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World IP Day 2015 Celebrates Music

On April 26, 1970, the Convention Establishing World Intellectual Property Organization (WIPO Convention) entered into force. The event is celebrated annually through the World Intellectual Property Day. The theme for this year’s World IP Day is “Get up, stand up. For music.”

Music plays a critical role in our lives—it is an essential defining element of our culture and society.  And through the changing of technology, consumer preferences, and industry standards, the demand for music has remained.  This past year has seen a lot of activity surrounding music creators and their rights under copyright law. Parties on all sides have questioned our current systems and laws, seeking changes designed to fairly support the value that musicians contribute to our lives and adequately encourage society’s access to and use of music.

Keeping with the theme of this year’s World IP Day 2015, we are highlighting a few out of many interesting and important recent developments and the resulting impact on copyright owners of musical compositions and sound recordings.

 

The Fair Play, Fair Pay Act of 2015

While musical compositions have long been protected under federal copyright, the inclusion of sound recordings under federal copyright law has been a relatively recent development (sound recordings fixed before February 15, 1972 are still governed by state law). In 1995, through the Digital Performance Right in Sound Recordings Act (DPRSRA), Congress provided copyright owners an exclusive public performance right in their sound recordings, but limited the exclusive right to public performances of sound recordings via digital audio transmission. This limitation means satellite and music subscription services need to pay a licensing fee to perform a sound recording, but terrestrial (AM/FM) radio stations do not. Why the exception for traditional over-the-air broadcasts? In short, Congress didn’t believe radio and television broadcasters posed a threat to copyright owners. Terrestrial radio stations, it has been argued, enjoy a symbiotic relationship with copyright owners. Terrestrial stations play music to increase their listenership and increase advertising revenue and in return create exposure for artists, promoting record and other sales for the sound recording owner.

Introduced in Congress earlier this month, the Fair Play, Fair Pay Act of 2015, H.R. 1733, 114th Cong. (2015) would require terrestrial broadcasters to pay royalties for the public performance of sound recordings, a requirement that is currently only applicable to services that perform a song via digital audio transmission. This public performance right would also extend to sound recordings fixed before February 15, 1972.  Special protections exist for small broadcasters, public broadcasters, college radio, noncommercial radio, and religious services. The bill also includes pieces from the Allocation for Music Producers (AMP) Act, discussed below.

Why it matters: Under the current law, owners of a musical composition (songwriters or music publishers) are compensated if their song is played on terrestrial radio but owners of the sound recording (performing artist or record label) are not. If that same song is transmitted through a service like Pandora, both copyright owners will be compensated. If enacted, the Fair Play, Fair Pay Act of 2015 would result in terrestrial broadcasters operating under the same system that newer digital broadcasters are required to operate under. Overall, this would create more harmonization in copyright law by bringing platform parity to radio and would establish an additional revenue stream for both current artists and older artists.

 

Local Radio Freedom Act

The Local Radio Freedom Act, a resolution reintroduced into the House and Senate earlier this year, declares that “Congress should not impose any new performance fee, tax, royalty, or other charge” to terrestrial broadcasters for the public performance of sound recordings. The National Association of Broadcasters has backed the resolution, which does not carry the force of law. The resolution highlights the “mutually beneficial relationship between local radio and the recording industry,” in which radio stations have provided publicity and promotion to artists, which has benefitted the careers of many performers. The resolution also cautions the economic hardship local radio stations and small businesses will face at the imposition of any new performance fee.

Why it matters: While artists have thrown a lot of support behind the Fair Play, Fair Pay Act (discussed above), broadcasters believe the Local Radio Freedom Act provides a better solution. The Local Radio Freedom Act, is non-binding, but functions to express the sentiment of Congress. This resolution would preserve the status quo for public performance of sound recordings. There are currently 165 co-sponsors in the House and 12 co-sponsors in the Senate.

 

Allocation for Music Producers (AMP) Act

Traditionally, record producers have received compensation for their work through the negotiation of a flat fee for their services and/or points (typically 3-4% of the wholesale price of an album). The Allocation for Music Producers (AMP) Act, H.R. 1457, 114th Cong. (2015), introduced in March of this year, would amend copyright law to provide a statutory right for producers, sound engineers, or mixers involved in the creative process of creating the sound recording to receive royalties for the digital transmission of the work.

Current law requires that royalties paid for the public performance of a sound recording by digital audio transmission be split between featured artists (45%), non-featured artists (5%), and sound recording copyright owners (50%). A featured artist may provide a Letter of Direction to SoundExchange, the entity responsible for collecting and distributing such royalties, requesting that a portion of their royalties be paid to the producer. Under the AMP Act, this informal process would be recognized through a statutory amendment.

In addition, the bill creates a new process for setting aside royalties for sound recordings fixed before November 1, 1995. In the absence of a Letter of Direction, SoundExchange may set aside 2% of featured artist royalties to be paid to the producer, mixer, or sound engineer of the relevant sound recording, so long as the artist does not object within a given period of time.

Why it matters: Producers, sound engineers, and mixers play an important role in the creative development of sound recordings. The AMP Acts acknowledges the importance of these individuals in the overall creative process and seeks to establish a permanent procedure by which these professionals can fairly be compensated for their contributions.

 

Songwriter Equity Act

Re-introduced into both houses on March 4, 2015, the Songwriter Equity Act of 2015 (SEA) would amend Sections 114 and 115 of the Copyright Act to allow the calculation of statutory royalty rates for musical compositions based on fair market value.

The SEA would change the way royalties are calculated for the reproduction of musical compositions. There is currently a compulsory mechanical license for the reproduction of musical compositions. The initial rate set by Congress in 1909 was 2¢ per song. In 2015, it is 9.1¢ per song. The SEA would now allow Copyright Royalty Judges to establish rates that “most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.” In addition, Judges may now consider the royalty rates set for the public performance of sound recordings in their determination of rates for the public performance of musical compositions.

Why it matters: The intent of this bill, as with the other bills we have discussed, is to even the playing field. By adopting rates that reflect free market conditions, songwriters may receive fair compensation for their works.

 

Calculation of digital royalties for pre-digital artists

It is difficult to predict how technology will change in the future, as a result, older recording agreements are silent on how to handle payments for digital downloads. The major record labels have historically treated downloads as equivalent to physical sales (meaning artists get 12-20% of net receipt of sales) but artists have argued that digital downloads are more appropriately treated as licenses (meaning the artist would receive 50% of net receipts).

The approach taken by major labels has resulted in major class action lawsuits against Sony, Warner, and Universal. On April 14, 2015, Universal submitted a preliminary settlement of $11.5 million, to be paid to artists signed with UMG or Capitol Records between 1965 and 2004. Universal does not, however, admit wrongdoing in the payment of royalties. Going forward, an increase of 10% has been applied to the royalty rate for digital downloads. Settlements have already been reached in the Sony and Warner Music Group lawsuits.

Why it matters: Compensation. There is a substantial difference in royalty rates between traditional physical sales and licenses. In cases where digital downloads have not been anticipated, it has been up to the court to determine what is just based on the technology of today.

As you can see from just these examples, this past year has been full of activity surrounding music and copyright issues. Following calls for comprehensive copyright reform and talks of a “music omnibus bill” to overhaul the music licensing system, we can expect this important dialogue to continue. Only time will tell how some of these issues will ultimately be resolved and the impact any changes will have on artists, consumers, and facilitators of music.

Interested in learning more about music copyright? Be sure to check out our 4-part series on music copyright: What is music copyright?, Copyright duration for musical compositions and sound recordings, Termination of transfer for music copyright, and Licensing opportunities for music copyright.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

How the public domain promotes scholarship: Engaging Columbus uses 1922 OSU thesis to map Columbus neighborhoods

Engaging Columbus, a collaboration between Ohio Wesleyan University, the Ohio Five Libraries, the City of Columbus Department of Technology / Geographic Information Systems, and other partners in central Ohio, has generated an interactive map of historic panoramic images from the City of Columbus using digitized photographs from a 1922 Ohio State University master’s thesis. The thesis, “An introduction to the economic and social geography of Columbus, Ohio” was written by Forest Ira Blanchard, OSU Department of Geography’s first graduate-level alumnus. The use of Mr. Blanchard’s photographs is a great example of the way digitization of works can spur new scholarship. Mr. Blanchard’s thesis photographs, published ninety-three years ago, provide important historical information on urban neighborhoods and development in Columbus, Ohio. As Engaging Columbus notes, “Blanchard’s photographs are remarkable for their depiction of typical streets, railroad corridors, and neighborhoods (rather than the more typical images of important buildings or events).” Engaging Columbus was able to freely use the valuable resource contributed by Mr. Blanchard to inform and shape its own work in geocoding historical photographs. The information they have generated is fully available for the benefit of the public and will in turn be used in a variety of ways.

Engaging Columbus was able to use Mr. Blanchard’s photographs without having to ask permission or pay fees to Mr. Blanchard’s estate. Original photographs such as the ones taken by Mr. Blanchard are subject to copyright protection, so how did Engaging Columbus use the photographs without permission? The answer comes from the law surrounding copyright duration and expiration. Mr. Blanchard’s photos were published prior to 1923; the photographs are in the public domain and therefore no longer protected by copyright.

What is the public domain?

In the United States, copyright law seeks “to promote the Progress of Science and useful Arts” by providing copyright owners with a number of exclusive rights over their works, for a limited time. By limiting the time in which a work may fall under copyright protection, the law seeks to find the right balance between incentivizing creators to create works and opening works up for the use and benefit of the public. In addition to establishing duration for copyright protection, the law also provides that certain works never receive copyright protection to begin with. The public domain includes works that fall into both of these categories: those in which the copyright has expired and those which never had copyright protection. Works in the public domain can be used by anyone in any way, without any permission required.

Copyright duration has been extended a number of times over the years, and calculating when exactly a work falls into the public domain due to expiration of its copyright can be tricky. The graphic can provide some general guidance. For more information on the public domain, visit our resources page.

When does a work fall within the public domain?

Four trapeziods, positioned sideways and all of a different color, depicting general guidelines for determining when a work falls into the public domain.Trapeziod 1 reads: Prior to 1923, most things published. Trapezoid 2 reads: 1923 to 1978, anything published without a copyright notice. Trapezoid 3 reads: 1978 to 1 March 1989, various conditions apply. Trapezoid 4 reads: On or after 1 March 1989, 70 yrs. after death of author, corporate or anonymous authorship: 95 yrs. from first publication or 120 yrs. from creation date, whichever first.

 

Digitization as a tool for new scholarship

Scholars around the world are creating tools, digital platforms, websites and documents to help society learn about ourselves. Many like Engaging Columbus are linking the arts, geography, history and sociology, among others, in new and innovative ways. By digitizing works in the public domain, we can provide access to previously unavailable historical, cultural and educational resources, which can have a positive impact on academia. Works such as Mr. Blanchard’s photographs may now reach new audiences and serve as the catalyst for creation and dissemination of new information and perspectives. Building upon and promoting of scholarship is at the heart of the mission of universities and libraries across the country, including The Ohio State University, to advance discovery and learning.

An introduction to the economic and social geography of Columbus, Ohio” is available for viewing in the Architecture Library at the Austin E. Knowlton School of Architecture and will soon be available online through the OhioLINK ETD Center.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Workshop this week! Protecting and Promoting Your Research: From Copyright to Commercialization

Concerned about retaining ownership of your research output or getting assistance with publisher’s agreements? Interested in turning your intellectual property into business opportunities or products? Join the Copyright Resources Center and the Technology Commercialization Office for a discussion of important things to consider for protecting and promoting original research.

Who: OSU faculty, graduates, and postdocs
When: Thursday, March 26, 1:00 – 3:00pm
Where: Thompson Library, Room 150A/B
Register now for this free workshop.

Fair Use in Digital Storytelling

 “…(A) digital story is a short (3-5 minute) movie which uses images, voice, and music to tell a story. There are a variety of media that can be used to create digital stories and a variety of reasons for creating them. ” – The Ohio State University Digital Storytelling Program

Authors of digital stories remix and reuse materials to create something new: a short video with a personal narrative. Authors write and record their own narration and often use personal photos, video, and sound; however, they frequently incorporate copyrighted materials from other sources in order to develop powerful digital stories. For example, a narrative may require abstract images to help convey a particular idea or emotion, or a specific element of meaningful culture such as a quote from a favorite book or photo of a particular event.

The stories produced in connection with the OSU Digital Storytelling Program are posted on YouTube and shared on campus through occasional viewings. In order to promote legal use of third party materials and avoid takedown requests, participants in the OSU Digital Storytelling Program are encouraged to source materials as much as possible from the public domain, licensed collections (e.g. Creative Commons photos on Flickr), or create things themselves. However, there are times when an author wants or needs to use copyrighted material, and wants to rely on fair use or seek permission in order to proceed.

As defined in Section 107 of the U.S. Copyright Act, fair use is a defense against charges of copyright infringement determined through the analysis and application of the four fair use factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fair use exception is quite broad and can apply to a wide variety of uses (which could include digital storytelling) but the lack of specificity can make it difficult to ascertain whether or not a particular use may qualify as fair use.  Those considering fair use, should employ a fair use checklist to conduct an analysis and weigh the criteria favoring and opposing fair use (our video provides more information and an example of doing a fair use analysis).

Fair use and your role as a digital storyteller

As a digital storyteller, you may have the option to rely on fair use depending on what material you are using, and how and why you are using it. A fair use analysis will help you evaluate your answers to those questions.

The first factor of fair use is concerned with the purpose and character of a proposed use. As an author, you should think carefully about the purpose of your digital story. Is it educational? Are you commenting on, criticizing, or parodying the copyrighted work you wish to use? These types of purposes favor fair use.  Transformative use also weighs in favor of fair use. If you use a copyrighted work in your digital story for a purpose other than which it was originally intended for, you may be able to make an argument for transformative use of that material. Using your favorite song as a soundtrack to your digital story is not a transformative use, but criticizing the lyrics of another song for its message of oppression or intolerance could be a transformative use.

Ask yourself whether you need a particular work in order to accomplish the purpose of your digital story. If you simply need some piece of material that depicts archery as a recreational activity, then you do not need to use a clip of Katniss Everdeen from The Hunger Games.  You can likely find a public domain or Creative Commons licensed photo, or even take your own photo. On the other hand, if your digital story critiques or comments on the character of Katniss Everdeen specifically and how she contributes to the reversal of traditional gender roles in the Hunger Games, then you may actually need a clip or photo from the films to support your narrative.

The second factor of fair use requires you to assess the nature of the work you are using. Is it factual or fiction? Published or unpublished? Is it highly creative? Many materials likely to appear in a digital story, such as music and photos, are considered highly creative works; this weighs against fair use, but it could potentially be balanced out by the other factors.

The third factor of fair use considers the amount and substantiality of the portion of the copyrighted work being used. Ask yourself how much of a particular work you need to use in order to accomplish your purpose. In your digital story about how the television show The Walking Dead saved your life because it inspired you to prepare for emergencies, will a still image from the show suffice, or does your story comment on a particular scene that you need to show as a video clip in order to fulfill your purpose? To strengthen your argument in favor of fair use, use only the amount necessary to fulfill the purpose of your story.

The “substantiality” component of the third fair use factor refers to the significance of the material you want to use in relation to the entire copyrighted work. Could the scene you want to use from The Walking Dead be considered particularly significant to the show or a particular episode? This is sometimes referred to as using the “heart of the work”. Another way to phrase this could be: “how big of a spoiler is it?” Showing the death of a main character or major events from a season finale could be considered the heart of the work and weaken your argument for fair use (particularly if you did not necessarily need to use that particular scene to accomplish the purpose of your digital story).

The fourth factor of fair use considers the effect your use of the material could have on the potential market for or value of the original work. Could your use impact the copyright owner’s ability to profit from his or her work? Digital stories have the potential to cause a detrimental effect on the market for a work because they are accessible to the public online, and they will remain available for a long time. For example, using a popular copyrighted song as a soundtrack for your video could impair the market for that song by providing a substitute for purchasing the song as an MP3. Viewers could simply play the digital story whenever they wanted to listen to the song, as opposed to going out to buy their own copy.

You must consider all four factors of fair use when evaluating whether or not you have a strong argument in favor of fair use. No single factor is more important than the others; for example, an educational purpose does not automatically qualify a proposed use as fair use. Additionally, although each factor is equally important to a fair use analysis, checklist criteria should not be tallied up with a simple “majority rules” determination. You should keep an eye out for significant problems that could outweigh other criteria, such as a particularly damaging effect on the market for a work.

Still have questions about fair use? Contact the OSU Libraries’ Copyright Resources Center for assistance:

Email: libcopyright@osu.edu

Phone: 614-688-5849

Website: go.osu.edu/copyright

Twitter: @OSUCopyright

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

Articles of interest: July-December 2014

This post highlights articles published in the last six months with a focus on copyright, especially as it pertains to libraries, higher education, and scholarly communication. Links to the full-text articles are provided when available; [OSU full-text] links will connect authenticated users through The Ohio State University Libraries, while [OA full-text] links point to an open access version of the article that should be available to all users.

Did we miss an interesting article? Please share the citation in the comments!

Copyright

Abdenour, J. (2014). Documenting fair use: Has the statement of best practices loosened the fair use reins for documentary filmmakers? Communication Law & Policy19(3), 367-398. [OSU full-text]

Collins, S. (2014). YouTube and limitations of fair use in remix videos. Journal of Media Practice, 15(2), 92-106. [OSU full-text]

Cowart, T. W., Gershuny, P., & Hawk, G. B. (2014). A survey of state copyright law. Southern Law Journal24(2), 311-335. [OSU full-text]

Glushko, R., Graham, R., Ludbrook, A., & Martin, H. (2014). Understanding “large and liberal” in the context of higher education. Feliciter60(4), 14-21. [OA full-text]

Heald, P. J. (2014). How copyright keeps works disappeared. Journal of Empirical Legal Studies11(4), 829-866. [OSU full-text]

Hua, J. J. (2014). Construction of digital commons and exploration of public domain. Journal of International Commercial Law & Technology, 9(3), 148-164. [OA full-text] / [OSU full-text]

Olson, K. K. (2014). The future of fair use. Communication Law & Policy19(4), 417-432. [OSU full-text]

Libraries

Anderson, R. (2014). Asserting rights we don’t have. Library Journal139(15), 12. [OA full-text]

Behnk, R. b., Georgi, K., Granzow, R., & Atze, L. (2014). Testing the HathiTrust copyright search protocol in Germany: A pilot project on procedures and resources. D-Lib Magazine20(9/10), 1. [OA full-text]

Dougan, K. (2014). “YouTube has changed everything”? Music faculty, librarians, and their use and perceptions of YouTube. College & Research Libraries75(4), 575-589. [OA full-text]

King, R. (2014). House of Cards: The Academic Library Media Center in the Era of Streaming Video. Serials Librarian67(3), 289-306. [OSU full-text]

McKinnon, L. l., & Helge, K. S. (2014). Copyright, open access and library instruction. Library Hi Tech News31(10), 13-16. [OSU full-text]

Owen, V. (2014). The librarian’s role in the interpretation of copyright law: Acting in the public interest. Feliciter60(5), 8-12. [OA full-text]

Rodriguez, J. E., Greer, K., & Shipman, B. (2014). Copyright and you: Copyright instruction for college students in the digital age. Journal of Academic Librarianship40(5), 486-491. [OSU full-text]

Schopfel, J., Chaudiron, S., Jacquemin, B., Prost, H., Severo, M., & Thiault, F. (2014). Open access to research data in electronic theses and dissertations: An overview. Library Hi Tech32(4), 612-627. [OSU full-text]

Soltau, C., & Farrell, A. (2014). Copyright and the Canadian for-profit library. Feliciter60(6), 9-14. [OSU full-text]

Williams, L. A., Fox, L. M., Roeder, C., & Hunter, L. (2014). Negotiating a text mining license for faculty researchers. Information Technology & Libraries33(3), 5-21. [OA full-text]

Publishing & scholarly communication

Dawson, D. D. (2014). The scholarly communications needs of faculty: An evidence based foundation for the development of library services. Evidence Based Library & Information Practice, 9(4), 4-28. [OA full-text]

Dutta, G., & Paul, D. (2014). Awareness on institutional repositories-related issues by faculty of University of Calcutta. DESIDOC Journal of Library & Information Technology34(4), 293-297. doi:10.14429/djlit.34.5138 [OSU full-text]

Rahmatian, A. (2014). Make the butterflies fly in formation? Management of copyright created by academics in UK universities. Legal Studies, 34(4), 709-735. [OSU full-text]

 

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Taking our show on the road with ODEE’s iTunes U Bootcamp in Cupertino, CA

Last week, I teamed up with the Office of Distance Education and eLearning (ODEE) to provide copyright assistance to OSU faculty and staff participating in ODEE’s Digital First iTunes U Bootcamp, which took place at Apple’s corporate headquarters in Cupertino, CA. Over the course of four days, I had a blast learning the ins and outs of the iTunes U platform, researching the always-interesting copyright queries that seem to crop up especially in relation to distance education, and getting to know my fellow Buckeyes along with our gracious hosts from Apple.

Group photo of OSU faculty and staff at Apple Headquarters

Ohio State University faculty and staff (including yours truly) outside Apple corporate headquarters.
Photo via Kevin Kula (@KulaOSU)

Rest assured, you don’t need to travel to California for copyright assistance if you’re developing an online course. With holidays coming to an end and faraway bootcamps concluded, your roaming copyright mavens have returned to Thompson Library. Feel free to give us a call, drop by our office, or we’d be happy to pay you a visit. If you’re looking for copyright information of the self-serve variety, many of our resources are also available online.

Copyright resources for distance education

 

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Public Domain Day – 2015

Image is a four panel comic strip titled “Public Domain Day – 2015”. First panel: Two people in an office setting exclaim: “Happy Public Domain Day!!!” and a caption states: “Many countries welcome new works into the public domain each year as copyrights expire on January 1st.” Second panel: One of the people from the first panel says: “This year’s collection of works entering the public domain in some countries** includes notable works like the famous painting “The Scream” by Edvard Munch.” Third panel: Shows a map of the United States with a caption that says: “However, due to the copyright extension included in the 1976 Copyright Act, no new works will enter the public domain in the USA until 2019. Fourth Panel: The other person from the first panel is shown in a posture and setting reminiscent of the painting “The Scream.”

It’s that time again! We celebrate Public Domain Day each year as many countries welcome new works into their public domain when the copyrights  for those works expire on January 1st.

Read our blog post on the public domain and its cultural importance, and visit these sites around the Web for more coverage of Public Domain Day 2015 and the works entering the public domain for various countries around the world:

 

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Open Access Week 2014

Happy Open Access Week to all! I hope you’ve been taking advantage of the vast array of educational events and joining in celebrations around the world this week in the name of Open Access. I’ve collected a few of the things that caught my eye for those still looking for another dose of OA:

Ohio artists remix the public domain: Q&A with Celia C. Peters, producer of Public Domain pop-up exhibit

As previously mentioned, a pop-up exhibit of new works by Ohio artists incorporating public domain materials will be on display October 11 at the Homeport Gallery in Columbus:

Event flyer: Public Domain art of the people, by the people. Ohio artists create from the public domain! Presented by Artistic Freedom Ltd.

PUBLIC DOMAIN
Pop-Up Exhibit & Reception
October 11, 2014
6pm-9pm
Homeport Gallery
779 East Long Street
Columbus, OH 43215
​(Adjacent to the Lincoln Theater)

We reached out to the exhibit’s founder and producer, Celia C. Peters, to learn more about the upcoming show and the relationship between artists, art, and the public domain.

Copyright Resources Center: What inspired you to curate an exhibit featuring artwork that incorporates public domain materials?

Celia C. Peters: I thought it would be an interesting creative challenge to present artists with: asking them to choose an element that speaks to them and use that to create something new. I like the idea of artists being inspired by the work of creators who came before them —- not to plagiarize, but to create something completely unique. I call it ‘recycling creativity.’

Also, before coming here, I lived on the East Coast for some years before (I’m still pretty new to Columbus) and I wanted to bring a bit of the vibe I’m used to — something a little different — to the Columbus art scene. This show felt like just the thing.

CRC: In your experience, why is the public domain important to artists and art in general?

Peters: The public domain is important to artists because it connects us to artists from the past and our shared drive to create; there’s something very powerful about that. It also removes the barrier of licensing fees from the equation. Depending on the nature of a project, an artist may need to access music, imagery or other creative elements from outside sources….and that can be cost prohibitive or challenging in terms of tracking down who actually owns the rights and paying to use the content. But, in the case of public domain content, though, it belongs to all of us!

CRC: You required participating artists to verify that the works they used are in the public domain; how did this process work?

Peters: We initially provided artists with links to a plethora of public domain material that they could use for their pieces. Artists in the show are providing me with links to sources that confirm that either the expired copyright of the content they’ve used was not renewed or that the work has been put into the public domain by the copyright owner.

CRC: Have you encountered any confusion or misconceptions from artists or your audience about what the public domain actually is? Has this exhibit helped you to educate people about the public domain? 

Peters: There were a couple of artists who (like many others in the general public) weren’t quite clear on the boundaries of copyright.  I think feel it’s very important for all of us as artists to know what protection our own work has as well as making sure we don’t violate anyone else’s intellectual property rights, in particular having access to something versus having permission to use it. I. So I try to shed light on copyright and also clarify where the public domain comes into play. And of course, having the support of the Copyright Resource Center was a great resource! [Editor’s Note: Thanks! It was our pleasure.] In talking to people about the show, I’ve found that lots of folks have heard the term ‘public domain,’ but they weren’t really sure what it means. That’s why I decided to include the definition on the show’s web site!

CRC: Can you share a few details about the new art that will be on display at this exhibit, and/or the public domain works that were incorporated in the art on display?

Peters: Well, I don’t want to give too much away…but I will say that Public Domain is a group show and that it features artists working in a mix of media: illustration, 3D art, painting, graphic art, video and even paper sculpture. There are very diverse aesthetics and very distinctive perspectives represented in the show, which is exactly what I’d hoped for. The artists have pulled from very different areas of the public domain for inspiration and, something else that I’m quite excited about: many of them chose to use public domain content in a different medium than the one their piece is in. I love that they’ve mixed it up. It’s all about imagination!

CRC: Thanks Celia– We look forward to the exhibit!

headshot photo of Celia C. Peters

Photo of Ms. Peters
© 2014 Celia C. Peters

Celia C. Peters is an avant-garde filmmaker creating compelling stories of authentically diverse characters. Peters is a member of New York Women in Film and Television and the Writers Guild of America. Her psychologically inspired, character-driven screenwriting has been both prize-winning and recognized in competition otherwise. She is the founder of Artistic Freedom Ltd., and her graphic art, photography and video work have shown at galleries in New York, Dallas, Detroit and London. She is completing post-production of her science fiction short film, Roxë15 and developing her sci-fi feature film project, Godspeed. See her full bio at ARTISTIC FREEDOM LTD.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

Identifying United States federal government documents in the public domain

According to the Office of Management and Budget, the United States government “is the largest single producer, collector, consumer and disseminator of information in the United States.”  United States copyright law places works of the U.S. federal government in the public domain in the United States upon creation.

Works in the public domain are not protected by copyright; either copyright has expired or the work was never protected by copyright.  Changes to copyright law have increasingly limited the amount of works entering the public domain in the United States, which increases the importance of U.S. government documents as a source of new public domain materials.

At first glance, 17 U.S.C. §105, the section of the United States Copyright law that places works of the U.S. federal government in the public domain seems straightforward: “Copyright protection under this title is not available for any work of the United States Government”; but, as with many aspects of this law, things are rarely as simple as they seem.

Online Sources of U.S. Government Materials

As more United States government works become available digitally, many are conveniently made available online for public use. As always, just because a work is publicly available (e.g. online) it is not necessarily in the public domain.  Many websites providing access to U.S. government works also provide rights and permissions information that may indicate whether the works are in the public domain.

A few resources for finding U.S. government public domain materials are listed below; however, as always, be sure to check the copyright information for any specific item you want to use because many of these sites also contain materials that are not in the public domain.

I.   What the law says

17 U.S.C. §105 places “any work of the United States Government” in the public domain.  The law defines “work of the United States Government” in 17 U.S.C. §101 as (1) a work prepared by “an officer or employee of the United States Government” (2) “as part of that person’s official duties.”  A United States government work does not enter the public domain unless it satisfies both parts of this definition.

Section 105 is subject to several additional restrictions. It only applies to United States federal government works – it does not place state, local or foreign government works in the public domain.  And §105 only places U.S. government works into the public domain within the United States. Other countries are subject to their own copyright laws, which may provide copyright protection to United States government works in those countries.  Nor does §105 mean that all U.S. government works are available for use within the United States without restriction.  Even if a work meets the §105 requirements for entering the public domain, other limitations may apply such as an individual’s publicity or privacy rights, trademark limitations, Freedom of Information Act restrictions, or a prohibition against using information the materials to imply a government endorsement.

II.   Exploring the Definition

Even though §105 places many U.S. government works in the public domain, many other U.S. government works do not meet the statutory definition “work of the United States government” and receive copyright protection.  How could a United States government work fail to satisfy this definition?

Not all government works are created by employees or officials of the government.  If someone other than a U.S. government officer or employee, like a contractor, prepared a work for the agency, the work would not enter the public domain under §105.

Another situation where a possible U.S. government work does not enter the public domain under §105 occurs when a U.S. government official or employee prepares a work outside of their official duties.  In that instance, the U.S. government official or employee receives the same copyright protection as anyone else, since §105 only applies to those works prepared by a government officer or employee as part of their official duties.

For example, a U.S. Admiral received copyright protection for a speech he prepared on his own time while employed by the government because “the writing and delivery of the speeches formed no part of Admiral Rickover’s official duties and that the speeches are the Admiral’s private property which he was entitled to copyright” Public Affairs Associates, Inc. v. Rickover, 268 F.Supp. 444, 450 (1967).  Section 105 also does not apply to “personal narratives written by public servants after they leave Government service” Harper & Row Publishers v. Nation Enterprises, 471 U.S. 559, fn. 6 (1985).

III.   Applying the Definition

As a practical matter, it can be difficult to tell whether a United States government work falls within §105 and therefore belongs to the public domain.  Some documents do explicitly indicate whether the contents are in the public domain.  Many do not.

If a document does not indicate whether it is in the public domain, someone wanting to use the document in a way that might implicate copyright must try to make an informed decision about whether or not the document is in the public domain.  The following bullet points provide suggestions on what to look for and things to think about when investigating the copyright status of a U.S. government document.

  • Look for a copyright notice on the work. A notice indicates that someone is claiming a copyright in the work, whether the copyright is claimed by the government or a third party.  Section 105 does not prohibit the U.S. government from holding a copyright in the United States.  Although §105 places items created by the government in the public domain, the law also permits the United States government to hold copyrights “transferred to it by assignment, bequest, or otherwise” (17 U.S.C. §105).
  • Look for a statement indicating that the work is in the public domain (as seen in the image below), but keep in mind that the government is not required to put a public domain notice on works, and not all works with public domain status under §105 will display a notice.

    Photograph of a public domain notice on a US federal government publication: Public Domain Notice: All material appearing in this publication is in the public domain and may be reproduced or copied without permission from SAMHSA. Citation of the source is appreciated. However, this publication may not be reproduced or distributed for a fee without the specific, written authorization of the Office of Communications, SAMHSA, HHS.

    Center for Substance Abuse Prevention (U.S.), & ICF International (Firm). (2010). Focus on prevention. Rockville, MD: U.S. Dept. of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Substance Abuse Prevention.

  • Are the authors identified as employees or staff of the government agency? This may be an indication that the work qualifies as a “work of the United States Government” and belongs to the public domain.
  • Look for information indicating that the author(s) was not a government employee or official. For example, works prepared by a contractor, commissioned by the agency from another organization, or created by some other third party. Author affiliations and biographies may provide additional clues.If the document provides the authors’ names, but not their affiliation(s), researching the author(s) may reveal whether they work for the government.
  • Contact the government agency and ask for additional information about the document.  Even if they are not able or willing to tell you whether it is in the public domain, they may be able to provide additional information about the creation of the document that will help you determine its status.

IV.   Conclusion

Government information is a valuable national resource.  Section 105 places U.S. government works in the public domain to facilitate use of this important resource.   If users cannot clearly determine that a U.S. government document belongs in the public domain, they may have to treat the work as protected by copyright – which seems contrary to the reason Congress placed such works in the public domain.

Ideally, U.S government agencies would clearly indicate whether a work belongs in the public domain. Historically, this has not been the case; however as more works become available digitally, U.S. government agencies may increasingly provide rights information indicating whether the works fall within the public domain.

Despite the challenges involved in determining the copyright status of some U.S. government works, it is possible to identify many U.S. government works as part of the public domain.  Although it may not be as simple as it should be to identify public domain “work[s] of the United States Government”, the U.S. government remains an important source of public domain material.

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Marc Jaffy is a graduate of the Kent State University School of Library and Information Science and former practicum student at the OSU Libraries Copyright Resources Center 

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