Recently, our library has been given a collection of photographs that were previously on display in a local business location. These are photos of the customers of the business, many are children. These photos span several decades and are important to many.
We would like to digitize these photos and make them available via the internet because we believe these to be of sentimental, cultural, historical and academic value to our region and beyond.
The photos were given to our library by the business that had previously displayed them and also produced the photos. What are the issues of rights and permissions raised by making these images freely available online, especially given that many of those in the photos are children? Thanks for your help.
To answer the member’s questions, we must start with the fundamentals.
When accepting a donation of culturally significant photos, an archive should have a donor agreement or other documentation that addresses the following things:
Does the donor solely own the physical photos?
Is physical ownership being given to your institution?
Who authored the pictures? If not a company, what is their name and birthdate?
Does the donor solely own the copyrights?
Is copyright ownership being given to your institution? If not, what permission comes with the physical donation?
May the receiving institution license use by others (a “transferable license”)?
Were the copyrights registered?
Are there any reservations or conditions on this gift?
If donated as part of a will, obtain a copy of the will.
What is the value of the gift? (for tax purposes, if the donor wants to claim a deduction)
Confirming the scope of the donation, the conditions, and value of the gift creates a firm basis for future decisions, including how to address the potential risks of posting pictures of minors.
It is also helpful to get as much additional information as you can at the time of the donation:
To the best of the donor’s ability, what is the date, place, and identity of those in the pictures? What else of significance is being depicted?
What type of equipment was used to product the images?
Why were the images gathered?
Who collected the images?
Why is this collection significant; why should it be preserved and made available to the public?
Why does this collection fit into the mission of your institution?
Knowing as much as possible about the provenance and purpose of a collection makes it easier to access the protections built into the law for journalism and scholarship. And with that background, it is easier to assess the risks when the collection involves human subjects.
Those risks include:
Will this content be used by the institution in a way that violates New York’s bar on use of names and likenesses for commercial use? 
Are there any ethical considerations that bar including these images in the collection?
Is this depicting any personal health information?
Are there special sensitivities we must consider and plan for?
Will the names of those depicted be included in the metadata of the digital archive? If so, why is that necessary?
When it comes to minors (those under 18), additional risks are:
Will this reveal a minor’s youthful offender status?
Will this reveal participation in the social services system?
Does this depict an illegal act?
If the answer to any of the last eight questions is “yes,” a consultation with a lawyer, and perhaps an an image-by-image review, may be warranted. But while that may time time and resources, it may be worth it, since there still may be a way to digitize the photos and make them available via the internet…especially if they have sentimental, cultural, historical and academic value to our region and beyond.
 At an academic institution, if the images depict human subjects (of any age) consult the Institutional Review Board (“IRB”). Depending on how you design your project, it could be important.
 Here is the actual text of the law: “§ 50. Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”
 Depictions of exploitation, enslavement, abuse, or images that could be considered an “illegal sex act” (as defined by §130 the penal law) for instance. From the sound of it, that is not the case here, but at “Ask the Lawyer!” we try to be thorough.
A member asked about a request for the library to provide copies of photos from yearbooks for a class reunion.
One of the reasons I enjoy doing “Ask the Lawyer,” is the diversity of questions, and the often esoteric subjects I get to research as a result. This question is a prime example.
While the liability for copying copyright-protected yearbook photos is, in theory, the same as copying any other published, commercially-generated or amateur picture, I always like to check and see if the specific circumstances in the question have some directly on-point case law. So when this question came through the pipeline, I hit Lexis-Nexis® to search for cases of “yearbook infringement.”
Well. I found:
What I didn’t find was a string of case law based on simple copying of yearbook photos for non-scholarly or non-journalistic reasons, like promoting reunions, which is the nuance posed in the member’s question. But I suspect that is because when a claim based on such an action is threatened, if it has any teeth, it is quickly settled. Insurance carriers do not like litigation.
So, when your library gets a request for a might-still-be-protected yearbook photo, does it mean the request must be denied? No. Remember, if the use is non-commercial, and the other criteria are met, libraries can make copies under Copyright Act Section 108. Further, Under Section 107, patrons can make the copies themselves, and can claim fair use. But like with all things copyright, the devil is in the details. It all depends on the basis for the request, and the amount of content used.
Where must we draw the line? Somewhere between these two examples:
Example #1: A patron has requested the library copy a yearbook pages featuring Timothy McVeigh for use in coverage related to the Oklahoma City bombing. That person could get both a 108 copy, and a copy under fair use. This is especially true if the image selected actually showed it was from the yearbook, and was included as part of an essay, book, or documentary exploring the roots and reasons for the actions of a domestic terrorist.
Example #2: A patron has requested the library make copies of the individual photos of 100 less notorious graduates to promote Starpoint High School’s Class of ’86 reunion on Classmates.com. That request would not have that same protection at Example #1. If the original photographer or their heir could show it was an infringement, they could claim damages (even if the photo’s copyright wasn’t registered), and the library could find itself without a defense.
So how does a librarian deal with this type of request? As always, help the patron get access to the information they need, but protect the library. If the request is in person, once they have been given access to the book, your job is done (don’t help them with the copy machine). If the request is remote or inter-library, and you know they plan a purely commercial use, you can’t make that copy. This might be perceived as harsh—the requester is probably just a volunteer trying to organize a simple good time! –but you can let them know that the request they made exceeds your authority.
Bear in mind, it’s 2018. If they access or check out the yearbook and take pictures with their phone without your assistance, that is not something the library can control, nor be held responsible for. The patron themselves might have liability, but your institution will not…unless your library is part of the school organizing the reunion, in which case… seek back-up!
Please note: this highly restrictive answer has nothing to do with the fact that somewhere in the Town of New Hartford, NY, there is a picture of me in a Def Leppard t-shirt with 80’s hair.
 This is not a paid commercial endorsement of Lexis. It’s just the service I use. But for the record, I have preferred it since law school, where “Lexis or Westlaw?” is the equivalent of “Coke or Pepsi?”
 Stanton v. Brunswick School Dep’t, 577 F. Supp. 1560 (January 23, 1984). She won!
 Cantor v. NYP Holdings, Inc., 51 F. Supp. 2d 309 (June 4, 1999). He lost! (Not enough original content in his work).
 Granger v. Klein, 197 F. Supp. 2d 851 (March 29, 2002). Josten’s got an early dismissal of most of the claims.
 Unless you are a member of Congress and can introduce legislation to change the Copyright Act.
When it comes to digitizing large theater and music program collections, it is well-established that a library can digitize anything before 1923, and that if there are no copyright notices on them, can digitize anything before 1978. But if there are multiple "copyrightable" elements in the works (advertisements, photos, actor biographies, illustrations, etc.) is it okay to digitize them? What is the risk in digitizing a program when there is a copyright notice on one or more element in the program, but not all of it? If a theater or musical society is defunct, is it okay to digitize the programs associated with it beyond 1978 or when it may have a copyright notice?
This is a complex issue (although not nearly as complex as assessing a library wing full of dramatic and musical works). To unpack this, I will take advantage of a form suggested by the topic: the opera libretto.
ALTO: Can works with no copyright notice before 1978 be safely digitized?
BASSO: Beware, if they were previously unpublished or the trademark is still monetized.
ALTO: What about text works with multiple works inside them?
BASSO: A compilation notice may protect the whole system.
ALTO: What about a work included in an unregistered collection?
BASSO: Beware! That work may have a separate protection.
ALTO: If a theatre organization has folded, can their work be duplicated?
BASSO: The copyright could have been transferred, so…it’s complicated.
SOPRANO: So you’re saying…[crescendo] you DON’T KNOWWWWWW?
Okay, enough of that.
The bottom line: There is no bright-line rule I can provide to give assurances for works that are post-1923 (and, for unpublished works like journals or private recordings, items authored prior to that date). Between image rights, trademark, privacy, and overlapping copyright terms, projects like the one described in the question can bring an array of legal considerations. Adding music to the equation—which is exempted from §108, the law that allows certain copying at libraries—only heightens the concerns.
The key to designing a digitization project that can survive this type of risk assessment resides in the question: why does the collection, and the particular items in it, need to be digitized in the first place?
If the answer is, “for preservation,” then documenting, on a work-by-work basis, that either there are no protected elements in the work, and that all 108 factors have been met, is the key (NOTE: this would likely involve restricting some of the collection to on-site access only).
If the answer is, “for ADA adaptability,” then documenting, on a work-by-work basis, that the digitization was only for purposes of making an accommodation is the key.
If the answer is, “so the whole world has easy access to high-resolution, searchable, meta-tagged copies of the material,” then verifying, on a work-by-work basis, that no valid copyright or other bar to duplication and online publication is the key. Materials still under copyright could not be available for download, but could be listed as on-site and available for copying if allowed per §108.
If the answer is, “so the whole world has internet access to low-resolution, water-marked, searchable, thoughtfully meta-tagged copies of representational selections of each title (whether under copyright, or not), presenting the bare minimum of what’s needed for researchers to determine what we have on site and available for §108 copying,” then carefully following the four “fair use” factors is the key.
If the answer is, “so the whole world has internet access to our carefully curated, scholarship-oriented, presented-with-commentary-and-criticism, non-market-disrupting, selective array of material carefully culled to represent the breath and scholarly value of our larger collection of theatrical and musical materials available for §108 copying” then designing an end product that meets the four “fair use” factors is the key.
I realize this is a chicken-and-egg reply: if you can’t clear answers on what you can do with the material, how can you envision what to do with it? My reply to that is: trust that your mission to provide access to information is supported by the law. Think about the materials, develop a theme as to why access to them is important, acknowledge any potential boundaries, and a legal solution can be found. Bring in a lawyer to advise on specifics when needed, like a decision to invoke “fair use,” to set up clear parameters for copyright determinations, or how to best document use of §108.
Since access is your mission, copyright should only inform, not deter it
Sometimes, you just need a lawyer. This RAQ can cover a lot of helpful general ground, but some things—like designing a particular fair use, or crafting the legal parameters for a specific project—can only be done through confidential legal advice based on viewing the precise materials and circumstances.
We are in the process of transferring old VHS tapes to DVD and then to a secure internet cloud.
The tapes are ours ranging from 1988- 2001, we taped specific classes with numerous instructors who were aware of the taping process. Since the tapes belong to us are there any copyright issues in reproducing and offering access to for a fee through our Lakeside Learning Center, or reproducing as a DVD and selling?
We also have very old cassette tapes of a similar nature. We possess them and instructors being taped were fully aware.
We would like to offer these as an MP3 for paid access.
Putting the tapes on the cloud: it is great that educational institutions are saving and promoting their accumulated knowledge this way. But aside from the copyright issues the member asks about (which we’ll get to at the bottom of this reply), the transfer and publication of legacy instructional material can bring some additional legal considerations.
Here are some “red flags” for converting video of your past lectures for digital re-sale.
In New York, the commercial use (including sales of instructional DVDs, as mentioned in the question) of a person’s image, likeness, and name must be with written permission. Of course, for employees whose routine duties include being recorded (like newscasters), that consent is addressed at the start of the job. But for instructors who may have been aware they were being taped in 1988, but weren’t aware that the tape could be acquired by paid viewers later via the Internet, there could be some risk that a past instructor might object to being included.
Further, in the event the instructor was an employee covered by a collective bargaining agreement or other employment contract at the time of filming, they could have some rights you need to consider. A quick check with a Human Resources department should be able to confirm if any past or current agreement poses any complications.
And finally, in the event the instructor who was filmed was not an employee, but under a speaker agreement--perhaps speaking for a small fee—an institution must exercise caution, since awareness of being filmed does not constitute permission to mass-produce the product and sell it in the marketplace. If possible, sending a note to the former speaker, thanking them for their past participation and offering a small fee in exchange for their signature on written permission for the new use, is best.
The bottom line: there are a lot of possible permutations to the “image use” issue. To avoid them, whenever possible, verify that your institution has written, signed permission to use a person’s image before selling any newly converted recordings.
Accuracy and Reliability Disclaimer
In the event any of the instructional materials relate to a trade, profession, or other topic governed by prevailing standards, law, or regulations, a disclaimer that carefully clarifies that the content was generated in 1988 (or whatever year applies), might be wise.
Of course, if the content is opinion-based, that is not an issue. But if the person is relating an objective best practice, regulation, or law, making sure a viewer is warned that the information could be out of date is critical.
It’s a long shot for the scenario posed by the member, but in the event there is any trademarked material (for instance, a set of instructional booklets with a prominent logo) be wary before digitizing and charging for access. The incidental use of another entity’s trademark could create an alleged infringement. Fortunately, as can be seen in a lot of reality TV, this can be avoided by simply blurring the mark!
The member is correct; if the institution (through its employees) is the entity that created the recording, and there is no written agreement to the contrary, the institution owns the copyright, and can duplicate, sell, and create derivative works based on the content.
However, care should be taken to verify that no independently owned content is contained within the video (a person reading a poem, for instance). While under many circumstances such inclusion can qualify as a “Fair Use,” that is not always the case (for more on this caveat, see the “Recently Asked Question” posted on Saturday, January 27, 2018).
 Please note: this issue is different from digitization projects by libraries who own, but did not produce, the content!
When digitizing radio broadcasts of cultural significance (such as a talk show confronting social issues), must a library, museum, or archive remove any separately copyrighted songs before posting the recordings?
This question assumes that the library, museum, or archive owns or has a license to use the overall recording of the broadcast.
When digitizing radio broadcasts for online (not-for-profit, academic) access, there are a number of legal issues to consider: intellectual property, contract, privacy, preservation, etc. But the question focuses on copyright, so this answer does, too.
And that answer is…yes, including copyright-protected songs in digitized broadcasts poses a risk of an infringement claim--but that risk does not need to trump the basis for preserving the broadcast in the first place.
How does the law help a digital archive strike that balance? Here are some options:
Option 1: If the copyrighted songs are not important to the broadcast, and can be removed without affecting the integrity of the broadcast, remove them.
If the basis for preserving and providing access to the broadcasts (capturing a moment in time, showing a spirit, confirming an approach) is not served by the presence of the songs, the best legal option might be to remove them, noting the redactions in a manner appropriate to the archive.
That said, I can only imagine a few scenarios where this is this case. So, next we have…
Option 2: Ask for acknowledgement of Fair Use, and permission
If not onerous, asking the copyright holder to acknowledge the Fair Use of their valid copyright, and to consent to such use in case later rights holders disagree, can be a wise step.
HOWEVER, as it can alert an owner to a potential claim, this should only be attempted with careful, customized input by an attorney, with due consideration as to how to avoid making an adverse admission, and what the implications could be if the rights to the song are later transferred (since one person’s Fair Use is another person’s rip-off).
Most importantly, such acknowledgement should only be sought prior to the recordings being posted. That is because the library, museum, or archive may want to protect their ability to simply claim…
Option 3: Fair Use
Including the songs could be non-infringing if the use meets the requirements of “Fair Use.” This is a posture taken by many online archives, and with good reason: Fair Use is a creature of both case law, and convention, so for most scholars and librarians, it is important to hold the Fair Use line, letting the world know that this important exception to infringement is alive and well.
That said, a “Fair Use” defense is assessed via a four-factor analysis (see the footnote); in this type of case, each broadcast recording and song would be subject to its own analysis.
While there is no case law directly on point, the recent case of Bouchat v. Baltimore Ravens Ltd. P’ship, 737 F.3d 932 (4th Cir. 2013), which involved the use of a proprietary logo during a documentary film, states “[f]air use…protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” [emphasis added].
Using option 3 will require some clear-eyed assessment by the project leaders and institutional decision-makers. Is the entire song truly necessary to preserve the integrity, spirit and tone of the original? Does the overall recording transform the song into something different than its original? Does the manner in which the recording is presented make is difficult for the new version to supplant the market for the original? If not, the library, museum, or archive might want to consider…
Option 4: Fair Use “Lite”
With the Fair Use “Lite” approach, the institution would redact all but the first and last moments of the copyright-protected song (leaving any parts the hosts/guest are talking over) claiming Fair Use for the remaining portions. This could be done by a fade-in, fade-out technique, or another aural cue that the recording is departing from the original.
If it doesn’t destroy the integrity of the project, “Fair Use Lite” is worth considering, because the smaller the portions of the songs, the stronger your Fair Use claim might be, since factor 3 will weigh more in your favor. If there is any original dialogue over the song, that, too, can be left, with a claim that the content is “transformative” (factor 1).
If the decision is made to keep the recordings intact, or to use at least part of them, it may be helpful to have the basis for the claim available to the public; something like:
These recordings capture an important moment in time. The songs played, content shared, and material included in these revealing broadcasts were all selected by the original broadcasters for a reason; these digital versions are valuable because they paint an accurate and complete picture of the sound and feel of the times.
To the extent any proprietary material is present, its inclusion in this larger work is a Fair Use, warranted by the importance of presenting the material as a whole. Critically, please note that this use is not-for-profit, for educational purposes, and no commercial use of this content is made, nor allowed. If any content or restriction in this archive concerns any person, please contact NAME, at EMAIL.
And finally: prior to posting any digital archive, if it is an option, an institution should consider registering the copyrights to the MP3 files. This will position the institution to enforce any restrictions it places on use of the sound recording (like disallowing commercial use)…even if the purpose of the digital archive is to promote access and dissemination of the material!
As more audio content is archived and stored for cultural, historic, and academic purposes, this issue will grow. I expect we may have some case law directly on point soon.
 When confronted with this issue, it is worthwhile to take a close look at the songs involved. Some pre-1972 sound recordings do not have copyright protection, an issue playing out in what is known as the “Flo & Eddie” line of cases (just look up Floe & Eddie, Inc. v. Sirius XM Radio, Inc., and you’ll see what I mean). Of course, the underlying musical composition might be protected, even when the recording is not…but the recording may be less protected than you think!
 Congress provides a list of four factors that guide the determination of whether a particular use is a fair use. Those factors are: (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. 17 U.S.C.S. § 107. These factors cannot be treated in isolation from one another, but instead must be weighed together, in light of the purposes of copyright. This balancing necessitates a case-by-case analysis in any fair use inquiry. The United States Court of Appeals for the Fourth Circuit's precedents have placed primary focus on the first factor. A finding of fair use is a complete defense to an infringement claim: the fair use of a copyrighted work is not an infringement of copyright. 17 U.S.C.S. § 107.
We have video recordings of campus speakers that we are interested in digitizing and publishing to an online platform. They are currently on VHS and/or DVD and available in the Library to be checked-out.
The speakers include writers and poets who recite their published, copyrighted works to the college audience. Is it possible for us to post the recordings of these readings (as well as question and answer sessions) online? Most likely there was no signed license agreement when filmed.
Part of the mission of higher education institutions is to bring important, provocative, and enlightening speakers to their communities. Over the years, this results in an impressive roster of authors, artists, professionals, politicians, comedians, dignitaries, and civic leaders, having spoken on campus. Sometimes, all or part of this roster was captured on film, video, or audio recording.
The rights to those recordings—and what can be done with them in the digital age—can present a complicated situation. Each individual recording comes with a suite of considerations that can make a digitization project difficult. But in a scenario like the one posed by the member, critical points of analysis can be assessed, so a way forward is found. Here are those critical points:
Assessment Point #1: Who owns the copyright (to the recording)?
First, it is useful to establish who owns the copyright to the actual recording. Since copyright to a recording vests in the person who created the recording, not the person being recorded (unless it was a selfie), this is sometimes easy to assess. As we say in the biz: “who pushed the ‘record’ button?”
If the recording was made by an employee of the institution, and there was no contractual agreement otherwise, then the copyright to the recording is owned by the institution. If it was recorded by a student who just happened to be there, or a third-party attendee, the school doesn’t own it (which becomes an issue in the subsequent steps). Awareness of this factor is a good starting point for what lies ahead.
If your institution owns the copyrights to the recording, you can skip points #2, #3 and #4, below.
Assessment Point #2: Is this recording part of the library’s collection?
Just because the educational institution owns the physical copy doesn’t mean it is part of the library’s collection. For purposes of numbers 3 and 4, below, if your institution doesn’t own the recording, in order to convert and/or conserve it under Copyright Act Section 108 (the section giving special rights to certain libraries), the original recording must be formally cataloged and included in the library’s collection.
Assessment Point #3: Is the library in a position to convert the copy to a digital medium?
If the copy is formally a part of the library’s collection, and it is on a format considered “obsolete” under section 108 of the Copyright code (so long as the devices are no longer manufactured, VHS is, for example, is considered “obsolete”), the library may convert it to a digital format, and loan it out as provided by the §108. NOTE: this does NOT mean you can include it in an online digital collection, for anyone to access any time, but it takes you one step closer to it!
Assessment Point #4: Does the library need to conserve the copy?
If the original copy is deteriorating, it may be duplicated as set forth in Section 108. NOTE: this also does NOT mean you can include it in an online digital collection, but it makes sure than once you can, your original copy is safe, and backed up for posterity.
Assessment Point #5: Did the institution have any right to record, and/or to use the image of the person who was recorded?
This requires scouring the contracts of the institution. Most speaker contracts these days include terms controlling the right (or not) to make a recording, but, as reflected in the scenario posed by the member, in the past this was not the case. This assessment is critical, especially since at academic institutions, other departments at the institution may want to use the content to promote and celebrate the institution…but in New York, the commercial use of a person’s image, without their written consent, can carry both civil and criminal penalties.
Assessment Point #6: Are there any concerns with trademark?
The risk posed in #5 is increased if the speakers’s name and image is currently being used for purposes of a trademark (like “Maya Angelou” which is protected under Federal Trademark 86978575), or if a trademark was on display during the presentation. This means any arguably commercial use (like selling copies, putting it on the school’s website or catalog, or selling a t-shirt promoting the collection) should only be done in consultation with an attorney.
Assessment Point #7: Are there other copyright concerns?
This is the meat in the sandwich of the member’s scenario. Going through the above steps, even if an institution:
1) owns the recording;
2) includes the recording in the library’s catalog;
3) meets the 108 criteria to convert it from an obsolete format;
4) meets the 108 criteria to make preservation copies;
5) has permission to use the name and likeness of the speaker in any and all formats, for whatever reason, forever;
6) verifies there are no trademarks involved…
…if the speaker read a copyrighted work during the recording, that “performance” of a copyrighted work MIGHT be subject to its own copyright, and thus, bring with it a host of new restrictions, cramping the bounds of your digital usage.
What a pain, right?
Fortunately, there is solution. For any library at an educational institution contemplating digitizing the institution’s recorded guest speakers, if the written record doesn’t reflect clear permission to record and use the content, writing to the original speaker, or the current copyright owners, to ask for permission, may be the best solution. A sample request, with the variables notes in CAPS, is right here1:
You may recall speaking at INSTITUTION on DATE. During that performance, you read [INSERT TITLE(S)] (hereinafter, the “Works”).
Our on-campus library seeks to include a copy of that performance, recorded on FORMAT, in an online, digital collection to be called TITLE (the “Collection”). We would like to include the recording in an online Collection, so it may be accessed by the public, for purposes of enjoyment and scholarship.
To that end, we ask the following:
1. Are you the sole copyright owner of the Works? Yes No
2. If you are not the owner, do you retain the right to give permission for their reproduction, distribution, performance, and display? Yes No
If you are not the copyright holder, or do not hold the rights, please let us know who does: _____________________________________________________________
If you are the copyright holder, please consider the below requests:
3. Copyright License
May [INSTITUTION] have a non-transferable, irrevocable license to reproduce, duplicate, display, perform, and, by virtue of the recording being part of the Collection, prepare a derivative work of, the Work(s), solely as performed by you and recorded by INSTITUTION on DATE? Yes No
We would like to use your name and picture to promote the Collection. May [INSTITUTION] use your name and likeness, including but not limited to photos or images of you, the recorded sound of your voice, for the purpose of promoting the Collection in hard copy, on the institution’s website, and via any other medium existing now, or later developed? Yes No
Thank you for considering this request. I included a self-addressed, stamped envelope, in the hope of a favorable reply.
Of course, the risk of asking is that they say “no”…and that they demand you stop using the recording of the derivative work! That is why in all of this, any contracts should be assessed by an attorney, so the rights of your institution are protected, and any requests for permissions should be carefully considered prior to submitting the request.
So, the answer is (and I appreciate it took a long time to get there!): unless the recording were news coverage—which is assessed under a different array of laws—permission (given either at the time of the arrangement, or many years later) for digital duplication and distribution is required, but can be arranged well after the event.
1 NOTE: This approach is for educational institutions that were also the original recorders of the work to be digitized, who are seeking a wide degree of latitude on their use. This approach is NOT suggested for digitization efforts involving content generated by third parties at non-educational institutions. It also does not cover recordings of musical works (that would be a whole other answer!).
We are shifting away from VHS here on this campus (along with everywhere else), and have a question from an instructor about transferring a VHS tape to DVD. She's not able to get the tape on DVD or streaming, but knows that it's under copyright. Are there any loopholes to allow for making a digital backup of a VHS tape because VHS is an obsolete medium? Does going through a good-faith effort to find a digital version give some protection or leniency? Should we encourage the instructor to contact PBS or the show's producers to obtain copyright clearance for making a digital copy?
We’ll start out with the best advice: unless you stand on the legal high ground of a disability accommodation or a crumbling single copy unavailable in the original medium, when it comes to creating a new format of a work, written permission from the copyright owner is always best. That is the gold standard. If you have permission, the blood, sweat, and tears (or stress, more likely) of a Fair Use analysis are not needed.
This scenario does not occupy any legal high ground. For a library in this position—dealing with the increasing rarity of VHS players—there is great guidance out there from the Association of Research Libraries’ “Code of Best Practices in Fair Use” (http://www.arl.org/storage/documents/publications/code-of-best-practices-fair-use.pdf): Here is what the code has to say on this issue…
Even when libraries retain the originals of preserved items, digital surrogates can spare the original items the wear and tear that access necessarily inflicts. Section 108 of the Copyright Act authorizes some preservation activities, but does not address some of today’s most pressing needs…[including] the transfer to new formats of materials whose original formats (such as VHS magnetic tape) are not yet obsolete (as the term is narrowly defined in section 108(c)) but have become increasingly difficult for contemporary users to consult.
Case law also acknowledges this VHS problem, but gives no relief: “Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.” (University Studios et al v. Corley, U.S. Court of Appeal 2nd Circuit, 2001). This case is 15 years old, which means a lot has happened in the world of technology, but is still good law.
So the answer is, for now, unless you are making a disability accommodation, or faced with a crumbling copy, there is no iron-clad loophole or clear precedent to allow the proposed conversion to be a “fair use.”
That said, if you have a deteriorating copy, a good-faith effort to re-purchase it in the original medium will certainly contribute to a fair use defense if you duplicate it to preserve this resource.
To help both you and your institution show that you have gone through this exercise, when you address such questions, I advise that you compose short emails to yourself, documenting the question, process, and conclusion. A simple:
“Instructor stopped by today and asked if we could convert VHS in the collection to DVD for ease of access. I let her know we’ll try to purchase a copy on DVD or seek permission of the copyright holder to make a copy on DVD.”
“Instructor stopped by today and asked if we could convert VHS to a format that would allow Deaf student to view closed-captioned version; we are arranging conversion solely to allow reasonable accommodation under the ADA.”
“Instructor pointed out that VHS tape in collection was not working right. [Co-worker] and I verified the condition. As best practices state it is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials, the library will create a back-up copy, UNLESS a fully equivalent digital copy is commercially available at a reasonable cost. We will of course not provide access to or circulate original and preservation copies simultaneously.”
This July, various news outlets reported that the world’s last manufacturer of VCR’s has cease production. Please check back on this issue; we’ll update this entry in the FAQ when we have better guidance, which should be coming soon. Congress is working on new guidelines, and was recently told by the Register of Copyrights, Susan Pallante: “In its current state, Section 108 is replete with references to analog works and fails to address the ways in which libraries really function in the digital era, including the copies they must make to properly preserve a work and the manner in which they share or seek to share works with other libraries.”
We would like to digitize newspapers that were published prior to 1923. Since the paper is still in business, does public domain apply in this case? They are very difficult to deal with. We do have a contact there. However, if there is nothing stopping us from digitizing the older issues, we prefer not to deal with them. Would this also apply to other newspapers who are still publishing today but whose content does exist prior to 1923.
You have confirmed that the “Buffalo Evening News” (and other iterations) content originates BEFORE the strategic “1923” date confirmed by the Copyright Office (Circular 15a) as in the public domain. This is true whether the original article or image was owned by the paper, or licensed by the paper and owned by another person or entity.
Once an item is in the public domain, there are numerous ways for either the original owner, or another, to create a copyright in a new medium re-presenting the content (this is a motivating factor in many “special editions”), but the original is no longer protected, and may be digitized as you describe, without concern about an successful infringement claim.
One caveat on the “Buffalo News” content: there could be a concern as you promote the newly created resource. “The Buffalo News” is a trademark owned by (interestingly) The Columbia Insurance Co. (registration # 75834888). So while you can list the resource, I advise against using the name “The Buffalo News” in any promotion of the collection. That is for optimal safety and so you don’t get a cease-and-desist.
The good news is that the “Buffalo Evening News” trademark is officially “dead” (see attached screenshot). This may be used to promote the service, should you wish to do so.
This analysis and a similar caveat would apply to any other newspaper.