Webinar for Society of California Archivists re: copyright workflows for work with visual resources, such as photographs, paintings, images, and associated metadata.

1. COPYRIGHT WORKFLOWS
Rachael G. Samberg, J.D., M.L.I.S.
@rach_scholcomm
For work with visual resources

2. Today
▪ Why are we talking about this?
▪ Copyright overview
▪ Workflow for visual resources
▪ Testing the workflow with use cases

3. Why are we
talking about this?
Van Gogh, Irises, 1889. Getty Museum
Stile Arte, 2011.
http://www.stilearte.it/dipingere-come-
van-gogh-tanti-tutorial/

4. But, can’t I just
cite the source?
Dan4thNicholas, CC-BY, h2ps://flic.kr/p/8PEZiG Sakaki0214, CC-BY-NC-ND, h2ps://flic.kr/p/9jykF1
Attribution Permission

5. What is copyright?
Exclusive rights to make certain uses
for limited period of time

6. Reward of
Exclusive Rights
▪ Reproduction
▪ Derivative works
▪ Distribution
▪ Public performance
▪ Public display

7. …for limited
periods of time
Varies, but at least author’s life + 70 years
Within “protected” period,
author’s permission needed to
reproduce, display, perform, etc.

8. A Few Other ©
Prerequisites
By Rachael G. Samberg
Protects expressions, not
ideas or facts
Must be original,
authored, and fixed
74.3 × 94.3 cm
“I’d like to
paint irises
with oil paint.”
http://www.getty.edu/art/collection/objects/
826/vincent-van-gogh-irises-dutch-1889/

9. Copyright &
Underlying Work
By Rachael G. Samberg

10. Works in
Public Domain
https://www.cdc.gov/bloodpressure/infographic.htm
Federal Government Works

11. Works in
Public Domain
https://commons.wikimedia.org/wiki/
File:Britannica_Shakespeare_Droeshout_Engraving.jpg
Expired copyright

12. Other
Limitations
Statutory exemptions
• Undertake exclusive rights
without obtaining permission and
without payment of license fee

13. Fair Use
17 U.S.C. § 107
The fair use of a copyrighted work…
for purposes such as criticism,
comment, news reporting,
teaching…, scholarship, or research,
is not an infringement of copyright.

14. Statutory Exemption: Fair Use
1. Purpose & character of use
(commercial purposes less likely fair than
nonprofit educational; whether use is
“transformative” often dominates)
2. Nature of copyrighted work
(more likely fair if you’re using factual/
scholarly work)
3. Amount and substantiality
(size & importance of portion used in
relation to whole)
4. Effect on potential market
(less likely fair if use is substitute for
purchasing—or licensing—original)By Rachael G. Samberg

15. Is use fair?
▪ All four factors
▪ No bright line rule
▪ No 10% rule
▪ Always fair to link to lawful

16. Still in © and use exceeds fair?
▪ You need permission
▫ Permission = license
applied by copyright holder
▫ Can be pre-applied

17. Working
through it
By Rachael G. Samberg

18. Workflow
1: Do you need
permission?
Has a license
already been
granted?
Is the work in the
public domain?
Would publishing the
content be fair use? If yes to
any, go to Step 3.
2: Seek permission
if needed
Research who holds
copyright & send
request.
Keep records for
your files
Ensure permission covers
all intended uses
3: Address non ©
policy concerns
Contractual or terms of service
restrictions from archives,
databases, or websites?
Concerns about rights
of privacy or publicity?
Should you
register your
copyright?
Do you want to & can
you license the use of
your work?
4: How do you want
to share?

19. 1: Do you need
permission?
Has a license
already been
granted?
Is the work in the
public domain?
Would publishing the
content be fair use? If yes
to any, go to Step 3.

20. Applying Step 1:
Dig into Purpose
Analysis of artists’
self-marketing
Compiling works by
photographer
George Georgiou, http://www.georgegeorgiou.net/projects.php

21. Applying Step 1
By Tvanbr (Own work) [Public domain], via Wikimedia Commons
https://commons.wikimedia.org/wiki/File
%3AAnatomy_Heart_Latin_Tiesworks.jpg
Digitizing
Anatomical Diagrams
https://leonardodavinci.stanford.edu/submissions/clabaugh/history/leonardo.html

22. Observation
You have a right to make fair uses.
Asserting the right involves
judgment and some risk analysis.

23. 2: Seek
permission if
needed
Research who holds
copyright & send
request.
Keep records
for your files
Ensure permission
covers all intended
uses

24. • Archives might have info
• Could also try searching registrations
Finding Rights Holders

25. • Took awhile to
determine supposed
author, but incorrect
• Tried other suggested
author, no response
Bill Clinton Inauguration, published in S.F. Sentinel

26. Robert Rauschenberg, “Bed”
Image file MOMA
The image may be displayed in eBook format for
a period of up to ten years only. All images
used online must be displayed at a maximum
resolution of 72 dpi. All future editions, reprints,
translations, or formats (including electronic
media) must be negotiated separately.

27. Keep Records of Fair Use Determinations
& Efforts to locate

28. Observation
If you’re concerned your use exceeds fair use,
but are unable to locate rightsholder, or the
scope of your usage request is denied:
Exercise judgment and
undertake risk analysis.

29. 3: Address non ©
policy concerns
Contractual or terms of
service restrictions from
archives, databases, or
websites?
Concerns about rights of
privacy or publicity?

30. Contractual Limitations:
Archive Agreements

31. Contractual Limitations:
Website Terms End Run
Around Fair Use

32. Can they do that?

33. Rights of
Privacy
▪ © protects copyright holders' property rights
▪ But privacy protects people who are subjects of works
▪ Vary by state
▪ Expire at death
▪ Newsworthiness and permission are defenses

34. Rights of
Publicity
▪ Right to control commercial use of identity
▪ Survive death
▪ Usually applicable only if commercial use

35. Should you
register your
copyright?
Do you want to & can
you license the use of
your work?
4: How do you want
to share?

36. If they liked it
then they
should have
put registration
on it?
• Copyright attaches upon
work being fixed
• Registration not required
• But it has advantages:
Statutory Damages

37. Encourage scholarship,
innovation, criticism, etc.?
Preclude reuse beyond
fair uses?
TLG® materials are copyrighted and are
not in the public domain. You may browse
and search the TLG Canon and textual
corpus and online LSJ on this site but you
may not download them.
http://www.tlg.uci.edu/copyright/index.php
How should others use your new work?

38. Use Cases &
Analysis

39. You have the right to make fair uses.
Relying on it involves
making judgments.
Terms of use restrictions (or contracts)
can affect uses
that otherwise would be fair.

40. Use Case #1
▪ Analyzing slides shot in Egypt between 1969 and 1980.
▪ Purchased at U.S. garage sale, photographer unknown.
▪ Donated to archives, which is your source for images.
How would you proceed?

41. Use Case #2
▪ You find an architectural society has a 35mm slide
collection of a former architect at work.
▪ They did not receive copyright in gift transfer.
▪ Both the photographer and the subject of the photos
(the architect) have since passed away.
How would you proceed?

42. Use Case #3
▪ You plan to give nationwide lectures at conferences using
the slides from Use Case #2
▪ Reached out to estate of photographer, but no response.
▪ The conferences charge an admission fee.
Can you use images in way that is fair if charging admission?

43. Use Case #4
▪ British Museum digitized image should
be in public domain, but website terms
apply CC-BY-NC-SA license.
▪ Can you use this in a book you’re
publishing?
CC-BY-NC-SA 4.0 British Museum. Print by Farrell, circa 1897-1922.

44. Get the flow
Thanks!
http://www.lib.berkeley.edu/
scholarly-communication/
publishing/copyright/using-in-
publications