· Archived photographs, documents, and recordings may become inaccessible for legal reasons as well as for technical reasons. Organizations and individuals are increasingly restrictive about using items with questionable legal rights.
· Copyright applies to writings, photographs, music, voice recordings, or other creative expressions and gives the author or creator control of the display, reproduction, distribution, performance, and modifications of the created work. Copyright is automatic and includes unpublished works such as personal letters and family photographs.
· Before 1978, the person initiating and paying for a contracted job such as taking photographs held the copyrights for the works created. Since 1978, the contractor holds the copyrights. However, a contract can transfer copyrights in either case.
· Copyright is a property right that is inherited after the death of the original author or creator, and typically applies for 70 years after the death of the original creator, or for 120 years after the creation of the work if the identity of the creator is unknown or if it was a contracted job before 1978. Copyrights are jointly held by heirs. It does not matter who actually possesses the original items.
· When copyright is jointly held, U.S. law specifies that any one of the joint copyright holders can authorize the nonexclusive reproduction, distribution, distribution, performance, and/or modification of the work. Copyright laws in many other countries require that all joint copyright owners authorize any use of the work.
· Written authorizations that release most or all copyright restrictions can greatly increase the accessibility, use, preservation, and long-term historical value of photographs, documents, and recordings.
· A special synchronization license is legally required to include copyrighted music in slide shows. Obtaining this license for popular music is not practical for most small slide show projects in the U.S. Alternatives include public domain music, music with certain Creative Commons licenses, Royalty free music, or special musical recordings.
· Always ask permission before recording anyone.
In order for archived photographs, documents, and recordings to be reliably accessible for at least 50 years in the future, legal matters need to be addressed as well as technical issues. Historical organizations, publishers, and individuals increasingly will not accept or use items with questionable copyright status. Many copy shops will not make copies of items that could possibly have copyright protection. Websites such as Facebook and YouTube remove materials that are thought to be violating copyrights and close the accounts of repeat offenders. The overall trend is toward increasing caution and restrictiveness about legal matters.
As will become apparent below, the longer a person or family waits to begin managing the legal rights for historical items, the more complicated that process becomes. The primary legal rights that affect historical information are copyright, privacy rights, and publicity rights. This chapter covers basic legal rights that pertain to historical projects. Other aspects and applications of these laws are not considered. Also various concepts are described in this chapter (e.g., public performance) but the subtleties and complexities in determining what exactly is included and excluded in the legal definitions of these terms are not discussed here.
This chapter describes my understanding of the relevant legal rights and what I have done in response to that understanding. The key sources of information are listed at the end of the chapter. I am not an attorney and this chapter is not intended to offer legal advice or replace the expertise of an attorney.
The discussion here focuses on laws in the U.S. Similar laws apply in many other countries and over time the international laws are becoming increasingly consistent because of international trade. However, the relevant laws are not yet internationally consistent and the specific requirements described here cannot be assumed to be true in other countries.
Copyright gives the author or creator control of the display, reproduction, distribution, adaptation, modification, or public performance of original works including photographs, personal writings, and audio recordings. Making digital images of a copyrighted work is a reproduction or adaptation, and posting the images on the internet is a distribution of the work. With limited exceptions, permission from the copyright holder must be obtained for any of the activities or uses listed above and compensation may be required. Copyright is a property right that can be transferred or sold, and is inherited after the death of the original copyright owner. Copyright is federal law that applies uniformly throughout the U.S.
Under current law, copyright automatically applies when a work is created in a form that can be perceived or reproduced. A copyright notice is not required, nor is registration or publication. However, there are advantages to displaying a copyright notice and to registration with the U.S. Copyright Office. The work may be in any tangible media, including electronic. The work does not need to be final. Drafts or interim stages are protected by copyright if they are sufficiently stable to be perceived or reproduced. A conversation, speech, or performance is not protected by copyright unless it is recorded in a media that can be perceived or reproduced and the recording is authorized by the speaker(s) or performer(s). Copyright applies to the expression of ideas in media, not to the ideas themselves.
Copyright does not apply to facts such as names, addresses, scientific laws, and historical events. Thus, historical facts and the interpretation of the facts are not subject to copyright. However, the specific organization and expression of the facts and interpretations are subject to copyright. The same historical facts and interpretations can be organized and expressed by others without violating copyright, but directly copying previous historical writing does violate copyright.
The copyright for a work applies to copies of the original work and is not based on the physical possession of the item. When a person writes a personal letter and sends it to someone, the author retains copyright to the content of the letter and the recipient owns the physical letter. The recipient can show the letter to others and give or sell the letter to someone else, including to a museum or library that will display the letter at one site. However, it is a violation of copyright if anyone makes or distributes copies of the letter without the approval of the author (or subsequent copyright holder). Similarly, a photographer may give or sell a copy of a photograph to someone, but the photographer retains the copyright. The person receiving the copy of the photograph can display the copy but cannot make reproductions unless granted permission by the copyright holder. The person owning an item can sell or give away that specific item without needing the approval of the copyright holder, but the copyright restrictions on reproduction, distribution, and modification transfer with the item.
There are often different copyright holders for different aspects of a work. The copyright for the picture on a post card usually is held by the publisher, but the person who purchases and writes on the card holds the copyright for the writing. In general, the copyrights for writing and for pictures are often held by different people even though they are published together. Musical recordings have separate copyrights for the person(s) who wrote the song, the performer(s) on a particular recording, and the person or company that produced the recording.
Adaptations or Derivative Works
A person who adapts or modifies a copyrighted work must obtain permission from the copyright holder for the original work. The person making the adaptation holds copyright for the parts of the adaptation that are new or different, but is also bound by any limitations in the authorization from the original copyright holder. The legal term derivative work is often used for an adaptation.
There are mixed opinions about whether a digital copy is an adaptation that has a separate copyright. According to a lower court ruling, an exact digital copy of a photograph or document is simply a reproduction that does not involve sufficient originality to be considered an adaptation that merits a separate copyright. Many authorities agree with this ruling; however it is disputed by those who believe that making a good digital image requires some original effort and judgment. The discussion of digitization options in this book is more consistent with the latter view. Unfortunately, more definitive legal precedent from a higher court does not yet exist. Despite the lower court ruling, some organizations attempt to claim copyright for digital copies. However, if the digital images involve some modification of the original work, such as cropping a photograph to focus on a specific area and/or adding some descriptive writing, then copyright as an adaptation is more justified.
Certain fair uses of copyrighted works can be made without permission from the copyright holder. Excerpts from copyrighted works and personal copies of periodical articles can be used for criticism, comments, news reporting, education, research, scholarship, and parody. There is not a precise prescription for establishing fair use. Activities that do not involve commercial profits and do not adversely affect the market for the copyrighted item are more likely to be considered fair uses.
Making and displaying a copy of an irreplaceable historical photograph or document while preserving the original is probably a fair use for a museum that has the original. However, distributing copies or putting a copy on the internet usually would not be a fair use. Copyright law also has special provisions for libraries and archives (but not museums as of 2011) to make “preservation copies” and “replacement copies” under certain limited circumstances. Digital copies made for these purposes can be displayed to patrons on the premises of the library or archive but cannot be made available to the public outside of those premises.
A copyright expires at some point and the original work then enters the public domain. Items in the public domain can be used by anyone and for any purpose. However, that does not mean the items do not cost anything. The owner of a copy of an item in the public domain may charge for selling the copy, but there is no compensation for or permission from a copyright holder.
The basic duration of copyrights is described in this Chapter as the 70/120/95 rule. Under current law, copyright is in effect as follows:
· Through the end of the year 70 years after the death of the author or creator;
· If the author or creator cannot be identified or is anonymous, 120 years after the date the item was created or 95 years after the item was published, whichever occurs first;
· If the item was made as an employee for someone else, 120 years after the date the item was created or 95 years after the item was published, whichever occurs first.
This rule applies to historical items with certain qualifications as described in the following sections. The case of work by employees is discussed more fully in a later section.
For purposes of copyright law, a work is published when copies are offered for distribution to the public with the authorization of the copyright holder, including selling, renting, leasing, loaning, or giving away the item. The fact that an item was offered for public distribution is the key point rather than the actual number of copies that are physically distributed. Recent court cases and an interim rule by the U.S. Copyright Office have held that displaying or posting an item on the internet constitutes distribution and publication for copyright purposes. Viewing an image on the internet requires that a copy is at least temporarily transferred to a remote computer.
Distribution to a specified group such as members of an organization does not constitute publication for copyright purposes. Similarly, public display or performance, including on TV, does not constitute publication because copies of the item are not distributed.
Copyrights for Unpublished Works
Copyright law is relatively simple for items such as family photographs and letters that were never published and never registered with the copyright office. The 70/120/95 rule applies with the qualification that copyright was in effect at least through 2002 for any unpublished work. Of course, 95 years after publication is not applicable for unpublished works. As a typical example, the copyrights for unpublished photographs by a person who died in 1970 expire on December 31, 2040, which is 70 years after the person died.
Copyrights for Published Works
For published works, the simple cases are that works first published before 1923 are in the public domain and works first published after 2002 follow the basic 70/120/95 rule. Copyrights are much more complicated for works that were first published between 1923 and 2002. Fortunately, most historical family photographs and documents were never published and therefore these complications do not apply.
The applicability of copyright depends on when an item was published and whether proper copyright notice was given. Various situations are described below.
· Items first published before 1923 are in the public domain and can be freely used. This includes photographs in books published before 1923.
· Items first published between January 1, 1923 and December 31, 1977 may or may not be subject to copyright. Under the law in effect at the time, copyright began when an item was first published with proper copyright notice and continued for 28 years. If the copyright holder(s) renewed the copyright with the copyright office, it could extend for another 28 years. If the item was initially published without proper copyright notice or the copyright was not renewed before 1964, the item became public domain. These cases may require significant research to determine copyright status. Stephen Fishman (2010) notes in his book on the public domain that 85% of items published between 1923 and 1963 may be in the public domain. For the cases not in the public domain, current law is that copyright applies for 95 years after first publication. The 95 years applies to items published before 1964 and renewed, and to items published with notice between 1964 and 1977.
· For items created before January 1, 1978 but first published between January 1, 1978 and December 31, 2002, the 70/120/95 rule applies with the qualification that copyright remains active through at least December 31, 2047. This includes items created decades or centuries before 1978. However, works published before March 1, 1989 must have had proper copyright notice or else they became public domain.
· For items created before January 1, 1978 but first published in 2003 or later, the 70/120/95 rule applies.
· For items created after January 1, 1978 and published between January 1, 1978 and March 1, 1989 the 70/120/95 rule applies with the qualification that the item must have been published with proper copyright notice or subsequently registered with the Copyright Office. Works published in this period without proper copyright notice and without registration are in the public domain.
· For items created after January 1, 1978 and first published after March 1, 1989, copyright notice and registration are not required and the 70/120/95 rule applies.
Sound recordings are another exception for copyright law. Recordings made on February 15, 1972 or later are covered by federal copyright law. Recordings made prior to February 15, 1972 are covered by state laws. Most sound recordings are currently covered by laws that prevent reproduction or distribution without permission of the creator(s) of the recordings.
Upon the death of a copyright owner, an active copyright is inherited according to a will and/or applicable inheritance law. The inherited copyrights are jointly held if there are multiple heirs. Similarly, the subsequent death of one of the joint heirs results in the copyrights being passed to the heirs for that person. After two or three generations, the copyright ownership can become diffuse and complicated. It is important to remember that these jointly owned copyrights are not affected by who actually has physical possession of the original photograph, negative, letter or recording (or whether the original can be found). Joint ownership of copyright also occurs if two or more people together create a work.
A very important point about joint ownership of copyrights is that in the U.S. any of the individuals jointly holding a copyright can authorize uses of the item without consulting with the other copyright owners. For example, if five descendents inherit copyrights to photographs from their deceased father, any one of the descendents can authorize that a certain museum can display, reproduce, and distribute copies of a photograph. The descendent giving the authorization does not need to get approval from the other four copyright holders.
However, one copyright holder cannot authorize uses or rights that restrict the actions of the other copyright holders, such as granting exclusive rights to a museum that would prevent the other copyright holders from granting rights to other persons or organizations. Exclusive rights that affect all of the joint copyright owners require the agreement of all of them. Also, if a profit results from an authorization by one joint copyright holder, then the authorizing copyright holder is legally required to make arrangements to appropriately share the profits.
One controversial issue is whether a joint copyright owner can authorize uses of an item that waste or destroy the value of the copyright for other joint owners. Authorizing extensive or unlimited free use of an item without compensation would be an example. Copyright experts have varying opinions on this topic (Dear Rich Staff, 2009; Patry, 2007). There have been no influential court cases yet. My impression is that the more valid position is held by those who argue that the concept of wasting or destroying the value of a copyright cannot be meaningfully implemented and that an implied legal duty to generate profits would be inconsistent with the basic premises of copyright law.
Contrary to U.S. law, many other countries require that all joint copyright holders must agree for any copyright authorization. This requirement minimizes potential conflicts with joint copyright owners but will dramatically inhibit use of copyrighted works in many cases with inherited copyrights.
Given the international requirements and the legal uncertainties in the U.S., some copyright attorneys recommend that all joint copyright owners sign any authorization for use and/or develop a contract that specifies agreed upon conditions for authorizing uses. These appear to be the safest practices when they can be done. However, such practices are often not feasible when copyrights have become diffusely distributed to many heirs.
The application of copyright in cases when a work is done under contract or as an employee is another important topic for historical items. The duration of copyright for these works for hire is 120 years after the work was created or 95 years after the work was published, whichever is shorter. There are some important distinctions and changes in what is considered a work for hire.
· Starting in 1978, when a person is hired under contract to do a specific job, such as photograph a wedding or make a portrait, the contractor doing the work owns the copyrights for the works created for the job. However, the contract for the job can have provisions to transfer some or all of the copyright rights to the person(s) who hired the contractor. In the absence of a contract specifically transferring copyright rights, the contractor is assumed to hold the copyright.
· Before 1978, copyright belonged to the person initiating and paying for a contracted project. Various court cases firmly established that the person hiring a professional photographer owned the copyrights to the resulting photographs. Here too, a contract could have provisions to transfer some or all of the copyright rights. In the absence of a contract specifically transferring copyright rights, the person hiring the contractor was assumed to hold the copyright.
· When salaried employees are asked to create a document or photograph as part of their job, the copyright goes to the employer rather than the employee. This has not changed over time.
· Any writings and photographs created by U.S. government employees as part of their jobs are in the public domain. Documents and photographs created by state and local government employees may not be in the public domain.
These provisions have important implications for historical photographs. The copyrights for portraits and wedding photographs taken by a professional photographer prior to 1978 will be held by the person or family paying the photographer, unless a contract specifically transferred copyright. However, for corresponding photographs taken in 1978 or later, the photographer holds the copyrights, unless a contract specifically transferred copyright.
Also, remember that the duration of the copyrights for these contracted jobs is usually 120 years. For example, if a man hired a professional photographer to take his portrait in 1910 the initial copyright was held by the man being photographed. If the man died in 1915, the copyright for the portrait was inherited by the man’s heirs. Copyright applies until December 31, 2030, which is the end of the year 120 years after the photograph was created. However, if the portrait was included in a book published in 1915, the portrait is public domain because it was published before 1923. For comparison, unpublished photographs taken by the man himself would have copyright apply for 70 years after the man’s death (December 31, 1985) or December 31, 2002, whichever is later. A similar portrait made by a professional photographer in 1978 or later is not classified is a work for hire and therefore the copyright is owned by the photographer and applies for 70 years after the photographer’s death. Of course, a contract can transfer some or all of the copyright rights in these situations.
Another case that frequently arises with family photographs occurs when Bill asks Mary to take a photograph of Bill posing with certain others or at a certain location. The photograph is taken with Bill’s camera. From an historical perspective, the original photograph appears in Bill’s photograph collection. The identity of the person who took the photograph will typically not be known years later. Bill would have copyright if the photograph was taken before 1978. The case is less clear after 1978. The possibility that Bill took the photograph using a timer must also be considered. Although this situation technically has some ambiguities, it is very unlikely that a controversy about copyright would occur, particularly if the original negative or slide is in Bill’s collection.
The owner of a photograph or written work can display the item publically in one location without needing specific permission from the copyright holder. This includes locations where admission is charged.
However, a performance or recording of a performance cannot be presented or played in public without permission of the copyright holder. A performance includes music, videos, and book readings. A person who owns a recording of a performance can play the recording for a group of family members and social acquaintances and can loan or rent the recording to another family and their social acquaintances. However, the recording cannot be played in a place open to the public or with a substantial number of people outside normal family and social acquaintances. A radio or TV transmission is considered a public performance. There are certain limited exceptions to these restrictions but they do not affect the use of historical recordings.
Thus a museum or business can display a photograph in a public area without specific copyright permission, but cannot play a musical recording. The right to play music publically is handled by performing rights societies that issue licenses to radio and TV stations, businesses, and other organizations. These societies collect license fees and distribute payment to the copyright holders. The three performing rights societies in the U.S. are the Association for the Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC. These organizations include virtually all copyrighted music. A license allows playing any music in the society’s inventory. The fees depend on the type and size of organization. Museums are one type of organization and the license fee is based on the number of visitors. More information can be found on the ASCAP, BMI, and SESAC websites.
Privacy rights protect the subject of a photograph or writing and are separate from copyright that protects the author or creator. Privacy rights are set by the states and therefore vary from state to state. However, there are general principles that permission must be obtained before invading someone’s privacy or before using their image or name for commercial benefit. These privacy rights usually expire when a person dies.
Photographs of people in a private location such as at home are an invasion of privacy and should not be taken or published without the permission of the people in the photograph. This is particularly true if the photographs show the person or people in an unfavorable light. It does not matter whether the photographs were taken from a public location. Similarly, obtaining or publishing personal records about a person is an invasion of privacy. Photographs of people in public locations such as on a street or in a business open to the public are generally not an invasion of privacy.
Permission must also be obtained for photographs used for commercial benefit. For example, a photograph of a person in a public location should not be used to advertise a business without the permission of the person. Photographs of people in public places can be published without permission for news purposes with wide latitude, but permission is needed for commercial exploitation.
Publicity rights are an extension of privacy rights about commercial exploitation and have been developed primarily for celebrities. In some states permission from the estate of a deceased celebrity is needed if the celebrity’s image or name is used for commercial benefit. The restrictions may apply to commercial exploitation of non-celebrities as well. These laws vary greatly among states.
My experience has been that privacy or publicity rights have not been issues for the great majority of historical photographs and documents. For the relatively few cases when a photograph or document revealed personal information about a living or recently deceased person, I maintained the electronic copy for family use only. Also, the people I have worked with have had a favorable attitude toward any public display and sharing of their historical photographs, including in commercial situations. However, these cases have not involved photographs of famous people. If a photograph includes a famous person and is going to be used in a way that could be considered commercial, then the publicity rights should be considered.
Audio recordings have more legal requirements than photographs and writings. The additional laws include provisions for wiretaps, eavesdropping, and copyrights specifically for sound recordings.
For historical recordings the wise and ethical rule is to always obtain permission from those being recorded. Covert recordings undermine trust, raise complex legal issues, and are not necessary. My experience has been that people are more comfortable with public display of their photograph than with playing audio recordings of them, particularly recordings of informal conversations. Covert recordings can be a major breach of personal trust in addition to the legal liabilities.
In some states eavesdropping laws require consent from all the people being recorded (Reporters Committee for Freedom of the Press, 2012). Consent from at least one of the participants being recorded is required in all other states.
Verbal consent may be adequate for informal recordings, and ideally would be included in the recording. Written permission is appropriate for more formal interviews or narratives and for informal recordings that may be used and shared extensively.
In addition to eavesdropping laws, copyright laws must be considered. Formal interviews are normally subject to copyright. However, there are differing legal opinions about whether a typical spontaneous informal conversation about factual matters has sufficient originality for copyright to apply. Also, if a person is recorded without giving authorization, the person does not hold copyright. In addition to copyright and eavesdropping laws, the legal issue of invasion of privacy is also applicable.
For formal interviews, the most common recommendation is to assume that the people talking in an audio recording hold copyright to their expression or narration of information and the person or organization operating the technology for making the recording holds a copyright for the resulting sound recording. Approvals from the copyright holders for both aspects of the recording are needed for use of the recording. As noted earlier, the actual facts of a nonfiction historical interview are not subject to copyright, but the recorded expression of the facts is subject to copyright. The U.S. Copyright Office has the policy that the interaction between the interviewer and the person being interviewed results in both jointly owning copyright for an interview “in the absence of an agreement to the contrary” (Neuenschwander, 2009, page 66). However, firm legal precedent has not yet been established for joint ownership and some uncertainty is typically noted in legal discussions about interviews. The implications of joint ownership were described earlier.
My usual safe practice is to assume that these principles for formal interviews also apply to recordings of more spontaneous informal conversations. Here too, I have not found clear legal precedent.
If the recording may be extensively used, the best course of action is to have written agreements stating the expectations and rights of all the individuals involved. A written agreement is optimal if the recording is to be reliably and widely available over the long-term. Even without a signed written agreement, the documentation for a recording should state any verbal agreement to assure that the agreement is known and can be complied with over the long-term. Music production has more complicated legal rights because different people or companies have the rights for specific roles in the overall composition, performance, production, manufacture, and distribution of a recording.
The possibility of defamation occurs with audio recordings of people speaking. Publication or distribution of information that is both false and unfavorable to a person can result is a lawsuit for defamation. Defamation does not apply for a person who has died. The distribution of a recording should be carefully considered if there is any question about the validity of a negative comment about a living person.
The use of music in a slide show or video requires a special synchronization or sync license that allows the music to be synchronized with visual images. The usual permissions for a CD, a downloaded music file, or a license from a performing rights society do not authorize incorporating the music in a recording of an audiovisual program. Sync licenses are currently obtained from the music publisher for each song.
Sync licenses in the U.S. currently are too complicated and expensive for most small projects. The Music Bridge LLC specializes in music rights and advises on its website (Powell, 2011) that the minimum size project for licensing popular music would be to distribute at least 2500 copies and have a music budget of at least a few thousand dollars. At present sync licenses are negotiated individually and the effort required by music publishers is not cost effective for small projects.
There are a few options for legally obtaining music at more reasonable prices for small slide show projects.
· Public domain music recordings are increasingly available. Search the internet for public domain music downloads. At present, classical and blues are the most common but other types of music can be found.
· Music is increasingly available using the copyright licenses from the Creative Commons organization. Some of these licenses make music freely available for non-commercial uses and other licenses allow commercial uses. The Creative Commons licenses that allow derivative works include authorization for synch licenses.
· Royalty free music websites and music production library websites offer music with synch licenses at much lower prices. These are not hit songs by major performers, but some useful music can be found. The number of websites and amount of music is rapidly growing, but often focuses on modern rather than historical music. Shockwave-sound.com is one of the easiest sites to use, has clear information about prices and legal rights, and supports searches for historical music.
· Performance of original or public domain music may be obtained directly from local singers and musicians under an appropriate contract for copyright. Remember that separate copyrights apply for the musical composition and for a particular performance, so even if a song is in the public domain, the performance by a particular person or group still has copyright protection that will need to be addressed in a contract.
At present, a slide show that will be seen only by family members and close friends is unlikely to attract the attention of those enforcing copyrights. As attorney Stephen Fishman (2010) notes in his book on the public domain “The chances of discovery are virtually nil if you use a work for your personal use or make it available to only a restricted group of people” (page 13). However, if a slide show could be placed on the internet or otherwise distributed more broadly, then the likelihood of legal actions greatly increases. Controlling the distribution of a slide show can be difficult with current technology. Increasingly sophisticated methods for finding copyright violations can be expected in the future. A slide show that is low risk today may be much higher risk in the future.
The Need for Simple Sync Licenses
Sync licenses for small slide show and video projects are an opportunity for profits that the music industry in the U.S. has failed to recognize. The Music Bridge website states that they get several dozen inquiries each month from people attempting to legally obtain popular music for small home-based projects. Performance rights management in the UK has implemented simple, reasonably priced sync licenses sold over the internet (http://www.prsformusic.com/users/recordedmedia/dvdsanddigitalmedia/Pages/LimitedManufactureLicence(LM).aspx ).
Hopefully, the recording industry in the U.S. will also develop similar simple, reasonably priced licenses for small projects. Unfortunately, thus far the recording industry in the U.S. has devoted great effort to filing copyright lawsuits against individuals and to lobbying for additional copyright enforcement, but has been very slow to adapt to new technology and to provide copyright licenses appropriate for new technology. An internet search for “recording industry lawsuits” provides insight into the corporate values for the recording industry in the U.S.
Cases when the copyright holder(s) cannot be identified or found are called orphan works. Obviously, permission cannot be obtained to use such works. A study by the U.S. Copyright Office in 2006 (see references) reported that orphan works are a serious and increasing problem. Historical items or information are not used because of the legal uncertainties. Legislation was proposed to reduce the risk from using orphan works but the legislation was not enacted due to concerns by certain groups that copyrights would be weakened. Practical advice on orphan works can be found in “Orphan Works: Statement of Best Practices” by the Society of American Archivists (2009). Peter Hirtle (Hirtle, Hudson, & Kenyon, 2009) also offers practical advice on copyright risk management in making decisions about using orphan works.
Although the general trend appears to be increasing caution in using orphan works, the risks are low in some cases. The risks are particularly low for non-profit uses of items that do not involve famous people and that can be easily reversed, such as display on a website. On the other hand, cases that could be construed as for profit and involve famous people are much higher risk, as are situations that are difficult to reverse, such as publication in a book.
One strategy that is sometimes used to reduce legal risk is to display items on the internet in context of asking for information about the items. This strategy increases the likelihood that the public display of the items beyond the premises of the organization would be considered a fair use that does not require permission from the copyright owner. Also, some organizations display and distribute items with a warning that anyone using an item is responsible for determining copyright status. While this warning may be useful to potential users, I do not see how it reduces the legal risks from the organization’s unauthorized reproduction, display, and distribution of copyrighted works.
For most readers of this book the primary goal will be to reduce or eliminate copyright restrictions so that others can reliably access and appreciate historical information. Given the complexity of copyright law, historical items can easily become inaccessible for legal reasons. Most organizations managing historical items will not be able to devote the significant resources needed to resolve copyright issues. In many cases the copyright issues may not be confidently resolved even after great effort. Formal policies of rejecting any items with uncertain copyright are becoming increasingly common.
Written authorizations or licenses that release copyright restrictions can greatly increase the use, preservation, and long-term value of historical photographs, documents, and recordings. Without such documented authorizations, the likelihood of restrictions on access increases in the decades after a work was created and greatly increases after the death of the original copyright holder. As noted previously, making, using, and distributing copies of historical items is an important strategy for preserving the originals as well as for sharing historical information. Written authorizations that specify your intentions are the best way to assure that historical items will be reliably accessible 50 years in the future.
How to Release Copyrights
The non-profit Creative Commons website has various copyright licenses and associated processes that emphasize sharing and using copyrighted works rather than restricting access. The licenses are intended to release some or all copyright restrictions. One license puts a work in the public domain to the extent possible. However, these licenses have certain disadvantages for historical items. The actual wording of the licenses is lengthy legal jargon that may make some people hesitant to agree, particularly without involvement of an attorney. Also, the public domain license presumably requires agreement by all joint copyright holders, which can be very difficult after copyrights have been inherited by multiple generations of heirs.
Simple statements can also be used to put a work in the public domain, but there are legal uncertainties. Stephen Fishman (2010) notes in his book on the public domain that there is not a legally prescribed process and an author or creator can simply replace the usual copyright notice with “This work is dedicated to the public domain.” However, the Creative Commons website states that “Dedicating works to the public domain is difficult if not impossible for those wanting to contribute their works for public use before applicable copyright or database protection terms expire. Few if any jurisdictions have a process for doing so easily and reliably” (https://creativecommons.org/about/cc0). Until laws specify a process for dedicating works to the public domain, a listing of allowed uses as in the Create Commons licenses may be more reliable than a simple dedication to the public domain. Also, the simple dedication to the public domain presumably requires agreement by all joint copyright holders.
Another option is to develop a written authorization that lists allowed uses in relatively plain language and without using the term public domain. This strategy may be more easily accepted by an average person and is a compromise between a simple dedication to the public domain and the complex legal jargon of the Creative Commons licenses. In addition, this strategy can easily be adapted to a particular situation and does not necessarily require that all joint copyright owners abandon all of their copyright rights as occurs when a work is dedicated to the public domain.
As discussed earlier, the optimal practice is for all copyright owners to sign an authorization or license for uses. That is easy when copyright is held by the original creator of the work, but may not be reasonably possible after a couple of generations of inheritance. The rapidly increasing complications with each generation of heirs bring into focus the importance of the original creator managing copyrights whenever possible.
If it is not reasonably possible for all joint copyright owners to sign an authorization, one of the joint owners can exercise his or her right to authorize uses. As described earlier, this practice has more legal uncertainties and international limitations, but it is consistent with U.S. law. My working assumption is that the risk of legal complications is very low for typical family historical items with little monetary value. However, if the items have significant market value and potential for conflict among joint copyright owners, seeking advice from an attorney specializing in copyrights would be the safest practice.
Example Authorization for Digital Images of Photographs and Documents
Panel 9.1 has an example of an authorization form I made and have used for photographs and documents. Note that the authorization specifically applies to the electronic files created for a particular history project and does not alter the copyrights for the original items or for other copyright holders who have not signed the form. I also sign the authorization in order to handle any copyrights I may have obtained by making the electronic copies. For example making an image that is cropped to emphasize certain parts of a photograph would be an adaptation subject to copyright. Also, as noted earlier, the law is currently not completely resolved on whether electronic copies made using custom options are adaptations subject to new copyright.
With this strategy, the original items may be kept by the family or can be donated to a museum or library for optimal preservation. Similarly, copies of the digital images can be kept by the family and can also be donated to one or more museums, libraries, or historical websites.
A signed authorization should be scanned and the electronic image placed in a legal folder of the electronic archive. A copy of the authorization would be distributed as part of the archive. Ideally, the original signed authorization would be available indefinitely, such as on file in a historical organization that has copies of part or all of the archive.
This was an umbrella authorization and the documentation for each image addressed how the specific image fit into the authorization. Another option would be to list each item that is included in the authorization, however, that becomes more difficult when a large number of items are involved or items may be added later. The statement that the authorization applies worldwide was included because items on the internet can be accessed throughout the world.
Panel 9.1. Example Authorization for Photographs and Documents
AUTHORIZATION OF USE
I authorize and grant license that the electronic images made by Jim Kennedy of photographs, slides, negatives, writings, and other documents that relate to the history of Yoder, Kansas and for which I hold sole or joint copyright may be displayed, reproduced, distributed, and modified by anyone and for any purpose without permission, attribution, or compensation. This applies to any reproductions or works derived from these electronic images using any media, and includes electronic images of items from the estate of my father David M. Beachy to which I am an heir to the copyrights. This authorization applies worldwide for the duration of the copyrights.
As creator of the electronic images of items indicated above, I authorize and grant license that these electronic images created by me and works derived from these images using any media may be displayed, reproduced, distributed, and modified by anyone and for any purpose without permission, attribution, or compensation. This authorization applies worldwide for the duration of the copyrights.
Four examples of the documentation or metadata for individual photographs are given below. The individual documentation has a short one or two line summary of the legal status and a longer explanation of the factors and logic that were used in determining the legal status. The date that the legal rights were assessed is included. This date can be very useful in managing updates to the documentation as more information becomes available and in handling changes in copyright law that will likely occur in the future. As described in Chapter 4, Legal Rights are a section of the standard documentation file for an item in a digital archive.
Panel 9.2. Legal Documentation for Photograph 1.1 in Chapter 1
(and any other photograph by taken by Dave Beachy)
Legal Rights: (as assessed July 12, 2011) Heirs to Dave Beachy hold copyright through 2060. Authorization has been given for any use of this digital image by anyone.
Copyright for this photograph taken by Dave Beachy applies for 70 years after his death in 1990. Vernon Beachy is Dave’s son and is an heir to his estate.
This digital image was created by Jim Kennedy from the original negative as part of a project on the history of Yoder, Kansas. In 2011, Vernon Beachy and Jim Kennedy signed an authorization that the electronic images created by Jim Kennedy relating to the history of Yoder, Kansas and works derived from those images using any media may be displayed, reproduced, distributed, and modified by anyone and for any purpose without permission, attribution, or compensation. The authorization applies worldwide for the duration of the copyright. The original signed authorization is on file with the Reno County Historical Museum in Hutchinson, Kansas.
Panel 9.3. Legal Documentation for a Studio Portrait of Dave Beachy and his Wife Taken in 1919
Legal Rights: (as assessed July 6, 2011) Heirs to Dave Beachy hold copyright through 2039. Authorization has been given for any use of this digital image by anyone.
When the photograph was taken in 1919, it was a work for hire, which means copyright for an unpublished work applies for 120 years from when the photograph was taken and the copyright was held by the person initiating and paying for the photograph, presumably Dave Beachy (unless a contract is found that transferred copyright). Vernon Beachy is Dave’s son and is an heir to his estate.
This digital image was created by Jim Kennedy from an original print as part of a project on the history of Yoder, Kansas. In 2011, Vernon Beachy and Jim Kennedy signed an authorization that the electronic images created by Jim Kennedy related to the history of Yoder, Kansas and works derived from those images using any media may be displayed, reproduced, distributed, and modified by anyone and for any purpose without permission, attribution, or compensation. The authorization applies worldwide for the duration of the copyright. The original signed authorization is on file with the Reno County Historical Museum in Hutchinson, Kansas.
Panel 9.4. Legal Documentation for a Photograph Taken in 1890 by an Unknown Photographer
Legal Rights: (as assessed July 6, 2011) Public domain.
For an unpublished photograph by an anonymous photographer, copyright applies for 120 years after the creation of the photograph, which means this 1890 photograph became public domain on January 1, 2011.
Panel 9.5. Legal Documentation for a Paper Copy of a Photograph Taken in the 1920s by an Unknown Person
Legal Rights: (as assessed July 6, 2011) Anonymous orphan work.
This photograph was in Dave Beachy’s collection but the original negative has not been found. This photograph may have been taken by someone who gave a copy to Dave, or possibly by Dave himself.
For anonymous orphan works such as in Panel 9.5, the best that can be done is to describe the situation so that the potential risks in using the photograph can be evaluated. The main threat of legal challenge would be if a person who possessed the original negative objected to the use of the photograph. In the absence of other information, possession of the original negative would be accepted as evidence for the creator and inheritance path for a photograph.
Example Authorization for Audio Recordings
This is an example of an authorization form I have used for audio recordings. With this authorization, the person being recorded retains copyright and can use the recording as well as allowing others to use it.
This is different than many oral history programs that ask the person being interviewed to formally transfer all copyright rights to the oral history program. A contract that “transfers copyright ownership,” “assigns copyright,” or “grants exclusive rights” restricts use of the recordings, including by the person who was interviewed. Such restrictions on access, distribution, and use of the information appear to me to be contrary to the beneficial sharing of historical information that was freely offered. Anyone who is asked to sign such a contract should carefully consider whether this reduced accessibility is consistent with their intentions and purposes in providing the information, or whether an alternative that increases rather than decreases accessibility would be more appropriate. A contract can easily be developed that grants the needed “nonexclusive” rights to the oral history organization, while maintaining the rights held by the person being interviewed.
Note that this authorization includes a provision that any editing or modification does not significantly alter the meaning expressed in the recording. This is intended to prevent someone from manipulating a recording to make it appear that the speaker endorsed a product or a political position.
Panel 9.6. Example Authorization for Audio Recordings
AUTHORIZATION OF USE
I authorize and grant license that the electronic audio recordings made by Jim Kennedy of me speaking about topics that relate to the history of the town and people of Yoder, Kansas may be played, reproduced, transcribed, distributed, and edited by anyone and for any purpose without permission or compensation, provided that any editing or modification does not significantly alter the meaning expressed in the recordings. This authorization applies to any reproductions or excerpts or other works derived from these electronic recordings using any media, and applies worldwide for the duration of the copyrights.
As creator of electronic recordings indicated above, I authorize and grant license that these electronic recordings created by me and works derived from these recordings using any media may be played, reproduced, transcribed, distributed, and edited by anyone and for any purpose without permission or compensation, provided that any editing or modification does not significantly alter the meaning expressed in the recordings. This authorization includes my speaking in the recordings, and applies worldwide for the duration of the copyrights.
Example Authorization for an Original Work
I have also applied this basic wording for authorizing use of an original work such as a written publication. This applies to the original items rather than to digital images of the items. In these cases, only the authorization and signature of the original creators is needed.
Panel 9.7. Example Authorization for a Published Work
AUTHORIZATION OF USE
We authorize and grant license that the publication Yoder 1889 – 1989 that was created by Vernon Beachy and Kathryn Troyer for the Yoder, Kansas centennial in 1989 may be displayed, reproduced, distributed, and modified by anyone and for any purpose without permission, attribution, or compensation. This applies to any reproductions or derived works using any media. This authorization applies worldwide for the duration of the copyright.
A person who owns an item can place requirements upon the use of the item through a legally binding contract that is not based on copyright. For example, a person could agree to donate or loan an item to a museum under the condition that the museum signs a contract that places certain requirements on the use of the item. The requirements are based on the contract and apply whether or not the person donating the item also holds copyright.
Various types or degrees of restrictions can be required through copyright or contracts. One common option is a requirement that any use of an item include an attribution to the creator or copyright owner. Another common option is that specific permission is required for commercial uses, but not for non-commercial uses. Another option is that the item can be reproduced and distributed but cannot be modified without permission.
It appears to me that these types of restrictions do more harm than good for historical items over the long-term. Any restriction that requires permission will usually become increasingly burdensome and prohibitive after the death of the original creator or copyright holder. For example, restrictions on the modification of an item could limit the ability to crop or otherwise enhance a photograph for display. Restrictions on commercial uses are primarily implemented by people who are attempting to profit from their historical items. That may be feasible while the person is alive, but typically becomes increasingly problematic after the person’s death. For historically significant items, the complications in trying to apply such restrictions 50 years in the future are not worth the comparatively small, transitory benefits. After all, commercial uses of historical items ultimately promote historical information. From that perspective, commercial uses should be encouraged rather than restricted.
Those who seek attribution or recognition for historical items often are collectors, museums, or libraries that currently have a copy but did not create the item and do not hold exclusive copyright or any copyright rights. Attribution tends to become more focused on promoting those who collect historical items rather than recognizing the original creators. Over the decades different people or organizations may seek recognition for an historical item, which greatly complicates any requirement for attribution.
A requirement that an item can only be used when attribution is made to the original creator may be appropriate in certain cases. This is most appropriate when implemented by the original creator and thus would apply, for example, to recent photographs that may be of historical interest in the future. The Creative Commons website has a copyright license specifically for the case that the only restriction on use is that attribution must be made to the original creator. The example authorization forms above could easily be modified to add a provision like “provided that attribution referencing the original work is given as follows …” The specific form for referencing the work would be specified. However, these requirements for attribution have limited use for a collection of photographs from diverse sources with varying degrees of information about the original photographers.
It is good practice to identify the photographer for an historical photograph whenever possible, but a mandate for attribution may be limiting for historical purposes. Such a mandate can complicate certain types of displays, such as slide shows. Well funded professional operations will typically handle attributions appropriately whether mandated or not. Lower budget, more amateurish operations usually do the best they can but may not always handle attributions optimally. Those cases can be viewed with some leniency in context of the overall goal of making historical information available.
The U.S. Copyright Office provides valuable information on their website, including information in circulars at http://www.copyright.gov/circs.
The references below marked with an * were particularly useful.
Committee on the Judiciary Subcommittee on Patents, Trademarks, and Copyrights, 1960. “Copyright Law Revision: 13. Works Made for Hire and on Commission.” Accessed February 25, 2012 at http://www.copyright.gov/history/studies/study13.pdf.
Copyright Office, 2006. “Report on Orphan Works” accessed April 9, 2011 at http://www.copyright.gov/orphan/orphan-report-full.pdf.
Dear Rich Staff, 2009. “Can a Co-Writer License at Less than Market Value?” accessed February 26, 2012 at http://dearrichblog.blogspot.com/2009/03/can-co-writer-license-at-less-than.html.
Fishman, Stephen, 2008. The Copyright Handbook: What Every Writer Needs to Know, Tenth Edition. Published by Nolo in Berkeley, CA.
*Fishman, Stephen, 2010. The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More, Fifth Edition. Published by Nolo in Berkeley, CA.
Hart, Terry, 2011. “Marvel v. Kirby: Work for Hire and Copyright Termination.” Accessed February 25, 2012 at http://www.copyhype.com/2011/08/marvel-v-kirby-work-for-hire-and-copyright-termination/.
*Hirtle, Peter B., 2011. “Copyright Term and the Public Domain in the United States” accessed April 16, 2011 at http://copyright.cornell.edu/resources/publicdomain.cfm.
*Hirtle, Peter B.; Hudson, Emily; & Kenyon, Andrew T., 2009. Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums. Published by Cornell University Library in Ithaca, NY. Also available for free download at http://ecommons.cornell.edu/bitstream/1813/14142/2/Hirtle-Copyright_final_RGB_lowres-cover1.pdf.
Krages, Bert, 2007. Legal Handbook for Photographers: The Rights and Liabilities of Making Images, Second Edition. Published by Amherst Media in Buffalo, NY.
National Music Publisher’s Association, 2009. “Music Publishing 101” accessed April 22, 2011 at https://web.archive.org/web/20120106222516/http://www.nmpa.org/pdf/legalissues/Music101-NMPA-May2009pdf.pdf
*National Park Service, 2006, Museum Handbook Part III, “Chapter 2: Legal Issues” accessed April 23, 2011 at http://www.nps.gov/museum/publications/MHIII/Jan07LegalIssues.pdf.
Neuenschwander, John A., 2009. A Guide to Oral History and the Law. Published by Oxford University Press in New York, NY.
*Nimmer, Melville B.; & Nimmer, David, 1978-2012. Nimmer on Copyright. Published by Mathew Bender in New Providence, NJ.
Patry, William, 2007. “A Blazing Waste” accessed February 26, 2012 at http://williampatry.blogspot.com/2007/04/blazing-waste.html.
Powell, David, 2011. “Small Business Videographer” accessed April 22, 2011 at the Music Bridge websitehttp://www.themusicbridge.com/clearance-and-license/small-business-videographer-brief.
Reichman, Jonathan D., 2011. “Right of Publicity – United States” accessed April 16, 2011 at http://www.kenyon.com/~/media/Files/Publication%20PDFs/2013/GTDT_RightofPublicity_US_2014.ashx.
Reporters Committee for Freedom of the Press, 2012. “Reporter’s Recording Guide. A State-by-State Guide to Taping Phone Calls and In-Person Conversations” accessed September 3, 2012 at http://www.rcfp.org/reporters-recording-guide/introduction.
Schmidt, Paul, 2011. Secrets of ProShow Experts. Published by Course Technology, CENGAGE Learning in Boston, MA. Pages 175-178 cover legal issues.
Society of American Archivists , 2009. “Orphan Works: Statement of Best Practices” accessed April 9, 2011 at http://www.archivists.org/standards/OWBP-V4.pdf.
Sunstein, Kann, Murphy & Timbers LLP, 2002. “Flowchart for Determining when U.S. Copyrights in Fixed Works Expire” accessed June 28, 2011 at http://sunsteinlaw.com/practices/copyright-portfolio-development/copyright-pointers/copyright-flowchart/.
Vogele, Colette; Garlick, Mia; & The Berkman Center Clinical Program in Cyberlaw, 2009. “Podcasting Legal Guide” accessed August 29, 2012 at http://wiki.creativecommons.org/Podcasting_Legal_Guide.
[Version of 10/22/2015 (updated links)]
Chapters in the Book
9. Copyrights and Other Legal Rights
This website and book were developed by Jim Kennedy.Email: firstname.lastname@example.org
© 2012, 2015 James E. Kennedy