Rather than perform the gentlemanly act and apologize for his mistake, Sanders issued an ultimatum to his contributors. If they wished to remove their stories from the archive and did not express their wish to do so within a month, they would be forced to pay $40 to have it removed later. Soon, Sanders retracted this offer and declared that nobody could have their stories removed at all.

Assuming that there is no written instrument, Sanders is in no position to make such demands of his contributors.

The question that nobody has asked here is whether any of the Helix contributors ever signed a contract or another written instrument upon having their stories appear in Helix. Sanders’s magazine lists all of the contents as falling under the copyright of Helix. This itself is fallacious, because according to Helix’s website, Helix is published by the Legends Group, which is described as an unincorporated association. Since Helix is based in Maryland, according to the Maryland Business Regulation Code, § 19-201, it can therefore be described as an organization. Therefore, if the copyright notice on the site is valid, should not the copyright read “©2008 The Legends Group” instead? And if The Legends Group has performed due diligence, then surely this would be reflected at the Register of Copyrights, right? After all, § 409 of United States Code, Title 17, states that each application for copyright must contain “(10) in the case of a published work containing material of which copies are required by section 601 to be manufactured in the United States, the names of the persons or organizations who performed the processes specified by subsection (c) of section 601 with.”

But over at the Library of Congress’s public catalog, we discover no such notices for these stories by either Helix, The Legends Group, or William Sanders. Searches for “Legends Group” and “The Legends Group” reveal no registered copyrights. And searches for “Helix” or “Sanders William” do not match up with any of the stories listed on the Helix site.

If the Helix contributors simply sent in their stories into Sanders and he agreed to publish them, and there was no contract, then this means that they retain the unregistered copyrights for their stories, and Sanders is in violation. If Sanders did not have a written instrument in place specifying that there was a transfer of copyright to Helix, then the copyright belongs to the author. Which would mean that the author controls whether or not the story appears on the website. To cite the specific code section under §204 of Title 17:

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

Of course, to uphold Sanders’s numerous copyright violations, the stories would need to be registered. If the writers who wish to have their stories removed from Helix were to register their stories with the Copyright Office, then Sanders be in clear violation of copyright and damages could be pursued.

Either way, Sanders does not come out of this looking well at all. The best thing for him to do is to remove any stories that authors wish for him to remove. And if Sanders cannot perform this basic courtesy, then the writers have the obligation to register their stories with the Copyright Office and take up the dispute in court to collect the dutiful damages that come from being associated with a racist editor.

Neither Jenkins nor Thompson address the real problem. Short stories are simply no longer part of the general population’s reading diet — at least not in magazine form. Gone are the days where people read magazines to become lost in stories. (And pardon the longass digression, but I also believe that this has something to do with the regrettable paucity of exciting radio dramas along the lines of Quiet, Please. As far as I am concerned, there is something extremely sad about the United States failing to subsidize or encourage radio drama, while the form continues to flourish with public and private monies in Canada and the United Kingdom. I have made more feverish quests than I can count, but unless someone can direct me to a podcast that is on the level of a Mutual or NBC Blue radio drama and that is not merely a recording of an author reading their work, along the lines of Escape Pod or an audio book, not even the great podcasting revolution has offered anything worthwhile. As for audio books, having revisited the form recently out of personal and professional interests, I can likewise assure you that the majority of readers hired for these safe ‘n’ sane outings have been trained to read work without zest or dramatic gusto. The Take No Chances motto, which one expects from the latest family film released by Disney, holds true for this quite promising medium. Rather criminally, the audio books industry made $871 million in 2005 on this soporific racket.)

Michael Chabon made two efforts to revisit this golden era with his two guest-edited McSweeney’s volumes. And while these were certainly fun and welcome diversions, the grand revelation was that the majority of writers, by way of not having reading the magazines of the 1930s and the 1940s, are simply not trained to entertain in the manner that those who wrote for Collier’s and Esquire back in those days did.

Magazines now serve to promulgate news, celebrity gossip, and those Cosmopolitan questionnaires in which I always seem to end up “prepared to entice your man in bed.” (On the latter point, don’t ask me why this ends up happening to me. I merely fill in the bubbles.)

I am not trying to sound elitist here. Nor am I suggesting that any of these developments are bad or represent the end of civilization. Reading, contra the alarmism raised a few years ago by the NEA, is far from dead. Any casual glance inside a subway will reveal no shortage of people who are reading. But if they are reading fiction, they are reading books, not magazines.

So where does this leave the short story (or, for that matter, the radio drama)? Well, I think recent steps taken by Esquire fiction editor Tom Chiarella, in which twice as many short stories are being published this year compared to last year, are a start. If the short story is to survive among the general publication, and this may very well be the key to the ongoing health of literary journals and short stories, it is now up to the general interest magazine to save it by including exemplars of the form within its pages. For that is where the magazines are likely to be stocked in bookstores. Or perhaps the time has come to offer more short story collections in the form of books. (Interestingly, the Chabon-edited McSweeney’s collections were marketed this way. I’d be extremely curious about their Bookscan figures. The fact that a third volume did not arrive may attest to poor sales.)

But practically speaking, if you want to save the short story as a whole and if you want it to be more than merely the niche markets it currently serves, you’re going to have to get the general population reading short fiction. And this means creating magazines, exclusively devoted to fiction that entertains as well as enlightens, that the public will buy. Even if this means a profusion of penny dreadfuls. Is such a thing possible? I think so. But only if markets can be successfully created and only if the writers writing today understand that narrative is just as important as MFA haberdashery.

What we need to do is train a generation of readers and possibly a generation of listeners. That 25% of the general population listens to audio books is an encouraging sign. But what if the audio books became more dramatic, along the lines of a radio drama? And what if these radio dramas (or podcasts) were tied, as the great drama X Minus 1 was, to a major magazine? (X Minus 1 had a close association with the late Galaxy Magazine. People listening to the program could then go to the magazine where they might find similar stories that would excite them. I have no firm figures on the effect the radio program may have had on sales. Perhaps one of Horace Gold’s descendants might wish to weigh in.)

If the short story were truly important in the United States, then someone would step in and find a way in which to reach the great American public. What we have instead are a bunch of embittered MFAs and people who have become tired of reading McSweeney’s, when it’s really King who’s on the money here. While I’ll always enjoy and appreciate short stories, I simply won’t be convinced that they matter to the populace at large until I see subway commuters replacing their mass market paperbacks with fiction magazines, or until I don’t have to stoop down in the bookstore to get the latest issue of ZYZZYVA.

Fortunately, the Board of Governors has opened up a small window of public comment over the course of eight days — set to expire on April 25.

This is a crushing blow to independent magazines, the dead tree equivalent to net neutrality.

Fortunately, a site exists in which you can sign against these inequitable developments. If you care about a democratic magazine landscape and keeping the playing field level, do your part.

But maybe, just maybe, the recent hiring of Tom Chiarella as fiction editor might be enough for me to resubscribe to the magazine. Not only is Esquire doubling up its fiction, but the November issue features a piece by LBC winner Michael Martone.

It’s reassuring to see Chiarella embrace the magazine’s long legacy of publishing short stories from the likes of Donald Barthelme, Stanley Elkin, Tim O’Brien and Barry Targan. Let us hope that this represents a sign that Esquire EIC David Granger is committed to some shadow of the daring fiction and journalism that Esquire was known for in the 1960s. Perhaps the time has come to give the magazine another chance.

(via Galleycat)