determining copyright for cultural heritage materials

DETERMINING COPYRIGHT FOR CULTURAL HERITAGE MATERIALSRebekah CummingsResearch Data Management LibrarianJ Willard Marriott Library, University of UtahUALC Professional Development Retreat 2016September 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 TALKING ABOUT?

• “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 Research Center

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 content

KEY QUESTIONS

• 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)

PUBLIC DOMAINThere 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• Published works before 1923• Unpublished works – Life of the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 + 70 years. • Unpublished work, no author/death

date unknown, 120 years from date of creation.

Pride and Prejudice – published 1813

Diary of Bathsheba W. Bigler Smith (1822-1910), 1849

Anonymous letter, 1770’s.

“PUBLISHED”“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. Copyright Law)

Publication occurs on the date when copies of the work were first distributed to the public.

PUBLISHED OR UNPUBLISHED?Probably unpublishedLettersPhotographsDiariesPostcards with writing

Likely publishedBooksPostersBrochuresPamphletsBlank Postcards

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!

No copyright notice

SCARY!

EXAMPLE – NO COPYRIGHT NOTICE

Brochure against the damming of the Clearwater River, 1957, University of Idaho library

No copyright notice between 1923-1977 = public domain

3. THE COPYRIGHT OWNER FAILED TO RENEW COPYRIGHT

STATUS

Pleasant Grove Review, 1960

• 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 PUBLIC DOMAIN

Documents created by the federal government and its employees as part of their jobs are not protected by copyright.

WWII Poster; NARA

WHAT ABOUT STATE RECORDS? • It depends

• In Massachusetts: “Records created by Massachusetts government are not copyrighted and are available for public use.”

• 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)

AGH! I CAN’T REMEMBER THAT!Copyright Genie: http://librarycopyright.net/resources/genie/ Cornell Copyright Chart: http://copyright.cornell.edu/resources/publicdomain.cfm

SCENARIO #1

• Utah political campaign poster from the 1920s.• Was it published? • Is it in the public domain?

Image credit: J. Willard Marriott Library

PUBLIC DOMAIN

SCENARIO #2

• 1833 letter from Sophia Hawthorne (1809-1871) to her mother.• Was it published? • Is it in the public

domain? My dearest mother, It is time… Dec. 20, 1833. New York Public Library.

PUBLIC DOMAIN

SCENARIO #3• 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

PUBLIC DOMAIN (LETTER AND MAYBE PHOTO TOO)

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)

1. WAIT!

• 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 copyright: Wait!

Image credit: Los Angeles Public Library

2. GET PERMISSION• Try to identify the copyright holder (creator or publisher) and perform

“due diligence.”

Managing Digital Audiovisual Resources: A Practical Guide for Librarians, by Matthew C. Mariner

WHAT CONSTITUTES DUE DILIGENCE?

• 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 California

ORPHAN WORKS

• Many institutions have chosen to digitize or use “orphan works.”

• Determine your institution’s comfort with accepting some risk.

• Some institutions are riskier than others.

“War Orphans” – Brigham Young

University

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 promotional photographs.

• 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.

ITUNES “EDUCATION APP OF THE YEAR” 2011

3. SECTION 107 (FAIR USE)

Courtesy Mary Minow via Peter Hirtle

RECAP – OPTIONS FOR COPYRIGHTED WORKS

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 infringing material.

• 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 (c)(1)(A)(iii))

HathiTrust10 or less take-down notices in their existence

New York Public LibraryAn 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!

RIGHTS ASSIGNMENT

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.

EXAMPLE 1: RIGHTS STATEMENTS

Good job, USU!

EXAMPLE #2: RIGHTS STATEMENTS

FINAL THOUGHT

Does your deed of gift form include a provision for digitization and online reuse of donated resources?

Should it? YES.

THANK YOU!Adapted from the Public Library Partnership Project Curriculum and shared under Creative Commons Attribution-Non-Commercial 4.0

Please share, reuse, and adapt!

QUESTIONS?

Image courtesy of the US Archives via Flickr/The Commons