blog. He is a regular panel member on the geeky media podcast The Incomparable. In October 2012, Glenn won Jeopardy! twice.
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