COPYRIGHT RISK ASSESSMENT FOR THE DIGITAL HUMANITIES:

Archiving the Grateful Dead Online

Katie Fortney@kfortney

The s

un c

om

es

in b

y Jam

es

Cri

dla

nd h

ttp:/

/ww

w.fl

ickr

.com

/photo

s/1

83

78

65

5@

N0

0/2

27

27

81

23

4 C

C B

Y

www.gdao.org

What’s in the Grateful Dead Archive?How is the website different?How did we decide when to ask for

permission, and when not to?

Did anybody sue? (Spoiler: no.)Now what? Our Trip by Frisno http://www.flickr.com/photos/frisno/2917037253/ CC BY-NC-ND

We’re kind of a big deal.

It’s not your average archive.

(but then, what is?)• Photos• Posters• Fan Envelopes• Audio and Video• T-shirts• Concert Tickets• Stage Props• Backstage Passes• News Clippings• Fanzines• And more!

What Went Online?Content types, by number of items

Fan En-velopesTickets

T-Shirts

Fan Art

Passes

Album Covers

Programs

Fanzines

Audio files

Photos

Posters

We didn’t build from scratch.

http://omeka.org/

It’s all about the shows.

Browse, search, look, and listen.

Q: What does copyright cover?

• “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” – 17 U.S.C. § 102 (Copyright Act of 1976)

A: Most things in an archive.

• With some exceptions–Really old stuff–U.S. government

works– Other things I can talk about later if you’re

really curious

A distressing situation A by Pulolux !!! http://www.flickr.com/photos/pulpolux/379647277/ CC BY-NC

For works protected by copyright

• You need to get permission from the copyright holder for– REPRODUCTION– Derivative works– Distribution– Public performance

Half Asleep by Thomas Hawk http://www.flickr.com/photos/thomashawk/2513078943/ CC BY-NC

So what’s Fair Use?

• When you don’t need permission, based on a carefully weighed analysis of four factors:– Purpose of the Use– Nature of the work being copied– Amount of the copyrighted work being used– Effect on the market

Salviamo il salvable by Andrea Zanzivan http://www.flickr.com/photos/zanzibar123/252977632/ CC BY-NC

Some would consider thisa risky project.

Fair Use x 23,000!

Photographs!Unpublished

Works!

DK publishinggot sued

over rock posters

http://www.flickr.com/photos/floridamemory/3308644581/ No known restrictions

Fair Use Case #1:Fan Envelopes

• Nonprofit educational purpose

• Creative, unpublished works

• Entire work• No reasonable market to

affect

Fair Use Case #2:Tickets

• Nonprofit educational purpose• Factual works. Published?• Entire work• No reasonable market to affect

Not all risks are copyright risks.

Community

goodwill

Fair use

Project

quality

em marte tem piscina by Srta. Lobo http://www.flickr.com/photos/44896544@N00/126843186 CC BY-NC-SA

Tricky Cases:Photographs and Posters

We made ourselves available,

and tried to make some friends.

Leveraging existing

relationships

Letter and license

campaign

Easy to find contact

information

Shake by bradjreynolds http://www.flickr.com/photos/bradjreynolds/4222512371/ CC BY-NC-ND

Photographers and artists aren’t always easy to find.

Not FoundNo ResponseSigned LicenseRefused

Copyright Status of Items

Thomas E. Watson Papers

In-copyright

Public Domain

Watson Fam-ily

Undeter-mined Status

Works-for-hire

Illegible

Grateful Dead Posters

In-copyrightPublic DomainPermission: Grateful DeadPermission: Licensed

Dickson, M. (2010). Due Diligence, Futile Effort: Copyright and the Digitization of the Thomas E. Watson Papers. American Archivist, 73(2), 626-636.

We have taken down a few things.

• 23,000 items as fair use–209 e-mails to archive•37 from creators–15 resulting in takedown»7 of those 15 would have been happy with redaction (the rest didn’t say)• 0 claims of copyright infringement

otto kopriva by batintherain http://www.flickr.com/photos/82995349@N00/398033423 CC BY-NC-SA

People liked finding their stuff!

“sweet jesus…YOU MADE OUR DAY!”

“I can't tell you what a gift this is!!!”

“How incredibly cool to see it again after all this time, I was 17 when I drew it. Just wanted to say THANK YOU for bringing back some awesome memories!”

“Seeing my envelope art was a trip and it brought a big smile to my face.”

nik's fancy crayons by Greencolander http://www.flickr.com/photos/37539977@N00/387073478 CC BY

“Despite extensive research, the Library has been unable to identify all possible rights holders in the materials in this collection.

Thus, some of the materials provided here online are made available under an

assertion of fair use.” – Library of Congress

1999

We were not the first ones to arrive at this party.

… but the party’s still not as big as it should be.

“When they did digitize, as most did, they almost universally chose to digitize public

domain materials first, regardless of scholarly needs, in order to avoid copyright questions in the short (or even medium) run.”

-Fair Use Challenges in Academic and Research Libraries,

2010

When are we going to startasking the right questions

when we select collections for digitization?

Untitled by Ciccio Pizzettaro http://www.flickr.com/photos/70038540@N00/1917885551 CC BY-NC-SA

Libraries have some good tools.They don’t have to stay in the

library.

arl.org/fairuse

publications.arl.org/rli279/

Questions?

iknowiknow by renedepaula http://www.flickr.com/photos/41867887@N00/167679756 CC BY-NC-ND

@kfortneykatie.fortney@ucop.edu

slideshare.net/katiefortney