Intellectual Property Working Group
Copyright Queries
From time to time participants on the Archives & Archivists listserv pose questions related to intellectual property law. Selected queries and answers are reprinted here, in the hopes that they are of benefit to archivists struggling with complicated IP issues. These posts are repurposed here in accordance with the list's Terms of Participation, but contact Aprille McKay if you would rather your post did not appear, or to appear without attribution.
Licensing Oral History Materials, Dec. 27, 2007
Someone wants to use several phrases from an oral history interview in a song he is writing. We have the interviewee’s release form giving us copyright. The song writer could easily transcribe the phrases, but I think he wants an audio version. How in the sam hill do you handle that type of request? Can we actually charge for the use, particularly if this was a grant funded oral history project?--
Barbara Austen
You wrote that you "have the interviewee's release form giving us copyright." So there is no need to think about sampling, fair use, etc. If you own the copyright, you can authorize whatever you want.
You
can deny permission, grant permission, charge a fee, restrict
possible uses, etc. Diane Zorich has a pretty good manual (aimed at
museums) about issues associated with exploiting copyrights, and you
might want to start your thinking there.
As someone pointed out, there is a market for sampling licenses. And
in the important case of Bridgeport Music v. Dimension Films, a court
held that using 2 seconds of a Funkadelic recording was a copyright
violation. But there are some issues that you might want to consider
when thinking about charging for the use of the recording:
- Did the person who transferred copyright to you anticipate that
there might be commercial value in the recordings, or did they make
the transfer in order to foster scholarly use of the material? Would
charging lead to their ill-will?
- You mention that a grant funded the project that created the oral
history. Were there restrictions (or expectations) associated with
the grant on how the recordings would be used?
- What is the mission of your institution? Is it to encourage the
use of historical materials? Would charging for the use conflict
with the mission? Could encouraging creative new uses of archival
materials lead to increased use, new users, etc?
- Is there anything about the recording that could put the
interviewee or the institution in a bad light?
- Could the patron go ahead and use the transcript and/or recording
without your permission under an assertion of Fair Use? You can
still charge them if you want - but keep in mind that what they are
really paying for is the peace of mind that comes from making the
recording with permission, rather than entering the uncertain world
of fair use.
- Similar to the previous point: are you willing to sue the patron if
they used the recording without your permission? If you are not,
then you probably cannot be too demanding on licensing fees. Related
to this: is the interview registered for copyright with the Copyright
Office? If not, then the damages that you could get in a suit are
extremely limited. -- Peter Hirtle
Radio Broadcast Interviews, Nov. 15, 2007
We have a collection of audio CDs made from tape recordings of radio
broadcasts from the U.S. Armed Forces Far East Network, dating from ca.
1950s-1970s. These include interviews with newsworthy persons, such as
the boxer Muhammed Ali. What is the copyright status of these
interviews? -- Thomas J. Wood
Why do you want to know? Do you want to do something with them that
requires the permission of the copyright owner?
Do you have any performance releases? Were the tape recordings
commercially reproduced and distributed? What is the provenance of
the recordings?
I ask all these questions because the answer to your question is far
from simple. The default position would be that the interviewee most
likely owns the copyright, though there is a chance that it is also a
joint work of copyright and the interviewer shares in the
copyright. As far as I know, there is no easy definitive answer to
the question. -- Peter Hirtle
Copyright status of photographs of art in books, Nov. 12, 2007
[A] painter creates an original oil painting, ("A")
which is then photographed by a gallery staff person ("B")
that photograph ("B") then being used in an art history textbook ("C").
Although I'm clear that a publication ("C") would be in the public
domain if it were published in the U.S. before 1923, I'm still
trying to understand if, for example the published version ("C"),
published before 1923, retroactively puts either "A" or "B" also in
the public domain. -- Drew Bourn
So if "B" is nothing but a copy of "A," there is no copyright in
"B." That was the decision in Bridgeman v. Corel, which stated that
a slavish copy of a two-dimensional work does not have the
originality necessary to get copyright protection. (Note that if it
was a copy of a 3D work, then it would have originality and would be
copyrighted.) Museums don't like this ruling, and many have ignored
it - but it is the law (at least in the 2nd Circuit -- NY).
You are also asking what constitutes publication of an art
work. While sometimes offering the work for sale to the public can
constitute publication, in most cases it occurs when the copyright
owner authorizes reproductions of the work. If the art history text
book published the photographs of the art work in the US with the
approval of the copyright owner before 1923, then both the original
art work and the photographs are now in the public domain. They may
also be in the public domain if the copyright was not renewed.
Kelly Swickard was right about the usefulness of groups like the
Artist Rights Society. Of course, they often claim, on behalf of the
artist, copyright on works that are now in the public domain. This
is illegal, but few are ever prosecuted for this. And since they
might take umbrage anyway (not understanding the law as well as you
do now), sometimes it is easier to pay rather than risk a bogus
lawsuit, which would be expensive to defend.
Christine Sundt has a very good web page on copyright and art issues
at http://darkwing.uoregon.edu/~csundt/copyweb/. You might want to
look at that as well. -- Peter Hirtle (who is only providing information, and not legal advice)
IP working group pages maintained by Aprille McKay
Last updated: 17 Jan. 2008
|
