For my presentation, I'm going to talk about determining the copyright status of cultural heritage materials in our collections.
We'll be talking about some of the concepts that have been discussed today but we're also going to put those principles into practice by thinking about how we can apply copyright law to items in our collections.
When I say that we are going to talk about cultural heritage items, what are we talking about?
Items where the copyright status isn’t readily available.
Some people have said to me that there is no way they have time to determine copyright status for everything in their special collections. They may even just have a generic statement in the rights section that says something like if they want to use or reproduce the item, they must contact the special collections department.”
But I would argue that if we are considering taking the time to digitize items and put them online, we also have a responsibility to do a basic copyright assessment and convey the status of the items to the best of our ability.
By licensing content appropriately, we can convey knowable information to our patrons and encourage use of our collections.
Can they use the image in a PowerPoint presentation? Can they print it on a shirt? In some ways, our special collections have new relevance thanks to the maker movement because users are looking for one of a kind, public domain materials from which they can create all sorts of things. And we don’t want to be the ones that limit their legal right to use that content any way they please.
Sometimes copyright is not as obvious as opening up a book and seeing “Copyright 1992”. A lot of times, you might need to do some investigative work to determine the copyright status of an item.
When determining copyright of special collections material, you need to ask four key questions...
The first step in a copyright assessment is figuring out whether or not the item you are assessing is still protected by copyright.
Usually when we think about public domain though, we often only think about works before 1923, when in reality there are several ways that work can enter the public domain.
So let’s tackle these one by one.
The most obvious way that an item is in the public domain is because the copyright has expired and most of us have that magical date of 1923 in our head when we talk about expired copyright.
But that date only applies to published works for items like books. Unpublished works have their own rules for copyright expiration.
These are three different items that are all in the public domain because their copyright has expire. [Click]
1.) Pride and Prejudice – published in 1813, well before 1923, clearly in the public domain. [Click] 2.) Diary (unpublished, known author who died in 1910) copyright law (70 years after death of the author) entered public domain in 1980 [Click] 3.) Anonymous letter, written well over 120 years ago. Public domain.
"Published" means something different when we are talking about copyright than when we talk about for instance getting a book published. According to copyright law, publication occurs when a work is made available to the public. For instance if you have a band and you put a poster for your band up in a public location, your poster became published the day you posted it in a public location. Sometimes you can't really know if something ever actually was published, but we can make educated guesses based on the type of material we're evaluating.
Wrinkle in Time - published in 1962 with a copyright notice. So you couldn't just print a whole bunch of copies of A Wrinkle in Time and pass them out at your library.
Night of the Living Dead entered the public domain at its theatrical release in 1968 because its original distributor neglected to place a copyright notice on the prints.
At the time, this was, of course, a huge debacle. But there has been an interesting unintended consequence of Night of the Libving Dead being in the public domain. For one, it is one of the most distributed movies of all time in every format - VHS, DVD, Blu-Ray. It was one of the the very first movies to be distributed on the Internet. And as of 2015, it is the Internet Archive's most-downloaded film, with over two million downloads. (according to Wikipedia) So being accidetally released in the public domain has made this one of the most viewed movies of all time and probably helped reinforce its status as a cult classic.
Okay, let's bring it back to special collections.
Just to be clear on this point, if you have an item in your collection that was published (not unpublished!) between 1923 - 1977 and it does not have a visible copyright notice, it is in the public domain. Digitize it! Put it online! And let people know they can do whatever they want with it!
Another law that works in our favor with special collections is the law that said that copyright owners were required to renew their copyright status in order to extend copyright to a “second term.” Most copyright holders didn’t do that, which means there is a host of material out there published prior to January 1, 1964 that was under copyright and fell into the public domain.
I was once working with John Herbert on newspaper digitization and luckily he had already done a search for copyright renewels of all the newspapers in Utah as part of UDN, the digital newspaper project. Only two newspapers in Utah renewed their copyright between 1923 and 1963 so he was free to digitize and make available almost all the newspaper content in this state through1963 without seeking permissions.
Because copyright is automatic and lasts for such a long time, and because a lot of intellectual property isn’t going to make anyone any money, many copyright holders are now choosing to dedicate their work to the public domain through the use of creative commons licenses and waivers.
This cute picture of a kitten from Flickr. It’s a creative work and is automatically covered by copyright. Let’s say the person who took the picture is 20 and lives to be 90 (another 70 years). Since copyright lasts for 70 years after the death of the author, this photograph would not enter the public domain until 2156. But by putting it in the public domain, anyone can use it for any purpose. They can make t-shirts of it and sell it. They can make a kitty collage apron. They can make a funny cat meme.
As librarians, it’s important to educate people about these licenses and encourage them to make their works more available through the use of appropriate licensing.
Textbook example of works that are born in the public domain are federal government documents.
You would think because this is such a simple law, no math involved, that all the government documents that we’ve digitized and put online would say that they are public domain, but I can tell you that is not true. I found an awesome collection of WWII posters that were published by the United States Government and the metadata record said, “These items may be covered by copyright. Please contact blah, blah, blah special collections if you would like to use them.”
This should actually make us mad because it is inhibiting the use of our collections.
Spoke to Ray Matthews about this at one point and he told me that we do consider our Utah government documents open.
So in the past 15 minutes I’ve thrown a lot of numbers out at you.
Unpublished works – Life of the author, plus 7- years – works from authors who died before 1946. Anonymous unpublished – 120 years from the date of creation – works created before 1896 (lots of special collections material!!) Published works – before 1932 – None 1923 – 1977 – No copyright notice - None! 1923 – 1963 – Published with notice, but not renewed – None!
If no one else has looked at the Copyright Genie, let’s do that.
The record says, “This material may be covered by copyright” If it was published from 1920-1922 it’s definitely public domain. If it was published from 1923-1929, is it public domain? Well, there is no copyright notice on it and it was published before 1977 so yes, it’s in the public domain due to failure to comply with required formalities. PUBLIC DOMAIN
So if any of you want to make your own Calvin Rawlings for President t-shirt or whatever creative thing strikes you, you go for it!
No, it was not published. It was a private letter. 1871 + 70 years = entered the public domain in 1941. If we didn’t know her death date, but the letter was dated, it would have been 120 years from the date of creation. In that case it would have entered the public domain in 1953. (Still a long time ago)
Is it published? Usually the answer with a photograph would be no, but this was actually was published in a newspaper.
Yes, it was published. Did the newspaper renew its copyright? If no, public domain! If copyright status has been renewed, it will be public domain in 2051. Letter… definitely public domain!
Bridgeman Art Library v. Corel Corp States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even though accurate reproductions might require a great deal of skill, experience and effort,
- the key element to determine whether a work is copyrightable under U.S. law is originality.
When you alter a public domain work, only the alteration may be protected by copyright. And only if the alteration meets the copyright law’s originality and creativity requirements.
You’ve done your assessment and you can't definitively say that something is in the public domain. What do you do about items that are either under copyright or might be under copyright?
Unpublished, 1919, no known creator. Potentially enters the public domain in 2039.
Your second option for copyrighted works, is to try to get permission from the copyright holder.
Due diligence checklist.
A judge will view this favorably if you document everything and show that you performed your due diligence in good faith.
Not all due diligence searches will be equal.
Act in good faith and document everything!!!!
For older materials, it may be impossible to identify and locate the copyright holder.
These works without a known or accessible copyright holder are called orphan works and they represent a huge portion of works that are eligible for copyright.
This is the part of the presentation where you may get a little nervous...
Let's consider for a moment a case study from the New York Public Library
They talked to their legal council and weighed the risk of digitizing the collection.
Unpublished, no known author, 1940 - Public domain in 2060.
Example of one item from that collection and what they have in the Rights field.
But having the collection online has paid dividends to scholars, researchers, and history buffs. The collections are used more than ever before, less people are handling the fragile material in the physical collection, and NYPL was even able to create a super cool app about the World Fair that won the iTunes “Education App of the Year” award in 2011.
The third option for using copyrighted works is FAIR USE. We are so lucky to have this as part of copyright law because it allows us to use copyrighted works for some purposes, some of the time.
The bad news is that the only way to get a definitive answer on a articular case is to have it resolved in federal court. Judges have a great deal of freedom in fair use disputes. Four factors are taken together, not one by one.
Four factors hang together, they are not taken one at a time, and they are not all weighed equally.
Let's say your institution chooses to get a little risky and to digitize orphan works after performing your due diligence search. What's the worst that can happen?
If you are doing a fair use assessment and putting copyrighted material or orphan works online, the worst thing that can happen is that you are issued a take down notice.
If the take down notice is legitimate, you must take down the infringing material within 10 days.
This wouldn't be a great thing because it uses a lot of resources to digitize collections and put them online. We don't want to put them up if we are going to have to take them back down.
But that's probably not going to happen.
Some larger institutions have taken a riskier stance when it comes to digitizing material and putting it online.
In the HathiTrust’s entire existence, they have received ten or less take-down notices.
That being said, be mindful about likely sources of pushback: i.e., content related to public figures, produced by famous people, etc. Or privacy issues like children or protected populations.
Once you have these items in your collection, it is important that you communicate to your users the legal status of the items so they know what they can do with the items they find. This information should be added either to a catalog or metadata record.
Known information about the copyright status of your items should be shared with your users!
Here is an example of a record from USU. “This item is in the public domain and as such may be freely used without restriction.
Good job, USU!
This is a record from the Boston Public Library’s photo collection. Leslie Jones died in 1967. Wouldn’t be public domain until 2037. Family released the collection under a Creative Commons license.
I also want to thank Amy Rudersdorf and Franky Abbott…
Determining Copyright for Cultural Heritage Materials
FOR CULTURAL HERITAGE
Research Data Management Librarian
J Willard Marriott Library, University of Utah
UALC Professional Development Retreat 2016
September 23, 2016
Adapted from the Public Library Partnership Project Curriculum and shared
under Creative Commons Attribution-Non-Commercial 4.0
WHAT KINDS OF MATERIALS ARE WE
• “Special” collections
• One of a kind items
Pamphlet advertising "Montana Free homestead
land" published by the Great Northern Railway,
1912. Image credit: Montana Historical Society
Coach Romney in 'Counselor at Law,'
1930s. Image credit: Harold B. Lee
Library, Brigham Young University
UNDERSTANDING COPYRIGHT STATUS HELPS:
• Libraries determine…
• What content to digitize
• What level of risk the digitized content might pose
• How to license content appropriately
• Users determine what they can and cannot do with digitized
• Do you know the creator(s)?
• When was it created?
• Was it ever published? If so, by whom?
• Do you have external information about copyright restrictions? (e.g. from a
deed of gift)
There are five common ways that works transfer into the public domain:
1. The copyright has expired
2. The copyright owner published the work without a copyright notice.
3. The copyright owner failed to renew copyright status.
4. The copyright owners deliberately places – or dedicates – his/her work to the
public domain using a CC0 Creative Commons waiver.
5. The work was born in the public domain.
#1 THE COPYRIGHT HAS EXPIRED
• Published works before 1923
• Unpublished works – Life of the author +
• Unpublished work, no author/death date
unknown, 120 years from date of creation.
Pride and Prejudice –
Diary of Bathsheba W.
Bigler Smith (1822-1910),
“Publication is the distribution of copies or phonorecords of a work to the public by
sale or other transfer of ownership, or by rental, lease, or lending. The offering to
distribute copies or phonorecords to a group of persons for purposes of further
distribution, public performance, or public display constitutes publication.” (U.S.
Publication occurs on the date when copies of the work were first distributed to the public.
PUBLISHED OR UNPUBLISHED?
Postcards with writing
2. THE COPYRIGHT OWNER PUBLISHED THE WORK
WITHOUT A COPYRIGHT NOTICE
• Published between 1923 and 1977
without a copyright notice.
Night of the Living Dead, 1968 – Whoops!
EXAMPLE – NO COPYRIGHT NOTICE
Brochure against the damming of the
Clearwater River, 1957, University of
No copyright notice between 1923-
1977 = public domain
3. THE COPYRIGHT OWNER FAILED
TO RENEW COPYRIGHT STATUS
• Between 1923-1963, rights holders had to renew their copyright status after a certain amount of years.
• Check online with the Copyright office.
4. COPYRIGHT OWNER DEDICATES THEIR
WORK TO THE PUBLIC DOMAIN
5. THE WORK WAS BORN IN THE
Documents created by the federal
government and its employees as part of
their jobs are not protected by
WWII Poster; NARA
WHAT ABOUT STATE RECORDS?
• It depends
• In Massachusetts: “Records created by
Massachusetts government are not
copyrighted and are available for public
• In Arizona: “Unlike federal works, state
works are not in the public domain and
are protected by copyright.”
Executive order from the Governor of Arizona,
1955 from the Arizona State Library
UTAH GOVERNMENT DOCUMENTS
"Subsidized by public funds, these publications are are meant to be widely
available to the citizens of Utah.”
Published by Utah
Division of State History
FIVE COMMON WAYS THAT A WORK
ENTERS THE PUBLIC DOMAIN
1. The copyright has expired.
2. The copyright owner published a work without a copyright notice. (1923-1977)
3. The copyright owner failed to renew copyright status. (1923-1963)
4. The copyright owner deliberately places – or dedicates – his/her work to the public
domain using a Creative Commons CC0 waiver.
5. The work was born in the public domain. (Federal and some state governments)
• Utah political campaign
poster from the 1920s.
• Was it published?
• Is it in the public domain?
Image credit: J. Willard Marriott Library
• 1833 letter from Sophia
Hawthorne (1809-1871) to
• Was it published?
• Is it in the public domain?
My dearest mother, It is time… Dec.
20, 1833. New York Public Library.
• Billy Woods holds a letter he received
from President Eisenhower, 1956
• Is it published?
• Is the photo in the public domain?
• Would the letter in the photo be in
the public domain?
University of North Carolina at Chapel Hill
WHAT ABOUT THE DIGITAL COPY?
An institution should not claim copyright on digitized
content when the original is in the public domain.
(Bridgeman Art Library v. Corel Corp.)
OPTIONS FOR COPYRIGHTED WORKS
“Red cross volunteers with baskets of food for troops at the Logan O.S.L.R.R.
Depot” Utah State University (1919, unpublished, no creator)
• Published after 1923: Wait!
• Unpublished, creator died after 1946: Wait!
• Unpublished, anonymous, and after 1896: Wait!
• Published 1923-1977 with a copyright notice: Wait!
• Published between 1923-1963 and they renewed their
Image credit: Los Angeles Public Library
2. GET PERMISSION
• Try to identify the copyright holder (creator or publisher) and perform “due
Managing Digital Audiovisual Resources: A Practical Guide for Librarians, by Matthew C. Mariner
• You’ve tried, you’ve
documented, but you can’t find
or identify the author or
publisher of a work.
• Take heart.
Photo credit: University of Southern
• Many institutions have chosen to digitize or use
• Determine your institution’s comfort with accepting
• Some institutions are riskier than others.
“War Orphans” –
NEW YORK PUBLIC LIBRARY
• The New York World’s Fair of 1939 and 1940.
• Corporation in charge of the fair donated 2,500 boxes of documents and 12,000
• Heavily used collection.
• NYPL staff performed a good faith effort to locate a copyright holder but could not.
• So they digitized the collection and put it online.
• So far, no rights holder has come forward.
3. SECTION 107 (FAIR USE)
Courtesy Mary Minow via Peter Hirtle
RECAP – OPTIONS FOR
1. Wait until the item is clearly in the public domain.
2. Get permission from the rights holder… but remember orphan works.
3. Consider fair use options.
WHAT’S THE WORST THAT CAN HAPPEN?
Surnames Danell-Darcy, Montana Memory Project
TAKE DOWN NOTICE
• Copyright owner should provide official notice to the person posting the
• If the notice is legal and legitimate you must, act “expeditiously to remove, or
disable access to” the allegedly infringing material.” (17 U.S.C. § 512
10 or less take-down notices in their existence
New York Public Library
An average of 10 a year but they are often invalid
and don’t take the materials down.
Note: These institutions have a high risk tolerance
and are extremely high-profile. Chances are you
will never get a take-down notice!
Metadata that communicates the legal status of the items in your
collection so that you and your users know what they can do with
the items in your collection.
Rights statements – legal status of an item.
Access statements – how users can responsibly use an item.