At 04:48 PM 6/8/2006, Heather Crocetto wrote:
>Hello, Everyone!
>1) As a local history collection, we have a ton of anonymous photos,
>usually of buildings or general outdoor scenes. <snip> My question
>is: do we consider those anonymous photos published works?
I agree with Carlos - I would think you should still consider them to
be unpublished unless there is some indication that they were
published under the authority of the copyright owner.
What you are describing is a classic example of "orphan works":
copyrighted works where either the copyright owner is not known or
cannot be located. The Copyright Office issued a report last year
(to which SAA contributed) on the problem of orphan
works. Legislation has been introduced in the House to make it
easier to use orphan works, and SAA is working with other groups to
address some of the problems with the legislation as drafted. (This
sort of activity is another good reason why all archivists should
support their national association.)
BTW, it has been independent photographers who have been the most
concerned about orphan works legislation. They are worried that new
orphan works legislation might encourage the whole say duplication of
copyrighted photographic works, without payment to the
photographer. Their concern is one reason why it is especially
important for us to be careful when reproducing photographic images.
In this regard, I can't let some of the comments from last week
pass. If you are asked to reproduce a photograph for a user and you
have no reason to believe the reproduction is for any purpose other
than private study, scholarship, or research, then there is a good
chance that the use is a fair use: permission from the copyright
owner to make the reproduction would not be required. But if you
want to digitize an image an put it on your web site, suddenly you
have become the user. Because your use would not be for private
study, scholarship, or research, it is much harder to make an
effective fair use argument. Perhaps you could say that you are
building an index to your collection - but Google is being sued by
bunches of authors and publishers precisely because of this argument.
In short, we can put the onus on the researcher for copyright
clearance for any use beyond personal use - but that means that we
also may need to clear copyright before we make things generally
available on a web site.
> 2) After 9/11, our fire department received dozens of letters and
> cards from schoolchildren across the country. Many of these were
> hand-drawn, with text and illustrations. For the 5th anniversary of
> 9/11, we are planning to display some of these in our room, and we
> would also like to put together an on-line exhibit. Of course, our
> deed of gift was from the Fire Department, and the copyright for
> the cards would be held by these kids, the creators. Right? I am
> assuming an on-line exhibit would be considered fair use...
I am much less sanguine than Carlos Ovalle that your proposed use of
these letters and cards would be considered to be a fair use; I could
construct a fair use argument that works the other way. An analogy
might be to the letters published in the new book "Dear Mr.
President." From my reading of the notes, it looks like the editors
got permission to publish many of the copyrighted letters sent to
previous presidents from citizens. It could also be argued that you
should get permission to publish the letters from the children (which
I am assuming were not sent with the expectation that they would be
made public).
The good news is that the possibility of a law suit is
small. Section 412(1) of the Copyright Act says that unless
unpublished materials are registered with the Copyright Office prior
to an infringement, the copyright owner cannot sue for statutory
damages or attorney's fees. This takes away a lot of the monetary
incentive to sue; the other major driving force might be privacy
concerns. In short, your proposed online exhibit may be illegal, but
the likelihood that you will be sued is low. And if you are sued,
the damages that can be held against you are likely to be low. You
just have to decide if you like this type of argument.
Peter B. Hirtle
IRIS Technology Strategist and
CUL Intellectual Property Officer
Note New Mailing Address & Fax:
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Ithaca, NY 14853-5301
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