Tag: public domain (page 1 of 2)

Public Domain Day 2019 Recap

Public Domain Day 2019 graphic

2019 began with a celebration; after a 20-year pause, works published in the United States in 1923 entered the public domain. In recognition of this occasion, Ohio State University Libraries began the Public Domain Day project, collaborating with partners across the university to bring attention to works whose term of copyright protection has expired and to encourage creative uses of public domain materials in the University Libraries’ collections.

In January of this year, the Public Domain Day project website was launched to share more information about the project and the partnerships involved. With a focus on public domain music, the project website highlighted a selection of musical scores that we believe entered the public domain in the U.S. in 2019.

Additionally, project partners worked together to provide a number of events throughout the year. Here is a recap of all the events for Public Domain Day 2019:

  • January 25, 2019: Public Domain Day Information Session. Copyright Services offered an information session with an overview of the ways a work may enter the public domain in the United States and how public domain materials may be used and shared to promote innovative research and creative expression. We also shared our plans for celebration at OSU with the Public Domain Day Project.
  • March 1, 2019: Public Domain Chamber Music and Chat. Two compositions, published in 1923, were the focus for this concert event. Composer Paul Hindemith’s Cello Sonata op. 25 no. 3 and String Quartet op. 22 were performed by OSU School of Music Professor Mark Rudoff and the Janus Quartet. The event included opening remarks on the significant public domain developments in 2019 and additional background on the two pieces performed. With the assistance of Professor Beth Black, Undergraduate Engagement Librarian for University Libraries, this event was also offered as a session for the Second-Year Transformational Experience Program (STEP).
  • April 11, 2019: OSU Symphonic Band concert featuring ‘McKinley’s Own’ march by Karl King. The OSU Symphonic Band, conducted by OSU School of Music professor Scott A. Jones, performed a new edition of composer Karl L. King’s march McKinley’s Own. Video of the performance is available online, with audio of the performance available on the Public Domain Day project website. The new edition, edited by Professor Alan Green and arranged by Scott A. Jones and Craig Levesque, was dedicated to the public domain through the CC0 waiver. The score and parts (imposed) are made available on the Public Domain Day project website.
  • November 4, 2019: Using Public Domain Materials in Your Teaching and Research. This workshop, offered by Copyright Services, provided participants with information and resources for identifying, finding, and using public domain text, images, and other creative works.
  • November 6, 2019: Safety Last! Film screening with the Wexner Center for the Arts. Safety Last!, released in 1923, is a silent film starring Harold Lloyd. This screening at the Wexner Center for the Arts featured a 1989 soundtrack composed by Carl Davis, with orchestration based on the line-up of the Paul Whiteman Orchestra of the 1920s and inspired by popular music of that era. The Ohio State University Libraries’ Silent Film Sheet Music Collection offers a number of musical scores that are arranged for the typical film theatre orchestras of the early 20th century. Three 1923 scores from that collection have been digitized and made available on the Public Domain Day project website. Scores from 1923 include:
    • Clark, C. Frederick, Midnight (Novelty Fox Trot)
    • Coots, J. Fred and Dave Ringle (arr. Ted Eastwood), Home Town Blues
    • Savino, Domenico, Misterioso all Valse (Dramatic Suspense)

On January 1, 2020, we will once again celebrate Public Domain Day. In 2020, we will welcome into the public domain works published in the United States in 1924. To keep up to date on new events offered in 2020 and to read more about the project, visit the Public Domain Day project website at go.osu.edu/Public DomainDay .

_____________________________________________________________________________________

By Maria Scheid, Copyright Services Coordinator at Copyright Services, The Ohio State University Libraries

Articles of Interest: January-June 2019

This post highlights articles published in the first half of 2019 with a focus on copyright, especially as it pertains to libraries, higher education, and scholarly communication. Links to the full-text articles are provided; [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

Bow, C. & Hepworth, P.  (2019). Observing and Respecting Diverse Knowledge Traditions in a Digital Archive of Indigenous Language Materials. Journal of Copyright in Education and Librarianship, 3(1), 1-36. doi.org/10.17161/jcel.v3i1.7485 [OA full text]

Bunker, M. (2019) Decoding Academic Fair Use: Transformative Use and the Fair Use Doctrine in Scholarship. Journal of Copyright in Education and Librarianship, 3(1), 1-24. doi.org/10.17161/jcel.v3i1.6481 [OA full text]

Katz, R. (2019). A Pilot Study of Fan Fiction Writer’s Legal Information Behavior. Journal of Copyright in Education and Librarianship, 3(1), 1-29. doi.org/10.17161/jcel.v3i1.7697 [OA full text]

Harbeson, E. (2019). Thinking Globally About Copyright: ARSC at the World Intellectual Property Organization. ARSC Journal50(1), 100–107. [OSU full text]

Mallalieu, R. (2019). The elusive gold mine? The finer details of Creative Commons licences – and why they really matter. Insights: The UKSG Journal32, 1–7. doi.org/10.1629/uksg.448 [OSU full text] / [OA full text]

Rosenblatt, B. (2019). Blockchain: The Hype and the Reality. Publishers Weekly266(12), 26. [OSU full text]

Russell, C. (2019). Librarian of Congress appoints new Register of Copyrights. College & Research Libraries News80(5), 298. [OSU full text] / [OA full text]

Schumacher, S. (2019). Unlocking the Public Domain. Visual Resources Association Bulletin46(1), 1–11. [OSU full text] / [OA full text]

Weeramuni, L. (2019). How to Fight Fair Use Fear, Uncertainty, and Doubt: The Experience of One Open Educational Resource. Journal of Copyright in Education and Librarianship, 3(1), 1-21. doi.org/10.17161/jcel.v3i1.9751 [OA full text]

Legislation & Policy Developments

Abbott, N. (2019). Marrakesh Treaty in Action. Library Journal144(4), 32–34. [OSU full text]

Libraries

Coates, J. (2019). Copyright: More Copyright Reform for Libraries in 2019. InCite40(1/2), 22–23.  [OSU full text]

Lipinski, T. A., & Henderson, K. A. (2019). Legal Issues Surrounding the Collection, Use and Access to Grey Data in the University Setting: How Data Policies Reflect the Political Will of Organizations. Grey Journal (TGJ)15(2), 77–90. [OSU full text]

Reed, J. B., & Jahre, B. (2019). Reviewing the Current State of Library Support for Open Educational Resources. Collection Management44(2–4), 232–243. doi.org/10.1080/01462679.2019.1588181 [OSU full text]

Schmidt, L. (2019). Library VHS in Danger: Media Preservation in Academic Libraries. Journal of Copyright in Education and Librarianship, 3(1), 1-23. doi.org/10.17161/jcel.v3i1.7109 [OA full text]

Towery, S., Price, A. N. & Cowen, K. E. (2019).  Video Streaming Licenses: Using a Decision Tree and Workflow Chart. Journal of Copyright in Education and Librarianship, 3(1), 1-32.  doi.org/10.17161/jcel.v3i1.7483 [OA full text]

Publishing & Scholarly Communications

Gumb, L. (2019). An open impediment: Navigating copyright and OER publishing in the academic library. College & Research Libraries News80(4), 202–215. doi.org/10.5860/crln.80.4.202 [OSU full text] / [OA full text]

Heaton, R., Burns, D., & Thoms, B. (2019). Altruism or Self-Interest? Exploring the Motivations of Open Access Authors. College & Research Libraries80(4), 485–507. [OSU full text] / [OA full text]

Prosser, D. (2019). Researchers: stop signing away your copyright. Research Information, (101), 36. [OSU full text]

Willinsky, J. & Rusk, M. (2019). If Research Libraries and Funders Finance Open Access: Moving beyond Subscriptions and APCs. College & Research Libraries80(3), 340–355. [OSU full text] / [OA full text]

_____________________________________________________________________________________

By Maria Scheid, Copyright Services Coordinator at Copyright Services, The Ohio State University Libraries.

The Wait is Over! Public Domain Day 2019

What do F. Scott Fitzgerald, Agatha Christie, Buster Keaton, and Jelly Roll Morton all have in common? They all have works that are entering the public domain in the U.S. today on Public Domain Day!

Today is Public Domain Day and this year’s celebration is a special one for those of us in the United States. After a 20-year pause, works published in the United States will once again be entering the public domain on a rolling basis. This year, we welcome works first registered or published in the United States in 1923.

As public domain works, these books, films, compositions, and works of art can be used without copyright restrictions. This means, for example, that instructors can make copies of literary works for their students, ensembles can create new arrangements and publicly perform musical works, and students can adapt and remix works freely into their own projects and assignments. Works in the public domain can be used to encourage and support learning, scholarship, and creative endeavors.

Why the 20-year wait?

Copyright protects many different types of creative works, including books, film, music, and art. And while the U.S. Constitution requires copyright be granted only for “limited Times,” the term of copyright protection has increased over the years. In 1998, Congress passed the Copyright Term Extension Act (CTEA), which extended the term of protection for published works by an additional 20 years. For works published before 1978, this meant a term of protection of 95 years from publication date. We have now reached the point where eligible works are reaching the 95-year mark.

In addition to these published works, we will see certain unpublished works enter the public domain in the U.S. on this day; specifically, unpublished works from authors who died during 1948 and unpublished works created in 1898 for anonymous and pseudonymous authors and works made for hire, and unpublished works when the date of the author’s death is unknown.[1]

Celebrating the Public Domain at OSU

Copyright Services has collaborated with partners across OSU to share public domain works in the University Libraries collections, focusing on musical compositions published or registered in the U.S. in 1923. Tomorrow, January 2, you can visit the Public Domain Day Project website (go.osu.edu/PublicDomainDay) to learn more about the partners involved in this project, the events planned for 2019, our plans for releasing new recordings of select musical works (to be dedicated to the public domain via Creative Commons CC0), and to access music scores and audio. New works will be added throughout 2019.

_____________________________________________________________________________________

By Maria Scheid, Copyright Services Coordinator at Copyright Services, The Ohio State University Libraries

[1] Depending on the work you are dealing with, there may be some additional considerations in determining the copyright status of a work. Two great resources for thinking through copyright term and public domain are the American Library Association’s Public Domain Slider and Peter Hirtle’s Copyright Term and the Public Domain in the United States chart.

 

Public Domain Christmas Songs

It’s that time of year when Christmas lights are strung and ugly sweaters are worn. When singing along with your favorite carols have you ever thought of the copyright status behind these famous songs?

Here are nine well known Christmas songs that are in the public domain.

Away in a Manger

Once rumored to have been authored by theologian Martin Luther, this carol made an early appearance in 1882. Originally titled “Luther’s Cradle Song” an anonymous author attributed the song as one Luther wrote for his children. This was dispelled for a number of reasons, and a source states the song may have instead been associated with a celebration for the 400th anniversary of Luther’s birth in 1883. There are two musical settings commonly assigned with the lyrics, one by William J. Kirkpatrick (1895) and the other by James Ramsey Murray (1887). In 1996 it was ranked as the second most popular carol in Britain. The text of the song is based on verses from Luke 2:4-7. Source: Away in a Manger

Deck the Halls

Originally titled Deck the Hall, this is a Welsh melody that dates back to the 16th century. The famous chorus ‘fa la la la la’ may date to the medieval period, while the modern English lyrics were written by Scottish musician Thomas Oliphant in 1862. The melody comes from a traditional Welsh carol “Nos Galan”, a traditional New Year’s Eve ballad. The plural of ‘hall’ was first published in 1892. Source: Deck the Halls Song History

Jingle Bells

Perhaps one of the most well-known Christmas songs, Jingle Bells was originally written for the Thanksgiving season by James Lord Pierpont in 1857. It was copyrighted as One Horse Open Sleigh, but the name was revised when it was published in 1859 as “Jingle Bells, or the One Horse Open Sleigh”. The title comes from the common practice of placing bells on a horse’s harness to avoid collisions because a horse drawn sleigh makes little noise. Jingle Bells was the first song broadcast from outer space when two astronauts on Gemini 6 performed the song aboard the spacecraft in 1965 after reporting a sleigh like object in the polar orbit. Source: 8 Things You May Not Know About “Jingle Bells”

Jingle Bells sheet music

Pierpont, J, and J Pierpont. The One Horse Open Sleigh. Oliver Ditson, Boston, monographic, 1857. Notated Music. https://www.loc.gov/item/sm1857.620520/

Silent Night

Translated from the German “Stille Nacht, heilige Nacht”, the song was composed by Franz Xaver Gruber, a schoolmaster, with lyrics by Father Joseph Mohr, in Oberndorf bei Salzburg, Austria in 1818. Bing Crosby’s version is the third bestselling single of all time, and the song was declared an intangible cultural heritage by UNESCO in 2011. Silent Night, as we know it today was translated to English in 1859 by John Freeman Young, an Episcopal priest. Source: Silent Night

Up on the House Top

Written by Benjamin Hanby in 1864, Up on the House Top was considered the first Christmas song to focus primarily on Santa Claus. Sources credit Hanby’s inspiration for the song as Clement C. Moore’s 1822 poem “A Visit from St. Nicholas”, commonly known as “The Night Before Christmas”. The song was originally titled Santa Claus and meant to be performed as a sing along. According to The Christmas Carol Reader it is the second oldest secular Christmas song, only surpassed by Jingle Bells. Source: Up on the Housetop

Toyland

Written for the 1903 operetta Babes in Toyland, the whimsical song features a cast of Mother Goose characters in a magical toy filled land. The lyrics were written by Glenn MacDonough with music by Victor Herbert. The lyrics of the song have no direct ties to Christmas or the holiday season, but the spirit of the song, the happiness toys bring to children, has been associated with Santa Claus. The operetta has been adapted into 4 films of the same title, beginning in 1934 to the most recent animated version in 1997. Source: Babes in Toyland

The Twelve Days of Christmas

One of the most well-known cumulative songs, the carol describes an increasingly grand set of gifts for the twelve days of Christmas, beginning Christmas Day. The song was first published in 1780 without any music, and has a Roud Folk Song Index of 68. The standard tune it is now associated with was derived from a 1909 arrangement by Frederic Austin. In one 19th century variant, the gifts come from “my mother” rather than “my true love”.  PNC Financial annually calculates the total cost of all the gifts presented in the song, and the estimate for 2018 total comes to $39,0094.93. Source: The Twelve Days of Christmas Explained

We Wish You a Merry Christmas

The famous greeting which gives name to the song, “a merry Christmas and a happy New Year” is recorded from 18th century England. The song is a nod to the dynamic between the rich and poor, and describes townspeople parading the steps of the rich calling for figgy pudding and refusing to leave until it was delivered. The modern popularity of the song comes from a Bristol based composer Arthur Warrell, who arranged the song for the University of Bristol Madrigal singers in 1935. The very early history of the carol is unknown; it is notoriously missing from popular song books of the 18th and 19th centuries. Source: We Wish You a Merry Christmas

O Christmas Tree

Also known as O Tannenbaum, O Christmas Tree is a German Christmas song; a tannenbaum is the German word for a fir tree. The modern lyrics were written in 1824, and instead of referring to Christmas, reference the evergreen as a symbol of constancy and faithfulness. The custom of Christmas trees developed throughout the 19th century, and the song became associated with the holiday. The song was famously used in the 1965 television special A Charlie Brown Christmas. Source: O Christmas Tree: Lyrics and Chords

 

Copyrighted Christmas Songs

Unfortunately the songs listed below are still under copyright protection so we’ll have to wait a little while before they enter the public domain.

Winter Wonderland
Written: 1934
Public Domain: 2030

Rudolph the Red Nosed Reindeer
Written: 1939
Public Domain: 2035

Frosty the Snowman
Written: 1950
Public Domain: 2046

Jingle Bell Rock
Written: 1957
Public Domain: 2053

Rockin’ Around the Christmas Tree
Written: 1958
Public Domain: 2054

Little Saint Nick
Written: 1963
Public Domain: 2059

Holly Jolly Christmas
Written: 1964
Public Domain: 2060

_____________________________________________________________________________________

By Allison DeVito, Copyright Services Specialist at Copyright Services, The Ohio State University Libraries

 

 

 

Back to the Basics with Copyright Law

Today is the 9th anniversary of the Copyright Corner blog, with the first post (Why Copyright Education?) published back in August of 2009. Since then, we’ve had posts covering a wide-range of issues; from copyright protection for patterns and DMCA exemptions to copyright issues faced by units across OSU Libraries and tips on finding a copyright owner. For this post, we are going back to the basics and looking at some of the fundamentals of copyright law in the United States.

Why do we have copyright?

There are a number of theories on the purpose of copyright. Countries may have laws that encompass one or more of these theories.

One common theory for the purpose of copyright is utilitarian. Under this theory, we provide authors a copyright in the works they create as an incentive to create and disseminate new works. The law is organized to promote the collective welfare of society, but recognizes that unless creators can recoup the costs involved in the creation and dissemination of their works, they won’t produce the works. Copyright gives to authors and creators exclusive rights in the works they create, which in turn allows them to suppress competition for a limited time.

Much of U.S. copyright law seems to align with this theory, with Article I, Section 8, Clause 8 of the U.S. Constitution granting Congress the power “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”

Another theory for the purpose of copyright is the author’s rights theory. Under this theory, the primary purpose of copyright is to recognize and protect the emotional bond between artists and their creations, acknowledging creative works as manifestations and extensions of their author’s personality. Countries whose laws are influenced by this theory may provide moral rights for authors and creators that exist separately from economic rights.

What exactly is copyright and how do you get it?

Copyright is a legal right that allows creators and authors the ability to control certain uses of their works. The owner of a copyright has a number of exclusive rights that are provided under the law (these rights are discussed below).

In the U.S., copyright protects original works of authorship that are fixed in a tangible medium of expression and copyright exists at the moment of fixation. In other words, copyright protection is automatic.

Including a copyright notice (e.g., © 2018 The Ohio State University) is optional for works created today but there can be some advantages to including a notice on your copyrighted work. And registration with the U.S. Copyright Office? That’s also an optional step that provides some important benefits to copyright holders.

Continue reading

Public Domain Day 2018

It is the beginning of another year, which means the welcoming of new works into the public domain for Public Domain Day 2018. Today, countries around the world will expand their public domain with creative works whose term of copyright protection ended in 2017. As public domain works, these books, films, compositions, and works of art can be copied, shared, and remixed without copyright restrictions.

We have written before about the extension of the term of copyright protection under U.S. law and its impact on our public domain (we’ve also written about the ability of copyright owners to bypass this lengthy wait and dedicate their works to the public domain via Creative Commons CC0). As a result of this extension of copyright and Congress’s decision to apply the extension of copyright protection retroactively to existing works, those of us in the United States will need to wait until January 1, 2019 before we see new published works enter the public domain.

For now, the U.S. public domain will add a much smaller group of works—unpublished works whose author died in 1947 and were not registered with the U.S. Copyright Office prior to 1978.

For an interesting read on some of the published works that are entering the public domain in countries around the world, head over to The Public Domain Review for their picks for the Class of 2018.

_____________________________________________________________________________________

By Maria Scheid, Copyright Services Specialist at Copyright Services, The Ohio State University Libraries

Public Domain Day 2017

Today on January 1st, we celebrate Public Domain Day—the day each year where works enter the public domain for many countries around the world following the expiration of their term of copyright protection.

Public domain works are works free of copyright restrictions; works capable of being freely reproduced, shared, and built upon by users. As we have discussed on this blog before, a robust public domain supports the underlying purpose of U.S. copyright law to promote the progress of knowledge and learning.[1]

But while many counties will see new works added to the public domain this year, there will be no published works entering the public domain in the United States. In fact, no published works will be added to the public domain in the United States until 2019.

Why the delay? The U.S. Constitution states that copyright protections may exist only for “limited times,” but our copyright law has been amended several times to extend the length of the term of protection. Under our first federal copyright statute, copyright protection lasted for an initial term of 14 years, renewable for another 14 years. The current term of protection for copyrighted works is the lifetime of the author plus an additional 70 years. As a result of this extension of copyright and Congress’s decision to apply the extension of copyright protection retroactively to existing works, works published in the United States from 1923 to 1977 will remain protected for 95 years after their date of publication. This means that works we would normally expect to enter the public domain today (i.e., published works whose author died in 1946) will not enter the public domain until much later.

For more information on Public Domain Day and works entering the public domain in other countries this year, visit:

_____________________________________________________________________________________

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

 

[1] For this reason, authors today may chose to dedicate their work to the public domain through means such as the Creative Commons Public Domain Dedicator (CC0) tool rather than wait for the term of copyright protection to expire.

Copyright Roundup, Part II

In Copyright Roundup Part I we discussed the fair use of an “aesthetically displeasing” photograph, copyright protection for cheerleading uniforms, and copyright ownership for non-human authors. In this post we will discuss the latest development in the Google Books litigation, fair use considerations in issuing DMCA takedown notices, and the public domain status of Happy Birthday to You.

Another fair use win for Google in most recent Google Books lawsuit.

Many of our readers are familiar with the Google Books litigation which began in 2005 when a number of publishers and the Authors Guild brought separate lawsuits against Google for Google’s Library Project.[1]  As part of the project, Google partners with research libraries to digitize works in the participating libraries’ collections. Digital scans of books are indexed and added to Google Books, providing the public with the ability to do full-text searches of terms within the books. Users can use the full-text search function in Google Books to determine how many times a particular term appears in any book within the Google Book collection. Absent an agreement with the copyright owner, Google does not provide the full scans to the public. Users can, however, see snippets of text containing the searched-for terms. Additionally, Google provides a digital copy of the scanned book back to the submitting library.

On October 16, 2015, the Second Circuit affirmed the lower court’s decision, holding Google’s digitization activities to be a transformative fair use. In analyzing the fair use factors, the court identified Google’s new purpose in providing otherwise unavailable information about the books, allowing users to identify works that include (and do not include) terms of interest. The court also found the snippet view to add important value to the search function, providing users with the context necessary to determine if the book fell within their scope of interest. While Google is a for-profit company, the Google Books project is provided as a free service without advertising. The court found Google’s ultimate profit motivation was not enough to deny a fair use finding in light of other factors, including its transformative purpose in using the works.

The court held that use of the entire work was reasonably appropriate to achieve the transformative purpose of enabling a full-text search function. For the snippet view feature, Google had a blacklisting process in place to permanently block about 22% of a book’s text from snippet view. In addition, researchers for Authors Guild were only able to access an aggregate of 16% of a text. The fragmented and scattered nature of the snippets results in an insubstantial amount of the work being displayed.

The court held the search and snippet view functions did not serve as a competing substitute for the original works. While snippet view may cause some loss of sales it did not rise to the level of meaningful or significant effect upon the potential market or value of the copyrighted work required to tilt the fourth factor in favor of the Authors Guild.

Finally, the court held that providing library partners with the digital copies of the works in their own collections was not infringing. Whether the libraries would then use the copies for infringing purposes was mere speculation and insufficient to place Google as a contributory infringer.

Why does it matter?

Despite ongoing litigation, Google continued their partnerships with libraries to digitize works in library collections, meaning they faced huge potential costs in damages. Consequently, this decision was a big fair use for Google, partnering libraries, and the public who use Google Books.

In his opinion, Judge Leval emphasized the goal of copyright to expand public knowledge and understanding, making the public, rather than the individual author or creator of a work, the primary beneficiary of copyright. Google’s activities served this goal. Public knowledge was augmented by making available information about the scanned books without serving as a substantial substitute for the copyrighted works.

The Authors Guild has indicated their intention to appeal the ruling but it will be up to the U.S. Supreme Court to decide whether they will hear the case.

Continue reading

Copyright Roundup, Part I

The past few months have seen a number of interesting trials and developments in copyright law. We are providing a two-part Copyright Roundup to summarize those cases you may have missed and to let you know why they are important. In part I, we discuss embarrassing photos, cheerleading uniforms, and monkey selfies.

Blogger’s use of “aesthetically displeasing” photograph of Miami Heat investor still a fair use.

We first covered the facts in the Katz v. Chevaldina case in our blog post, “Copyright as an Instrument for Censorship?”, noting that Mr. Katz had filed an appeal of the district court’s finding that defendant Irina Chevaldina was entitled to summary judgement based on a fair use defense. On September 17, 2015, the 11th Circuit released their opinion, affirming the lower court’s decision. Analyzing the purpose and character of use, the court found every use of the Mr. Katz photo to be primarily educational, rather than commercial (educating others about the nefariousness of Mr. Katz) and use of the photo to be transformative (Chevaldina used the photo to ridicule and satirize Mr. Katz’s character). When considering the nature of the copyrighted work, the court found the previously published photo to be primarily a factual work (the photo was a candid shot and the court found no evidence to establish that the photographer attempted to “convey ideas, emotions, or influence Katz’s expression or pose”.[1] Finally, the use of the photo would not materially impair Katz’s incentive to publish the work—because Katz obtained ownership to prevent publication, there was no market for the original work.

Why does it matter? Katz’s conduct in initiating this lawsuit raised some big questions about the role of copyright law in censoring speech. In this case, Katz’s attempt to use copyright law as a shield against unwanted criticism ended up helping to strengthen Chevaldina’s fair use defense. The court’s central question under the fourth fair use factor was whether Chevaldina’s use of the photo would cause substantial economic harm that would impair Katz’s incentive to publish the photo. By obtaining the copyright in the photo and initiating a lawsuit to prevent publication of the photo, however, Katz demonstrated his desire to stop any use of and access to the photograph. The court held that Chevaldina’s use of the photo did not impair Katz’s incentive to publish the photo because Katz had no incentive to publish the photo and the likelihood of Katz changing his mind was “incredibly remote.”

The court also had an interesting analysis of the factual nature of the photograph. For a thoughtful discussion of this point, read Kevin Smith’s post, “Photography, Fair Use and Free Speech.”

Copyright protection for cheerleading uniforms: Varsity Brands v. Star Athletica

Varsity Spirit Corporation and Varsity Spirit Fashions and Supplies, Inc. (Varsity) designs and manufactures cheerleading apparel and accessories, having received copyright registrations for many of their design sketches. These designs included different combinations and arrangements of stripes, zigzags, chevron, and color blocks. The question on appeal was whether these elements were needed to make a cheerleading uniform or whether the design elements could exist separately from the uniform.

On August 19, 2015, the Sixth Circuit reversed the district court’s decision that Varsity’s designs were not physically or conceptually separable from the utilitarian function of the cheerleading uniform, holding that the graphic designs on Varsity’s cheerleading uniforms were separate and therefore copyrightable. The Court distinguished Varsity’s design from dress designs, which typically do not receive copyright protection.

Why does it matter? U.S. copyright does not protect useful articles. Useful articles are articles that have a utilitarian function beyond portraying the appearance of the article or conveying information. To the extent that a work includes a useful function, copyright will only protect those original elements of the work that can be independently separated from the useful function of the work.

Prior to this case, the Sixth Circuit (binding authority for Ohio’s federal district courts) had not adopted an approach for determining separability. After reviewing the approaches taken by other circuits, the Sixth Circuit decided to adopt a hybrid approach to determine if a particular design is a copyrightable pictorial, graphic, or sculptural work. To make this determination, the following questions must be asked:

  1. Is the design a pictorial, graphic, or sculptural work?
  2. If yes, is it a design of a useful article?
  3. If the design is of a useful article, what are the utilitarian aspects of the useful article?
  4. Can the viewer of the design identify pictorial, graphic, or sculptural features separately from the utilitarian aspects of the useful article?
  5. Finally, can the pictorial, graphic, or sculptural features of the design of the useful article exist independently of the utilitarian aspects of the useful article?

In answering these questions, the court identified a utilitarian function of a cheerleading uniform to “cover the body, wick away moisture, and withstand the rigors of athletic movements.”[2] The court found that the top and skirt of the uniform could still be identified as a cheerleading uniform even without stripes, chevrons, color blocks, or zigzags. Finally, the interchangeability of the designs indicates the graphic features can exist separately and independently from the utilitarian features of the uniform.

Can a monkey own a copyright?

The “Monkey Selfie” case has taken an additional twist with a new lawsuit brought on behalf of Naruto, the crested macaque. The monkey selfie case began in 2011 when photographer David Slater took a trip to Indonesia and left his camera unattended. A monkey (Naruto) used the camera to take a number of photos of himself grinning into the camera. One self-portrait was reproduced in publications around the world, eventually being added to Wikimedia Commons under the presumption that the work was in the public domain.[3] This prompted Mr. Slater to issue several DMCA takedown notices.

In 2014, Mr. Slater published a book containing copies of the Monkey Selfies, continuing to assert himself as copyright owner of the photographs. Later that year, the Copyright Office revised the Compendium of U.S. Copyright Office Practices, to clarify that the U.S. Copyright Office would not register works produced by animals, including, for example, “a photograph taken by a monkey.”[4]

On September 21, 2015, PETA filed a copyright lawsuit on behalf of Naruto against Mr. Slater, alleging that Mr. Slater falsely claimed to be the author of the photographs and made unauthorized copies of the works for commercial purposes. The lawsuit seeks an order to permit PETA to administer and protect Naruto’s rights in the photographs, declaring Naruto the author and copyright owner of the works.

Why does it matter? U.S. copyright law does not specify human authorship, though the U.S. Copyright Office has provided guidance on the issue through the Compendium of U.S. Copyright Office Practices. This case raises a number of interesting questions around how we define, or should define, “author.” If non-human authors are recognized as eligible copyright owners, should lines be drawn? Should the law, for example, provide exclusive rights to machines? And if the author can’t communicate their preferences, should we allow someone to speak on their behalf?

***

We will continue our Copyright Roundup in part two, where we will look at some important fair use developments in the Google Books lawsuit and Stephanie Lenz’s “dancing baby” case against Universal Music and answer the question, “is Happy Birthday to You finally in the public domain?”

_____________________________________________________________________________________

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

 

[1] Katz v. Chevaldina, No. 14-14525 (11th Cir. 2015).

[2] Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237 (6th Cir. 2015).

[3] Wikimedia Commons refused to remove the photograph on the basis that Mr. Slater was not the author of the work. Without a human author, Wikimedia Commons argued, the work may not be protected by copyright.

[4] U.S. Copyright Office, Compendium of the U.S. Copyright Office Practices (3d ed. 2014) § 313.2.

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.

________________________________________________________________________________________

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

Older posts