The library is sponsoring a book talk by a famous author. May it post a photograph of the author and a photocopy of his work on the library's website? What about the book jacket from his latest book?

Only with permission are such reproductions and displays allowed. The library should contact the author or the author's agent about the photograph. Sometimes the agent will even supply the latest photograph, in digital format, and there is seldom a charge for use of the publicity photo. The publisher should be contacted about photocopying the work and about scanning the book jacket. The publisher can answer directly about the photocopy of the work but may not actually own the art work on the jacket. Often publishers contract with an artist to use his or her work on the jacket but the copyright remains with the artist. The publisher will know this, however, and can either further license the library (depending on its license from the artist) or put the library in contact with the artist.

An academic author wants to use a digital image of a painting owned by a museum. The painting appears to be in the public domain since the painter died in the sixteenth century. Is the author required to get permission from the museum to use the image on the dust jacket for his book?

For many years, museums claimed copyright in the photographs of public domain works of art since photographs are protected by copyright. After Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), this matter was clarified. The court held that although some photographs are copyrightable, exact photographic reproductions of public domain paintings lack originality and therefore do not quality for copyright. A photograph of a three-dimensional sculpture may have sufficient originality to qualify for copyright, however. So, the author should be able to reproduce the public domain image on his book jacket. However, attribution is a benefit to readers to identify the painting and the artist, and to specify where the original is housed; it also acknowledges the museum as the owner of the painting.

What is permitted in reproducing images of works of art, not only for library slide collections, but also on the web. Clearly there are many works of art, such as the Mona Lisa, Sistine Chapel, Van Gogh's Self Portrait, and Toulouse-Lautrec's At the Moulin Rouge that are in the public domain. Photographs of three-dimensional works may be the "creative" work of the photographer and therefore copyrightable by the photographer. What about photographs or two-dimensional images of works of art? May they be reproduced at will in slide form for the library or by faculty on their web pages? What about copying images from more recently published books and periodicals, or does the publisher or photographer now own the copyright?

Photographs generally are protected by copyright. In fact, for years it was assumed that photographs of two-dimensional works of art were protected by copyright. The Bridgeman Art Library case (cited in Q202) changed this when the underlying work is in the public domain and the photo is an exact duplication of the painting. The reason for this change was the court's recognition that photographs of two-dimensional works of art that are in the public domain lack sufficient originality to qualify for copyright protection. The same is not true of photographs of three-dimensional works, which do contain enough originality with lighting, angle, and so forth, to attain copyright protection. Therefore, photographs of two-dimensional public domain works of art may be posted on the Internet.

Who owns the copyright in photographs published in books and journals depends on the agreement between the photographer and the author of the book. The photographer initially owned the copyright but may have transferred it to the book author or publisher. Most likely, however, the photographer simply licensed the use of the photo in that publication.

A public library has created a digital archive of local photographs that were donated to the library over the years and has posted them on the web. The librarian has been contacted by a member of the community asking for a photograph to be removed from the online display because he is the photographer and owns the copyright. What should the library do?

A purely legalistic answer would focus solely on whether the individual actually owns the copyright, the date of the photo, whether it had been published, registered for copyright, and so forth. The library certainly could take such a stand, research the ownership issue, and work with the city or county attorney for a legal solution to the problem.

There are other serious concerns in addition to copyright ownership, however. For example, how important is that particular work to the overall collection of photographs? Is it worth causing hard feelings with a member of the community? Is it possible to work with the individual to ensure that he receives credit as the photographer but get him to grant permission for the photograph to remain online? The library also may want to make sure that its website asks for copyright holders to come forward so that they may be credited, and the website should contain a statement that the library will remove any copyrighted photograph from the posted digital archive should the owner object to its inclusion.

A librarian has been hired to create a web page for a business that provides costumes, and she is interested in using images from 1930s through 1950s Montgomery Ward catalogs on the web page. May these images be used on the Internet, or are they protected by copyright law? The complicating factor is that Montgomery Ward is no longer in business.

The photographs may or may not still be protected by copyright. They were published and likely were registered for copyright as a part of the catalog. Assume that they originally were protected. Now, the question is whether the copyright was renewed. Consult my chart, "When U.S. Works Pass into the Public Domain" (see Appendix; also available at unc.edu/~unclng/public-d.htm) to determine when works enter the public domain.

If the photographs were registered and the copyright was renewed at the end of the first 28-year period, the photographs may still be under copyright. When Montgomery Ward went out of business, it would have transferred assets to another company, and copyrights are considered assets. A search of the U.S. Copyright Office registration records will help to determine if the copyright was renewed and/ or transferred. The records are online only since 1978, however, and not all transfers are recorded. For these earlier works, one would either have to hire the Copyright Office itself to do the search or engage a private search firm.

Another possibility is simply to assume the risk of going ahead and using the photographs. The risk is probably slight that anyone would complain because: (1) the photos are old, (2) they were used in widely distributed sales catalogs, (3) it is unlikely that the copyright was renewed after the first 28 years, and (4) the company is no longer in business. This does not mean that using the photos is risk free, but just low risk. One can always remove the images if the copyright owner complains. A complicating factor, however, is the fact the photographs will be put to commercial use rather than nonprofit use, which reduces the potential that the use would be found to be a fair use.

A faculty author wants to use some wedding photos from the 1940s and 1950s that he found in the state archives. They seem to have been originally published in the local newspaper's society section, and later they were given to the archives. It would be very difficult to trace these people 40 or 50 years later, but the author wants to use the photos in a book. Is this a problem?

This is a fairly complicated issue that may just boil down to whether the faculty author is willing to assume the risk. Interestingly, in U.S. copyright law it is not the subject of the photos who owns the copyright but rather it is the photographer. Since these were published in the newspaper, the first step would be to determine whether the photos were taken by a newspaper staff photographer, in which case the newspaper would own the copyright, or by regular photography studios. If the latter, then the photographer owns the copyright.

The copyright would have expired 28 years after publication unless the copyright holder renewed the copyright for an additional 28 years (this has now been expanded to 67 years). To trace this by date, consult my chart, "When U.S. Works Pass into the Public Domain" (see Appendix; also available at unc.edu/~unclng/ public-d.htm).

After all of this, however, it is highly unlikely that any photographer from that long ago, or his or her heirs, would be around to complain. So, the faculty member may well decide to assume the risk.

If a patron asks to scan an entire collection of postcards or photographs for personal use, should the library permit her to do so?

What a user can do for herself is very different from what a library can do for the user. It may well be fair use for the patron to make personal copies of the works, even in digital format. The library may want to alert the patron to the fact that there could be copyright problems should she put the works on a website or use them in a publication, but the library is not required to do so. If the patron is using a library scanner rather than her own, that equipment must contain the same notice required by section 108(f)(1) of the Copyright Act for photocopiers and reproduction equipment.

 
< Prev   CONTENTS   Next >