Category Archives: Copyright Information Notes

A MOOC on copyright

It has taken a while to get here, but I am happy to be able to announce that two of my colleagues and I  will be offering a four-week MOOC on copyright designed to assist teachers and librarians deal with the daily challenges they encounter in regard to managing what they create and using what they need.

The MOOC will be offered on the Coursera platform and will run for the first time starting July 21.  It is available as of today for folks to sign up at

It has been a great pleasure working with Anne Gilliland from the University of North Carolina Chapel Hill and Lisa Macklin from Emory University to create this course.  I hope and believe that the course is much stronger because the three of us worked together than it could possibly have been if any one of us did it alone.

This course will be four weeks in duration and focuses on U.S. copyright law.  While we are well aware of all the MOOC participants from other countries — and welcome folks from all over to join us — we also wanted to keep the course short and as focused as possible.  We hope perhaps to do other courses over time, and a more in-depth attention to international issues and to how copyright works on the global Internet might be a good future topic.  In the meanwhile, this course deals with the U.S. law and the specific situations and issues that arise for librarians and educators at all levels.

We especially hope to attract K-12 teachers, who encounter many of the same issues that arise in higher education, and who often have even fewer resources to appeal to for assistance.  That is one reason for the summertime launch.

Another point about the focus in this course — our goal is to provide participants with a practical framework for analyzing copyright issues that they encounter in their professional work. We use a lot of real life examples — some of them quite complex and amusing — to help participants get used to the systematic analysis of copyright problems.

For many in the academic library community, the winding up of the courses offered by the Center for Intellectual Property at the University of Maryland University College has left a real gap.  This course is intentionally a first step toward addressing that gap.  It is, of course, free, and a statement of accomplishment is available for all participants who complete the course.  We hope this can assist our colleagues in education with some professional development, and maybe, depending on local requirements, even continuing education requirements.

We very much hope that this course will be a service to the library and education community, and that it provides a relatively fun and painless way to go deeper into copyright than the average presentation or short workshop allows.

Of songs and chairs, or why do we need a public domain

I recently received an email from an author asking me if I would write a post about why we need a public domain.  Specifically, the questioner asked me why some things pass into the public domain while others do not; his example was that if you write a song, it eventually becomes PD, but if you make a chair you can keep it forever and “continue to draw enjoyment from it.”

It is understandable that the public domain is a source of annoyance and bewilderment to many creators.  Their creations often seem like their children, and the expiration of copyright like an act of snatching those children away.  My correspondent suggested that more people do not challenge the public domain “because everyone likes free.”  But as I hope to suggest in this public answer to the question, the public domain is not free at all; it is purchased at the price of the copyright monopoly. The two things are different sides of the same coin.  Were it not for the state-granted exclusive rights in copyright, there would be no need for the public domain.  And we can imagine such a social arrangement; I just do not believe that most creators would think of it as an improvement.

We can begin with a deceptively simple question: Why is a chair different from a song?  There are two reasons that matter here, I think.  The first is that the song is intangible, which means that it is, in economic terms, “non-rivalrous.” and non-exclusive.  That is a fancy way of saying that multiple people can possess an intangible good at the same time.  George Bernard Shaw is credited with having expressed this truth succinctly:

If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple.  But if you have an idea and I have an idea and we exchanges these ideas, then each of us will have two ideas.

Obviously I can sing a favorite song without depriving anyone else of that pleasure, just as books can be printed in multiple copies so that many people can enjoy the same work without disturbing each others’ enjoyment.  Only one person can sit in a chair at the same time, however (usually, at least).

The other difference is that a chair, as a piece of tangible property, is bought and sold on a basically unregulated market.  The chair maker sells her creation to whomever she can find, and once she does so, she surrenders control of it entirely.  If another carpenter wants to copy it, he can do so and try to sell his copies.  If he charges less, the competition will benefit chair buyers but not chair makers, since it will probably drive prices down.  That is simply the chance one takes in a free market.

The market for intangible goods is not a free market, however.  It is controlled by a state-granted monopoly called copyright. That is, the state gives a copyright holder rights that makers of other types of goods do not get.  The most obvious one is protection against copying.  The chair maker takes her chances in an open market, but the song writer benefits from a protected market that virtually eliminates competition for the goods he wants to sell.  No one is allowed to make copies of his song and sell it for less, or to perform it in public without his permission, and those prohibitions are enforced by our courts.  The reason for this is the fear that if intangible property were subject to a free market, it would be too easy to make copies of songs or books or movies and sell them for less, just as carpenters are allowed to do.  This would be good for consumers, of course, because it would lower prices, but it is felt that it would so reduce the incentive for creators to create that we would suffer a shortage of poems and songs and films.  Thus we give extra rights — rights that come with a social cost — to people who create intangible goods, and we call those rights “copyright.”

There is a clear relationship between these extra rights we give to copyright holders, that other creators and sellers of goods do not have, and the need for a public domain.  Imagine for a minute that we gave similar protection against copying to chair makers.  Eventually the ability to make a new chair would evaporate, since all of the possible designs that could serve the chair function would have been done by others, and all new chairs would be infringing.  How could we solve this problem?  By declaring that after a certain period of time — a period long enough for the chair maker to profit from his creation — older chairs would become free for others to imitate.  This “public domain” for chairs would be required to keep up the supply of places to sit, if we decided to grant a state-enforced monopoly in chair design similar to copyright.

So the public domain is a required part of a system that allows creators to have monopoly control.  It reduces the social cost of the monopoly by allowing less expensive editions of books or songs after that period during which an author or songwriter has the opportunity to make a profit.  Remember that a chair maker can profit only once, when she sells the chair she has made.  She must keep making chairs if she is to sustain a living.  An author, on the other hand is allowed to profit exclusively during his entire lifetime for writing just one book, and even to pass that exclusive right to make a profit on to his children and, probably, grandchildren (based on a copyright term of life of the author plus seventy years).  This obviously has a social cost; would J.D. Salenger have written more great novels if he had not been able to make a fortune over the 6o years of his life after Catcher in the Rye from sales of just that one book?

The most onerous cost of the copyright monopoly would be this potential reduction in new creativity.  The creation of new works depends in so many cases on building upon things that have gone before.  Shakespeare copied freely from earlier sources, just as George Harrison copied, albeit unconsciously, when he wrote “My Sweet Lord.”  New intellectual property is always created “standing on the shoulders of giants,” and the public domain is a way to ensure that the copyright monopoly does not become a check on new creation rather than the incentive it is supposed to be.  This is why the Constitution, in the clause that authorizes Congress to grant a copyright monopoly, stipulates that that monopoly be “for a limited time.”  The public domain is a required part of the social and legal system of copyright protection.

As I said at the beginning, it is possible to imagine an alternative social system.  Suppose we decided that we wanted neither exclusive rights (the copyright monopoly) nor the public domain. Instead, as a society we decided that authors and songwriters should be on the same footing as carpenters and everyone else who created tangible goods; all should compete on an equal footing in a free market.  In the short term, this might be good for consumers.  Songwriters would have to sell their songs once for the most money they could get, since their ability to make continuing profits over time would diminish.  Companies and consumers would then be free to either share the song freely or undercut the sale price of competitors, so it would be easier and cheaper to obtain music, and the threat of litigation over sharing would vanish.  In the long term term, it is hard to say whether this would be beneficial or harmful.  The conventional wisdom is that creators would stop creating because they could not make a living.  But maybe they would become more like carpenters, depending for continuing income on continuous creation.  If that happened, society would benefit from more creation instead of less.  As for the public domain, without the exclusive rights in copyright, society would not suffer the same costs and therefore would not need the same bargain that results in the public domain.  And creators would be in the same situation, again, as chair makers; they could enjoy their creation in perpetuity, as long as they decided not to sell it.  But, like the chair, once the song was sold it would be beyond the creators control forever.

I doubt that this scenario appeals to many creators.  But I hope it helps illustrate why copyright and the public domain are inseparable concepts; they go together, as the old song says, like love and marriage.

Public art and fair use

A couple of week’s ago I was asked a question that set me thinking and required a bit of research.  That is hardly post-worthy, but when a case came down that addressed the same issue I had been thinking about, it suddenly seemed worth discussing.  It provides an opportunity to dissect an issue, remind ourselves of things we already know, and also explore the continuing evolution of fair use decisions from our courts.

The question involved the use, in a planned publication, of a photograph of a piece of public art.  In Durham we have several murals, painted on walls in public spaces, of Pauli Murray, one of our prominent citizens.  Rev. Murray was a civil rights activist, a women’s rights activist, and the first African-American women ordained as a priest in the U.S. Episcopal Church.  But could an author use a photograph of one of those murals in an upcoming article?

Of course, the first thing that comes to mind is that there are likely two sets of rights to be aware of here — the artist’s and the photographers.  In this case, however, the photo was take by the author of the publication that was in preparation, so the issue was focused on the scope of the artist’s rights.

Does it matter that this work of art can be seen by people walking on a public sidewalk or through a public park?  I knew, for example, that that fact did matter when the subject of the photography was a building.  In 1990 Congress added section 120 to our copyright law which permits “pictorial representations” of an “architectural work that has been constructed” as long as the building in question is “ordinarily visible from a public place.”  These pictures can be made, distributed and publicly displayed without the need to obtain permission.  But a quick look at section 120 reminded me that it is quite specific to architectural works; it does not tell us anything about the situation for a work of visual art that is painted on to the side of such a building or otherwise placed in a public spot.

Next up in my mental queue was an older case (with the great name of Letter Edged in Black Press v. Public Building Commission of Chicago) that involved the immense, untitled Picasso sculpture that is installed on the Civic Center Plaza in Chicago. But interesting as that case is, it is not applicable to the situation I was looking into.  The case was decided in 1970, so it was based on the provisions of our older, 1909 copyright law.  In the specific circumstances, a federal court held that the Picasso sculpture was in the public domain because all of the publicity around it had amounted to “publication” without copyright notice.  Under the 1909 law this put the work in the public domain.  But that is no longer the case under the newer Copyright Act, which replaced the 1909 law on January 1, 1978. So the “Chicago Picasso” case did not answer my question either.

Ultimately, the answer comes down to this — copyright is automatic when the work of art is “fixed”, including by being painted on a wall, so the artist holds a copyright in this mural.  Simply painting it in a public place does not make it public domain or give people any license to make use of it (other than by viewing it, of course).  There is no specific exception that would apply to use of a photograph of this type of art.  When we have exhausted those options — public domain, a license, or a specific exception — we are left with two more possible grounds for using a work, fair use or permission from the rights holder.

Which gets me to the recent case, which actually involved very similar circumstances — reuse of an image of an artwork painted on a publicly visible wall.  In this case, the artist was Derek Seltzer and a copy of his poster called “Scream Icon” was on a wall in Los Angeles that was part of a video used as backdrop for live concerts by the band Green Day.  In an opinion last month, which can be found here, the Ninth Circuit Court of Appeals affirmed a lower court ruling that this use of the poster was fair use.  The Ninth Circuit panel found that Green Day’s use of the image, which was in a context created by other posters and graffiti on the wall and was used to convey, the Court said, a very different (and much clearer) message than the original poster, was transformative:

[the] video backdrop using ‘Scream Icon’ conveys new information, new aesthetics, new insights and understandings that are plainly distinct from those of the original piece.

The Court went on to hold that the creative nature of the work weighed slightly against fair use, and that the use of the entire poster was neutral, since the poster could not be separated from its context on the wall.  Finally, they ruled that there was no impact on the potential market for or value of the poster caused by Green Day’s fleeting use of it in a video backdrop.  They also held that that use was only “fleetingly commercial” because the video (and the poster) was not used in any way to market Green Day’s concert tour.

It is interesting that the Ninth Circuit panel said that this was a close case (and reversed a grant of attorney’s fees to Green Day because of that).  In many ways it seems like a pretty clear case of transformative fair use, and one for which there is precedent.  In the Second Circuit a very similar case involving use of copyrighted visual material during a live performance was decided about six months ago, also in favor of transformative fair use.  The case was called SOFA Entertainment v. Dodger Productions and involved a seven second video clip from the Ed Sullivan Show shown on a screen at the end of the first act of the Broadway show Jersey Boys.  The Ninth Circuit cited  SOFA Entertainment, but seemed to feel that the case for transformative fair use regarding the poster was closer.  On the one hand, of course, the use is much more ephemeral, but perhaps the Seltzer court felt that the “biographical anchor” which the SOFA court found in the use of Ed Sullivan in a show about the Four Seasons was lacking for Green Day.  And maybe they just wanted to reverse the grant of attorney’s fees to the band, feeling that it was unfair to Mr. Seltzer.

All of this reminds us that the analysis of transformative fair use, while very useful for both creative artists and scholars, is evolving territory.  In fact, the Ninth Circuit panel noted this themselves when considering the issue of attorney’s fees, but also saw in this case a convergence between themselves and the Second Circuit on the other coast. Fair use is always extremely dependent on the specific facts and circumstances related to the particular use of particular material.  Reading these case decisions continues to give us additional data points to guide our analysis, but we never arrive at a finished picture.

So what about the photograph of that Pauli Murray mural in a scholarly article?  If we look at the fair use argument as it is developed in these cases and many others — especially the language quoted above about new meanings and new insights — the use of that photo is probably fair use.  But there was also some realpolitik in my answer to the inquiry.  The artist who painted those murals is known, still working, and easy to contact.  Scholars working on the life and impact of Pauli Murray may want to make later uses of these works dedicated to her.  So why not ask? Especially because this is a clearly non-profit, scholarly use that will, like the murals, honor the memory of a remarkable women, the artist has every reason to grant permission.  Asking permission, we know, does not prevent a later reliance on fair use, but in some cases it seems like an easy and respectful way to proceed even when fair use would likely also support the use.

What I learned getting published by Taylor & Francis.

It was a rather embarrassing moment.  I was in a meeting with other copyright specialists from academic libraries when I received the email telling me that my article with Taylor & Francis had been published.  Before I could stop myself, I expressed my surprise out loud, then had to explain to my colleagues that I had just had an article published in a library science journal published by Taylor & Francis, and that I was not expecting it.  Two sources of embarrassment here.  First, especially following the resignation of the entire editorial board of a different library-related T&F journal due to their archaic authors’ rights policies, this is not a publisher with whom I would have chosen to do business or encouraged authors who consulted me to use.  Second, the fact that I was surprised by this news showed that I had been much more lax in my own decisions about publishing than I advise other academic authors to be.  It is always awkward to be caught in a “do as I say and not as I do” situation, and especially so when you have to explain it to a respected set of colleagues.

So let me explain how this happened and what lessons can be gleaned from my experience.

The story began when I gave a talk at the 2012 conference of NASIG, the North American Serials Interest Group.  Let me say at the start that no one at or representing NASIG did anything wrong in this encounter and that whatever misunderstanding or lack of information existed was entirely my fault.  NASIG provided me with an interesting and engaged audience of librarians, which was all I could ask.  In any case, I signed an agreement, as a “Vision” speaker (kind of ironic), allowing my talk to be mechanically recorded and also agreeing that a human “recorder” would write up what I said for an article for The Serials Librarian.  In due time, that reporter sent me a copy of the article and I agreed that it was a good representation of the talk I had given, ready to be published.  Not until the article was published did I realize that The Serials Librarian was a Taylor & Francis journal, and to the best of my recollection I never signed a copyright transfer agreement with T & F.  At least, I can find in my saved e-mail the agreement to publish in The Serials Librarian but not a CTA.

Again, neither NASIG nor the article author did anything wrong; they sought and obtained all the necessary authorizations from me.  It may well also be the case that the recorder who wrote up the article signed a CTA with Taylor & Francis, which she would have been entirely entitled to do.  But as I say, to the best of my knowledge I did not, and the lessons I take from this incident are premised on that recollection.

So the first lesson is obvious — be careful what you sign.  More careful than I was.  I should have determined who the publisher was and made an intentional decision before I signed that agreement about what would be done with the article that resulted from my talk.  It is quite likely that I would have agreed even after that small bit of research, since the article was actually written by someone else (as, I suppose, a derivative work from my original talk), and I had no further plans to use it in any way.  What I often tell authors is to consider the agreement they are presented with in light of their own plans and hopes for their work, and transfer or license rights in a way consistent with those plans.  If the agreements allow one to meet those goals, well and good; if they do not, negotiation is called for.  The decision should rest with the author.  In the experience I had, I did not make that decision in an informed way, and that, rather than the ultimate result, was the problem.

The second lesson from this experience is that authors choose journals, not publishers.  When I read over the agreement with NASIG, The Serials Librarian seemed like a proper venue for the article resulting from my talk, and I failed to inquire further.  Although I should have done, I did not look into the publisher’s identity because for me at that moment, as for many academic authors, it simply didn’t matter.  The first step in getting academic authors to pay attention to the rights they transfer or retain is helping them realize that not all publishers are alike in this matter, and that they do need some awareness of who is who.

Next, my little story provides an opportunity to remind readers about the issue of joint authorship.  Joint authors are very common, of course, in academia.  Once mostly found in the STM fields, digital humanities projects are now making joint authors out of folks from many different departments.  Joint authorship arises, of course, whenever two or more people each contribute original expression with the intent of creating a unified work.  In the case of my talk, my original expression was fixed in the PowerPoint slides and notes that I had made.  Recorder Susan Davis then created a derivative work from that original, adding a great deal of her own original expression.  Once I had indicated my assent to that process, she and I became joint authors.  Like all joint authors, we each hold an equal and undivided share in the copyright, and are each entitled to exercise the exclusive rights granted by copyright, subject only to a duty to account to each other for any profits (which I don’t expect, in this case).  Because of this situation, if Susan signed a copyright transfer agreement for publication of the article, she was perfectly entitled to do so.  And because of the potential that fact has to create misunderstandings and surprises for other joint authors, it illustrates how important it is in general that joint authors agree in advance, whenever possible, about how their shared work will be used, licensed and made public.

Finally there is this point — if I am correct that I never signed a copyright transfer, and assuming, for the sake of illustration, that Susan did, then Taylor and Francis and I are now joint holders of the copyright in this article.  One thing that means is that I can continue to exercise all the rights as a copyright owner — I could post the article to the web if I wanted to, for example — without consent from T & F.  So when publishers tell us that they need to be the exclusive holder of copyright in every item that they publish, it is important to realize that that may be an aspiration, but it is not a necessity.  In fact, my experience is only one of a large number of scenarios under which publishers routinely publish articles for which they are not the exclusive rights holders.  As we seek to reform the scholarly publishing system, partly by encouraging academic authors to pay better attention than I did in regard to this article, this fact is an important piece of information to remember.


Curb your enthusiasm

Happy New Year to all!

Just before and after the first of the new year, I saw a flurry of e-mails and blog posts celebrating this year’s Public Domain Day.  January 1 is the day on which all the material whose copyright expired during the previous year officially rises into the public domain and becomes free for all to use and transform into new works without the need to ask anyone’s permission or consider copyright exceptions.

Unfortunately, I have seen a few messages that overreact to Public Domain Day with claims, for example, that all of the works of F. Scott Fitzgerald (who died seventy years ago, in 1940) are in the public domain.  If our copyright law was simpler and more oriented toward helping users know what is what, that might be the case.  But it is not; our law has developed into a complex web of provisions that shows no concern at all for clear and understandable rules.

The basic situation is that only unpublished works are entering the public domain in the United States right now.  No published works will become public domain in the US through the expiration of copyright until 2019 at the earliest (assuming the law does not change on this point between now and then).

This severe restraint on the benefits that Public Domain Day ought to bestow on us are nicely explained by Duke’s Center for the Study of the Public Domain on this website.

Let’s look for a minute at F. Scott.  Because he died in December of 1940, his unpublished works do enter the public domain in the United States as of 1/1/11.  His published works, however, are another story.  If a Fitzgerald work was published between 1920 and 1922, as This Side of Paradise was, for example, it is in the public domain.  But any works published in 1923 0r later, such as The Great Gatsby, are still protected.  After 1922 (and prior to 1963), a work that was published with copyright notice  and the copyright in which was renewed is given a term of 95 years from publication (the initial 28 year term plus a renewal term, after the Sonny Bono Copyright Term Extension Act, of 67 years, ).  Thus published works from this time period are protected until at least 2019; — 1923 plus 95 years equals 2018, so works published that year will rise into the public domain on 1/1/2019.  The author’s date of death does not make any difference for these works.

This distinction seems designed to confuse librarians and other users of works.  An archive of Fitzgerald manuscripts, for example, could digitize and make available those items that were never published, or that were published earlier in F. Scott’s career (like Tales of the Jazz Age).  But a manuscript of Gatsby or Tender is the Night is still subject to protection.

If this isn’t confusing enough, the situation is not merely different, but reversed, in some countries.  As this blog post explains, Canadian copyright law has a shorter term — life of the author plus fifty years — but protects unpublished works differently.  In Canada, the published works of an author who died in 1960 are now PD, while unpublished works by the same author are protected until 2049!

Determining whether or not a work is in the public domain is an unfortunately complex business.  Like so much in copyright law, that complexity itself is a discouragement to many worthwhile efforts to make the products of our culture available to future generations.

Don’t take my word for it

There are two things that persistently bother me about the musing I post to this blog.  The first is very general — so often I sound like Chicken Little, crying that the sky is falling.  Readers might well ask if things are really as bad as I make them sound in the copyright arena, although I spend enough of my time with frustrated, angry or frightened academics whose teaching and research is impeded by copyright restrictions to justify my dire warnings.

The second, much more specific, thing that bothers are the requests I get for “something short and simple I can read about copyright law.”  Unfortunately, as the copyright law has grown more and more complex, full of new exceptions to try to mitigate the harms done by new monopoly rights and longer protection, a “short form” (and the analogy to the tax code is apt) simply is not available.

There are a couple of excellent websites, of course.  The Crash Course in Copyright at the University of Texas and the Copyright Advisory Office site at Columbia are my favorites.  But now I have the chance to recommend two short articles that I think really will help clarify the current copyright situation for interested readers.

To start literally at the beginning, this short essay on “The Purpose of Copyright” by law professor Lydia Pallas Loren takes us back to the beginnings of copyright to understand how and why it has wandered from its historic purpose (at least as expressed in the US Constitution).  Professor Loren makes a persuasive case that copyright law needs to return to the “delicate equilibrium” that copyright laws seek to establish.  Hers is an eloquent description of how copyright has gone wrong due to some pervasive misunderstandings and what the path to  a restored balance would look like.

The situation specifically in academia is nicely summarized by another short paper, this one by Dorothea Salo on “Who Owns Our Work?”  Through the prism of the thorny ownership questions that are arising around all kinds of academic work, Salo nicely outlines the conflicts inherent in the current system.  Her essay is about a good deal more than ownership per se; it is a compelling summary of the issues that need to be resolved if scholarship is going to make the kind of progress in the digital age that the technology offers.

It is nice to be able to offer these two articles — both readable and compact — both because of their quality and because the next time someone asks me if things are really as bad as I suggest, I can point to Loren and Salo and respond, “Don’t just take my word for it…”

“Renewing copyright” and a reflection on versions

In a post about two months ago I promised that I would offer a link to the article I wrote on reforming copyright law from the perspective of academic libraries.  That article was published this month in portal: Libraries and the Academy, and is now also available in DukeSpace, the open access repository at the Duke Libraries.

The full citation for the article is:  Kevin L. Smith, “Copyright Renewal for Libraries: Seven Steps Toward a User-friendly Law,” portal: Libraries and the Academy, Volume 10, Number 1, January 2010, pp. 5-27.

The published version is available on Project Muse at

If you cannot access Project Muse, this is the link to the DukeSpace version, which is my final manuscript but lacks the formatting and copy editing done by the good folks who publish portal:

As I said in the original post linked to above, I hope my suggestions will be read in combination with those made by Professor Jessica Litman in her wonderful article on “Real Copyright Reform.

I had intended to end this post with the information above, but a recent discovery has caused me to change that plan.  Late last week I discovered that a small error, an extra clause made up of words from elsewhere in the sentence, was inserted into the HTML version of the article.  It does not appear in my manuscript, nor in the PDF of the published article, only in the HTML version.  I contacted the editorial folks at portal and expect that the error will be fixed shortly, perhaps even before I publish this post (Note on 2/2 — the error has been corrected).  But it does raise some questions about some of the assertions made on behalf of traditional publication.

First, we are often told that copy editing adds value to an article and that publishers deserve compensation for adding that value whenever the public is given access to the final published version of an article.  On the compensation issue I shall write more later.  But here I want to note that the editorial process can insert errors as well as eliminate them.  I found the editorial assistance from portal to be superb, but, in spite of their best efforts, the multiple stages of the publication process are not all within their control.  The result was that a error that I was not responsible for, albeit a minor one, found its way into my work.

Second, this small incident raises questions about the assertion that publishers provide the scholarly community with the “version of record” that assures consistent quality.  In fact, there are two different versions of my article available at this moment (on 2/1) on the Project Muse site for this journal — the HTML is different from the PDF in at least this one respect.  So which is the version of record?  To make that determination, I am the final arbitrator, and I hope that the error I caught in the HTML will be corrected based on my request.

This suggests that there is at least an argument that the “version of record” should be the one that is closest to the author’s hand.  Who else has a greater incentive to insure accuracy, after all?  A serious error may impact the publisher’s reputation to some degree, but it can be devastating to that of the author.  And I would certainly hope that a significant error, such as an incorrect calculation or formula, would never be “corrected” by a copy editor without first consulting the author; it is easy to imagine cases where what looks like an error — a deviation from the expected — is in fact the heart of the argument.  Thus significant corrections should always be made with input from the author, and the author would then be free to correct any versions she has made available to the public.  So I would like to see discussions of “version of record” include the likelihood that the version nearest to the author may, at least sometimes, be the most accurate version available.

An amusing chance to review some key ideas

There are probably many readers out there who know who Vanessa Hudgens is.  I did not, until I saw some blog posts reporting on her ongoing lawsuit against website owners who apparently posted nude photos of the actress and singer without her permission; see this report (without the pictures) on the TechDirt site.  Not, I admit, a serious issue of scholarly communications, but it does offer a chance to review some key points about copyright law about which there seem to always be questions and confusion.

First, the subject of a photograph does not have a copyright claim in the picture.  As the post linked to above points out, this has some counter-intuitive results.  One of the best photos of my wife and I together taken in recent years was snapped by a stranger we met in Istanbul who asked me to take a picture of he and his new bride and then returned the favor.  Oddly, he has a copyright claim in photo on my wife and I while I would have a claim in the picture of him, on his camera.  This is a result of the automatic nature of copyright protection, which showers down on a creator as he or she creates.  No such right in copyright accrues to the person whose picture is taken.  In the case of Ms. Hudgens, who is suing for copyright infringement, the ability to make that claim depends on the asserted fact that she took the photos herself, using a cellphone camera.  Were they taken by another person, Ms. Hudgens would not have any copyright claim.

This brings us to the need to distinguish copyrights, which are granted and enforced by federal law, from a right of publicity, which is a state law claim.  Merely as the subject of these photos, Hudgens might still have a claim that her right of publicity has been infringed, even if she had no copyright claim.  There could be a dispute about whether posting these pictures to a website was a commercial use, which is usually necessary to trigger the right of publicity, but I suspect that the website sells advertising and expected the photos to drive up both hits and revenues.  So posting the pictures might well have been the kind of use that would violate Vanessa’s right to control commercial use of her image (as well as other privacy rights, perhaps).

This need to distinguish between the owner of a copyright interest in a photograph (the photographer) and the owner of the publicity right (usually the subject) is the first lesson we can tease out of this case.

There are other ways a subject might get a copyright interest in a photograph, by the way.  First, the photo might be a work made for hire.  In that case, the employer owns the copyright from the start, and the employer might well also be the subject of the photo.  But just paying for a photograph does not make it a work for hire; the photographer must either be a regular employee of the employer/subject or an independent contractor who explicitly agrees in writing that the work will be a work for hire.  Alternatively, the photo might be a derivative work based on a copyrighted work that is part of its subject.  Suppose an artist poses in front of one of her paintings, or that Vanessa Hudgens had been wearing a dress she had designed herself (clearly counter-factual).  In those cases, the subject would have a copyright interest in the photo because of the derivative representation of an original work.

Finally, we can also take from this case a reminder about the role of registration in copyright protection.  The blog post notes that it is “odd” that these photos are registered with the Copyright Office if they really were private self-portraits, as claimed.  Not really.  We should remember that registration is not required for protection — copyright is bestowed automatically as soon as the pictures were snapped — but it is required to bring an infringement action into court.  Thus it is perfectly possible to hold a copyright, have it infringed, then go and register that right before bringing a lawsuit.  In fact, a quick review of the Copyright Office’s records suggests that this was the case here, since the registration data of the photos is October 2009.  If one follows that sequence of events, the range of damages is limited, since statutory damages are not available.  I suppose, however, that if copyright was registered before the infringement took place (and thus statutory damages are sought), one might well doubt the assertion that the photos were intended to be private.

Writing about reform

Every now and then, a law review article on copyright comes along that is so good that I feel I have to recommend it.  I am well aware that most of my readers are neither lawyers nor legal scholars, and the length and stilted format of law review articles can be off-putting.  But Professor Jessica Litman is more of a “known quantity” then many other copyright scholars, thanks to her wonderful 2001 book “Digital Copyright.”  It is her new article “Real Copyright Reform” that I now want to recommend for anyone interested in that broad topic.

There are lots of meaty and persuasive discussions of how to right the copyright ship in the US in this article, and it is hard to summarize all of Litman’s insights.  I really do hope that the whole article will be widely read, but I want to emphasize two broad points Litman makes for the purpose of this post.

First, Litman suggests that we abandon the division of copyright into seven distinct and separable rights.  This division serves us very poorly in the digital age, when all kinds of private uses that were uncontroversial for many years are suddenly contested online. Often the lines between performance, display, reproduction and distribution are simply impossible to maintain in the online environment that makes a new copy for nearly every use.  Instead of this increasingly dysfunctional division, Litman proposes a radically simple distinction between commercial exploitation and non-commercial enjoyment.

Besides the obvious simplification that such a new approach to copyright would accomplish, Litman points out another advantage to her proposal – it accords better with the general public’s intuitive understanding of what copyright is for and how it is supposed to work.  She correctly notes that a copyright law that is regarding as illegitimate and unenforceable by a majority of the public is of very little use.  This proposal for a simplified approach to protection and infringement, based on protecting only commercial exploitation and allowing non-commercial enjoyment, would serve the cause of copyright legitimacy.

The second broad proposal that I want to highlight is Litman’s suggestions for “reuniting creators with their copyrights.”  Copyright is frequently defended as an author’s right, but it seldom functions that way.  Nevertheless, both logical and economic reasoning suggest that greater efficiency could be had if copyright, or some copyright privileges, remained in authors’ hands.  To accomplish this goal, Litman suggests two significant reforms that would give creators more control over the exploitation of their works.  First, she suggests that we transform our largely illusory termination right (the right to terminate a transfer of copyright and reclaim the rights after 35 years if a complex procedure is followed) into a simpler process that would be available after only 15 years.  Second, she proposes that creators retain the right (“residual authority”) to license uses of their works even after a copyright transfer has been executed, “subject to a duty to account to her assignee(s).”  Such a move would simplify the licensing process, give some certainty to those who seek licensed uses, and put the residual licensing authority in the hands of the one most likely to permit and encourage creative reuse.

I have to finish this post with both a plug for my own forthcoming work and an expression of regret.  My own article on copyright reform, which is directed to a librarian audience, will be published in January 2010 in portal: Libraries and the Academy.  My article will be featured in the issue that marks the tenth anniversary of the journal, and I am very honored to be given that position.  But I also wish I had had the advantage of reading Litman’s article as I wrote my own.  Several of my suggestions for how to “renew” copyright focus on returning control to creators, and Litman has done a superb job of both defending the rationality of such reforms and thinking through some creative ways to get there.  I have no choice but to resort to that old complaint, “I wish I had said that.”

By the way, I will make a copy of my article available on this site as soon as it is published, in keeping with my contractual rights and obligations.

New (and not so new) resources

I am delighted to be able to link to a whole new group of resource for understanding and teaching others about copyright law and user rights.  Since most of these resources are video, they offer a nice supplement to the text resources I have listed here and here.

First, because it is the most general, is this new web site called “Teaching Copyright” from the Electronic Frontier Foundation.  This is a full-scale online curriculum designed to teach students about copyright,  It is intentionally offered to counter some of the educational efforts of the music and movie industries, which tend to focus heavily on what is not allow and try to avoid mentioning fair use or other exceptions that benefit users and support new creativity.

Second is what I like to call the most boring seven minutes on YouTube.  I realize that there is great competition for that honor, but this video in which I discuss the copyright and privacy issues involved in recording campus lectures and classes for Internet distribution surely has a claim.  It was made at the request of the Duke Office of News and Communications, and I have reason to hope it is helpful, even if it is not exciting.  If viewers are seeking entertainment after listening to me drone through the rights issues they need to consider, it is worth while looking around at the other videos on the Duke Libraries YouTube channel; many are much more exciting.

Next is this video from JISC on Intellectual Property Rights in Web 2.0 world.  It is a cute, colorful and nicely detailed discussion of rights and permissions issues that need to be considered as one creates new content for the web, and it points to an “online diagnostic tool” that will walk one through the issues in greater detail.  One warning, however, is that because this video and diagnostic tool are created in reference to UK law, where there is no fair use provision, their suggestions for when permission is needed must be reconsidered by US citizen in the light of our fair use provision.  Nevertheless, this is a helpful way of evaluating the issues and the various strands of rights that have to be considered, even if the conclusions will seem too strict to Americans.

The antidote to JISC’s lack of reference to fair use is this final video from the Center for Social Media on Fair Use and Online Video.  The Center has been a great champion of fair use through its work to create best practices documents to guide filmmakes and teachers of media literacy.  Now this video, and the accompanying best practices that it refers to, make the process of figuring out how and when fair use applies to allow a use without permission from the rights holder both clearer and rather entertaining.  This, and all of the resources mentioned above, are additional tools for the ongoin effort to clarify copyright for our students, staff and faculty; it is nice to be able to point to such a array of different, and amusing, media