Orphan Works in the Photo Archive

As we discussed in class, copyright law, like donor’s restrictions or mold, is one of those annoying yet omnipresent issues facing all archivists.  While copyright cannot restrict access to items, it can affect their use by patrons, their use by the archives for exhibition and self-promotion, and their digitization and online access.  It affects different formats in different ways and there are many factors that go into determining if an item is under copyright: when it was made, whether the creator was hired to do so and by whom, whether it has ever been published or exhibited, whether it is an original or a copy, etc.  Current copyright law states that things made after 1976 are automatically copyrighted and that copyright typically lasts until 70 years after the creator’s death.  Items enter the public domain if their copyright has expired, been forfeited, or was not applicable (government documentation, ideas, undocumented occurrences). Bitlaw.com has a good explanation of US copyright law and Cornell has an excellent chart for determining when/if items are in thepublic domain.

These issues are especially complex with photographs, where a photographer (or their employer) might not be known, nor whether the photograph is a copy.  Photographs also inhabit a liminal area as to whether they are works of art or documentation, which can also effect its status.  An image taken before 1976 might seem like it is good to go, but what if the photographer took it for a newspaper (work for hire) or for an art show? A picture which has been published might seem like it will have copyright hoops to jump through, but what if it was taken by for the government?

Kilauea lava Lake, 2014, US Geological Survey

                Some library and archival uses of copyrighted materials are covered by Section 108 of the Copyright Act, “Limitations on exclusive rights: Reproduction by libraries and archives.”, but this only covers research copies at public and academic libraries (Zimmerman 2007).  Most other potential uses fall under the exception of fair use.  There are several resources available to check if what one wants to do constitutes fair use, such as Columbia University’s Fair Use Checklist.  Because fair use, like most copyright law, is a very specific, complex, and often downright subjective legal issue, potential use of copyrighted items should be reviewed on a case by case basis.  Most of the time, it is the users who are going to be coming up against copyright restrictions more than the archives itself.  In these cases, it is not up to the archivist to determine whether the patron’s intended use falls under fair use, though it is easy to point them towards resources to help them make that determination (Maher 2012).  Copyright law does protect librarians and archivists to a certain degree, stating that in terms of penalties and damages, “if archivists and librarians have a reasonable basis for believing that a use they may make of a work (e.g. digitizing old photographs whose author or rights-holders cannot be located) comes under the heading of fair use, they may be exempt from the most severe of the legal penalties, such as statutory damages, making it much less likely they will actually be sued” (Maher 2012, p 23).  Still, in the case of a major use mass digitization or an institutional publication, it might be a good idea to consult a lawyer if resources allow.

From thesmARTteacher.com

Of course, many times, an item’s creator is unknown and cannot be found.  These are known as orphan works.  Several works of legislation have been proposed but ultimately rejected, including the Orphaned Works Act of 2008, which died in the House of Representatives.  This act stated that copyrighted works by unknown creators may be used as long as a “reasonable search” for the copyright holder had been conducted (Hall and Zibluk, 2010).  While this would be enormously freeing for libraries, museums and archives who can now use, digitize, and post images that they have no way of proving to be in the public domain, it is virulently opposed by many creative professionals who feel that the act would make it too easy to get around copyright restrictions and is “a threat to their ability to protect their intellectual property, and therefore a threat to their businesses and livelihoods” (Hall and Zibluk, 2010, p. 68). 

New forms of the Orphan Works Act are regularly proposed, though up to this point they have been unsuccessful.  There are many public discussions available here at the Copyright Office, where it is also possible to register one’s own comments (before May 21^st).  Suggested changes include the creation of an orphaned works registry, though this puts the burden on the copyright owner and goes against the Berne Convention on intellectual property use (Hall and Zibluk, 2010).  Any form of registry would also be enormously expensive to create and maintain.  Others suggest a clearer enumeration of a “reasonable” search to keep users from using the Act as a loophole and claiming works as orphaned which clearly are not.  Another complication to the issue of orphaned works, particularly photos, is the fact that technological platforms are always changing.  Every time the way we distribute images changes, a whole new set of issues come to bear on copyright.  Some suggest changing the way cameras and image hosting sites record metadata so that the initial creation and any subsequent changes and distributions are recorded in the digital structure of the image itself (Minelli, 2009), but this is only a way to affect future images and does not answer any of the questions about how to handle the millions of orphaned images already floating around the internet and sitting in repositories.

By joebeone, Flickr Creative Commons

                While some repositories, like the Library of Congress, Civil Rights Movement Veterans and the Prelinger Archive, have gone ahead and made digital copies of orphan images available online, many archives and libraries are afraid to digitize and distribute orphaned works and other works with unclear copyright status because the laws regarding orphan works and fair use can be so vague and the penalties for copyright violation can be so expensive (Urban, 2012).  The resources required to conduct “reasonable” searches and consult lawyers are often seen to outweigh the benefit of distributing the work.  The two major cases involving mass digitization and orphan works both involve the Authors’ Guild suing Google over book digitization.  In Authors’ Guild v Google in 2005, the Authors’ Guild sued Google for copyright violation over the digitization of books for what was then known as Google Print.  It was decided that Google’s digitization project was considered fair use because of the “significant public benefits” from its providing access to scholars, researchers and the print disabled (Electronic Frontier Foundation, n.d.).  In 2011, the Authors’ Guild sued HathiTrust Digital Library (HDL), an offshoot of the Google Books Search Project.  HDL allows libraries to store and search digital versions of their collections using the Google Books platform.  Again, digitization efforts were found to be fair use because of their overwhelming benefit to researchers and increased access to creative works (Electronic Frontier Foundation, n.d.).

                Arguably, an Orphan Works Act is not necessary for the digitization of archival materials and online archival access.  Jennifer Urban of the UC Berkeley School of Law argues that Fair Use is enough to cover the digital collections hosted by libraries and archives, especially when coupled with limitations on use to educational or non-commercial purposes and demonstrations of good faith like taking down or licensing a work if an owner is found, though she does admit limitation in that that fair us, as we discuss it, is “a nearly unique feature of U.S. copyright law and does not apply in other countries” (Urban, 2012, p. 1429).  There is a movement in the European museums and archives towards large online collaborations and consortiums between institutions in different countries, which could bring up a whole new set of issues with copyright if such a thing starts to catch on with U.S. institutions.

                Distribution is not the only reason an archive might need to copy or digitize an image.  Megan Bibb, former executive editor of the Vanderbilt Journal of Entertainment and Technology Law advocates a solution for digitizing libraries and archives based in property law—the copying and digitization of physical images for preservation and to reveal items which would otherwise never reach an audience (because they are hazardous, fragile, etc.) can fall under the auspices of adverse possession, where certain rights over a piece of property revert to the person who has been caring for it for a significant time (Bibb, 2009).  For example, acetate film, if improperly stored, has an exponentially shorter lifespan than film stored in controlled conditions—that film’s present existence and condition is then a direct result of the actions of the archive (p. 170).  She argues that adverse possession exists to encourage use, originally to keep land from languishing under a “sleeping owner”, and could be applied to orphan works despite the many fundamental legal differences between physical and intellectual property (p. 164), though there is not a current precedent for this.

From web.law.duke.edu Public Domain Day

The issue of copyright in archives has two components, use by the archive (distribution online and in publications) and use by patrons.  Archives are cautious with their own use of copyrighted or potentially copyrighted materials, but are their users?  A study conducted in 2012 on historian and genealogist users of archival resources shows that many users not only do not fully understand or pay attention to copyright and access restrictions, they take pride in getting around them, making and distributing unauthorized copies and removing watermarks (Dryden 2012).  Many users believe that as long as they cite their sources, they are completely in the clear.  What, if anything, do archives need to do about this?  There is nothing an archive can do about users’ willingness to follow the law, nor should they, but it is crucial to make sure they cannot be held responsible for misuse of copyrighted materials.  This is especially important in the world of photography, where multiple copies of an image can easily exist unknown to repositories or scholars. 

As long as an archive clearly states any known copyright information and has made any restrictions on use very clear to the user, they cannot not be held responsible for any misuse by patrons—even if they provide no information, they are not legally liable.  Copyright compliance is all on the person directly using the work in question.  It is still in an archive’s best interest to clearly state any known copyright information and to provide patrons with basic knowledge about fair use and copyright compliance.  There is a responsibility among archivists to encourage compliance with the law and to facilitate responsible dissemination of information.  It is also important to avoid the bad publicity and ill-will from donors that could result from having the archive connected with a copyright suit, even if the archive is only the middle man and bears no legal responsibility.

                The already complex question of copyright restrictions on archival material becomes even more complex for photographic images.  It is often hard to tell who created that picture and what its original purpose was—was it taken by a family member or a professional?  Was it a work for hire that belongs to a company, organization of the government?  Was it exhibited? Published?  Altered? Copied?  The use of photographic images by both archives and their users is also fraught with questions—what to do if the copyright holder cannot be identified?  Is my use fair use?  Is research into copyright restrictions worth the use of that particular image?  What legal problems could arise from the digitization of this collection?  It is easy for archivists to overreact to copyright restrictions and become too risk averse to make full use of their collections, but it is important to have a working knowledge of the law as it pertains to your materials and your users and to carefully consider how you use your images.

References

Bibb, M. L. (2009). Applying Old Theories to New Problems: How Adverse Possession Can Help Solve the Orphan Works Crisis. Vanderbilt Journal of Entertainment & Technology Law, 12(1), 149-181.

Dryden, J. (2012). Cavalier or Careful? How Users Approach the Rights Management Practices of Archival Repositories. Journal of Archival Organization, 10(3/4), 191-206.

Electronic Frontier Foundation. (n.d.). Authors Guild v. HathiTrust. Retrieved from https://www.eff.org/cases/authors-guild-v-hathitrust

Electronic Frontier Foundation. (n.d.). Authors Guild v. Google, Part II: Fair Use Proceedings. Retrieved from https://www.eff.org/cases/authors-guild-v-google-part-ii-fair-use-proceedings

Hall, H., & Zibluk, J. (2010). The Orphan Copyright Act: Open Door or a Deluge?. Visual Communication Quarterly, 17(2), 68-76.

Maher, W. (2012). Copyright issues for US archivists. Art Libraries Journal, 37(2), 20-24.

Minelli, S. (2009). Creation, Circulation and Use of Photographic Images: The Issues Surrounding Orphan Works and their Educational Implications. Photographies, 2(2), 215-236.

Muller, F. (2006). Owners and Users Unite!: Orphan Works in the Copyright Modernization Act of 2006. DePaul-LCA Journal of Art and Entertainment Law, 17, 79-128.

Urban, J. M. (2012). How Fair Use Can Help Solve the Orphan Works Problem. Berkeley Technology Law Journal, 27(3), 1379-1429.

Zimmerman, D. L. (2007). Can Our Culture be Saved? The Future of Digital Archiving. Minnesota Law Review Foundation, 91, 989-1046.