Copyright Questions

[Eagerink]

I have a short story that I would like to sell to a magazine, as a lot of you are--and I was wondering if there was anyone on here who could answer a question I have about this particular story.
You see, it's a story about Wynken, Blynken, and Nod, and not only that, but it has the entire text of that poem written into it at different intervals--actually written into the story, not as a poem. (as a note I'm not looking to enter this story in wotf so I think it should be fine to talk about it openly on here...)
So I have done some research on this (before I wrote it) and found that since Wynken, Blynken, and Nod is in the public domain, as the author died in 1895, there shouldn't be any copyright issues. And all I could find about plagiarism was that both author's names should be included (in this case, mine and the original author Eugene Field.) So hopefully publishing such a thing would be legal, at the very least without me getting any payment.

I don't consider myself an expert in this at all, so I was wondering if any of you might be? I know there are some editors on here, and much more experienced people. So if anyone has any insight into this, or knows more about it, or could at least verify what I have learned so far, that would be greatly appreciated.

And if anyone happens to know a good place to publish it, feel free to speak up on that too :)

[GlibWizard]

I start with the disclaimer that I'm not a lawyer, but this is my jam. I did attend law school and researched fanworks as a possible note topic.

I think you've analyzed things correctly. The legal term for what you've created is a derivative work. The right to create derivative works is one of the rights that belongs to the original author under copyright law, but copyright protection ends for exactly this reason, so that creative people can build on previous works. You can write a story expanding a public domain poem without infringing copyright.

The only part of your analysis that looks like an error to me is saying it's okay if you don't get payment. Whether or not your work is commercial matters if you are arguing fair use. Fair use is an affirmative defense, like self defense is a defense to murder. It's something that we would explore if you were infringing on a copyrighted work, but had a good reason for doing it. It doesn't apply here because you aren't infringing copyright. So be confident that you can get paid for this when selecting markets.

You're also correct that copyright law doesn't fully encompass ethics, but you're crediting Eugene Field.

Good luck with it, it sounds cool! This is a complete guess at your tone, but Enchanted Conversation might be a market?

[Wulf Moon]

What GlibWizard said. It’s out of copyright protection. Payment or even seeking profit does not matter. There are plenty of publishers making money off old stories no longer under copyright. Look at the Flame Tree volumes as one example.

[Eagerink]

Thanks Moon and GibWizard!

I have one question:

You're also correct that copyright law doesn't fully encompass ethics, but you're crediting Eugene Field.

I'm going to credit him for sure, but do you know if it would violate any laws to not credit him? (just out of curiosity.)

[GlibWizard]

I'm going to credit him for sure, but do you know if it would violate any laws to not credit him? (just out of curiosity.)

It might in some places, but I've hit one of the edges of my brief legal training. Some art-related laws grant "moral rights" to artists, and those usually include the right to be credited, but US law only protects some visual art this way. Other countries recognize moral rights in written works, but I don't know much about it.

[Eagerink]

I'm going to credit him for sure, but do you know if it would violate any laws to not credit him? (just out of curiosity.)

It might in some places, but I've hit one of the edges of my brief legal training. Some art-related laws grant "moral rights" to artists, and those usually include the right to be credited, but US law only protects some visual art this way. Other countries recognize moral rights in written works, but I don't know much about it.

Ok thanks