January 25

APPEALING SUBJECTS
BY CRAIG MANSON
A Monthly - Weekend With Shades - Column

By now, everybody is just about adjusted to writing "2009" on their checks and other documents, I hope. I know that you have been waiting with excited anticipation for the big anniversary this year--yes, of course, I'm talking about the 100th anniversary of the Copyright Act of 1909! That law is no longer in effect, but its arm still reaches from the legislative graveyard to affect issues yet today. So I thought the first "Appealing Subjects" of 2009 should deal with copyright issues (and I've found a few old photographs of the United States Patent Office just for fun).

Let's start with one of my favorite subjects: orphans!

The Orphan Works Problem is Elusive to Quantify and Describe Comprehensively.
--U.S. Copyright Office Report on Orphan Works, January 2006, p. 92

Orphan works are those whose creative "parentage" is unknown or unclear. The problem for a potential user is that if the owner is not found, the user faces uncertainty about whether or under what conditions the owner would permit use. Where the proposed use goes beyond an exemption or limitation to copyright, the user cannot reduce the risk of copyright liability for such use, because there is always a possibility, however remote, that a copyright owner could bring an infringement action after that use has begun. The U.S. Copyright Office reported to Congress in 2006 that:

Many users of copyrighted works have indicated that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work. Such an outcome is not in the public interest, particularly where the copyright owner is not locatable because he no longer exists or otherwise does not care to restrain the use of his work.

Photographs are particularly susceptible to being "orphaned" because they are so easily reproduced and frequently contain little or no information about the copyright holder.

To understand the practical implications here, let's take this example:

Last month here at Shades' Appealing Subjects, I used a number of old photographs of famous American trials. One of them was this one below:


I found it at http://en.wikipedia.org/wiki/File:Scopes_trial.jpg. The Wikipedia author may have found it at Brown Brothers, a stock photography dealer in Sterling, Pennsylvania. It is unlikely that Brown Brothers owns the copyright. We do not know who took the photo.

Under the Copyright Act of 1909, which was in effect in 1925 when this famous photograph was taken, the copyright would have been effective for a term of twenty-eight years from first publication. If the formalities of the 1909 Act had been complied with, the copyright could be extended for another 28 years. Presuming first publication in 1925, this photograph could be protected until 1981 under the 1909 Act. Then, under the 1976 Act, the copyright could have been extended to the year 2000. Finally, under the Sonny Bono Copyright Term Extension Act of 1998, the term of protection could last until the year 2020.

The problem is, however, that determining the status of the photograph must rely on facts unknown to us now. Our inability to discover the facts with certainty makes it an "orphan."

Wikipedia had this to say about the photograph:

Copyright on this photograph may have expired by now, but if not it is believed that use of this historic photograph is fair under US law to illustrate the article discussing this event. . . .This image is a faithful digitalization of a unique historic image, and the copyright for it is most likely held by the person who created the image or the agency employing the person. It is believed that the use of this image may qualify as fair use under United States copyright law. Other use of this image, on Wikipedia or elsewhere, may be copyright infringement. See Wikipedia:Fair use for more information.

So under those circumstances, many collectors and creative users would be reluctant to use this historic image of Clarence Darrow and William Jennings Bryan. As the Copyright Office says, that would not be in the public interest.

There is pending in Congress legislation which might "emancipate" the orphans. The Senate in October passed and sent to the House of Representatives the "Orphan Works Act of 2008." The act would limit the liability of users of allegedly copyrighted material if, among other things, the user (1) performed and documented a search, in good faith, to locate and identify the owner of the infringed copyright; and (2) was unable to locate and identify an owner of the infringed copyright.

Above: Piles of copyright deposit materials arrive at the Thomas Jefferson Building in Washington, circa 1898

The act would also require the Register of Copyrights to create and maintain a database of "pictorial, graphic, and sculptural works" to facilitate a user's search for material subject to copyright.

As noted above, the Senate passed the legislation in October 2008 and there was hope that the House would concur before adjourning for the year. [As of the deadline for Appealing Subjects, the House was set to meet just one more day before the 110th Congress adjourned and it was highly unlikely that the Orphan Works Act would be taken up that day. The legislation will probably be re-introduced in the 111th Congress which commenced on January 6, 2009.]

The orphan works act is highly controversial in the creative community.

In the absence of legislation, however, what should a collector or potential user do? Here are some suggestions:

Request a copyright search, even if you have little information to go on. The paperwork from the Copyright Office could show your good faith effort to establish the rights status of the image.
Record the type of searching you have done and what you did or didn’t find, so you can demonstrate you used due diligence in searching for the rights holder. If no satisfactory answers appear, you may want to consider that, even as to orphans, the doctrine of "fair use" applies.

Right: Copyright Office employees at work, c. 1920

It was the doctrine of fair use that made me comfortable in using the photograph of Bryan and Darrow last month. It was a non-commercial, educational commentary on the work itself that did not appreciably diminish or impair the potential market for, or value of, the original work. Consider that this is an iconic work, depictions of which have been published many, many times and places since 1925.

CAVEAT: "Fair use" of orphan works is not for sissies! Do not try this at home unless you are very comfortable with ambiguity and risk. The safest course is to use only work for which you have the owner's permission.

Additionally, there are provisions in existing law that may offer some protection in some circumstances for libraries, archives and nonprofit educational institutions.

Freedom & Royalty

There are a number of places on the Internet that advertise "free" images for use. You should understand what is meant by "free" before using one of these sites. For example, there is a difference between images that may be used for no cost whatsoever and images which are merely "royalty-free." "Royalty-free" images still may be copyright protected, but the copyright owner has offered a license for a particular one-time use. This license may or may not cost money. Some such licenses can be extremely complex instruments. Some licenses allow the user to modify the image; some do not allow modification of the image. Read carefully! For an example, see the content agreement at istockphoto.com.

Many "royalty-free" sites have content supplied by photographers who are paid a one-time fee for their work which thereafter is by contract available "royalty-free" to subscribers.

Some sites feature a combination of "royalty-free" and "public domain" photographs. Other sites are indiscriminate about the use of the terms "royalty-free" and "public domain." If you use such a site, be sure you know which type of photograph you want to use. "Free" or ("royalty-free") does not mean "free from copyright protection." Only "public domain" means "free from copyright protection."

On the other hand, there are some truly "free" collections of old photographs available. These mostly are images that are in the public domain. An image is in the public domain if its copyright has expired, or the author gives up all rights in the work to the public domain, or if it is a work of the United States Government.

Though there are many nongovernmental "public domain" old photograph websites, by far the largest collection of public domain images is that of the United States Government. Some it is housed in archives such as the Library of Congress' American Memory collection; the rest in the archives and on the websites of government agencies. Works by government employees in the scope of their official duties are public domain works.

Here are three caveats about "public domain" works: First, nothing prevents a person from selling, for profit, compilations of "public domain" works. Second, just because it's on a Government website or in a governmental archive, does not make it public domain. Third, state governments may claim copyright in their works.

A Curious Defense of Property Rights

On a different but somewhat related copyright issue, all should know by now that Google and Time-Warner, Inc., have teamed to make available through Google Image Search the photo archives of LIFE magazine. The official announcement said that copyright of the materials would remain with Time-Warner. But the online edition of Photo District News reported:

While Time Inc. retains the copyright to the images, it is taking a relaxed attitude toward photo sharing. The LIFE site on Google displays no statement about how the images can or cannot be used, and informally, the company says it will turn a blind eye to non-commercial uses.

LIFE president Andrew Blau says the company is providing the images free of charge for viewing and “personal use,” such as term papers. The archive will no doubt be a rich resource for teachers and students.

“Bloggers pasting photos into blogs are our lowest priority,” Blau said in an interview with PDN. LIFE’s first priority will be to pursue “blatant misuse,” such as unauthorized use of the images on commercial products, Blau says.

Now what do you suppose the Time-Warner lawyers said about that? (Keep in mind, of course, that the business people, and not the lawyers, have the final say!).

Quiz

Now here's a real orphan on which to exercise your old photo research skills:


This is a portrait (obviously not contemporary) of the Louisiana Supreme Court (the man in the middle is not one of the justices; he is Governor Luther E. Hall. I don't know when it was taken or by whom or for what purpose. I don't even know where I first saw it! It could be a true orphan. But is it really? Let's see if we can find out if this photograph is still subject to copyright protection or not. Also, try to put together a scenario under which it might still be subject to copyright. Meet me here on February 22 with your answers!


This column is intended for general educational purposes only. Nothing herein is intended as, or should be construed as, a substitute for legal advice or a solicitation for clients. Craig Manson is an active member of the California Bar and is admitted to practice before all California state courts, the United States Supreme Court, and various other federal courts. If you have an actual legal problem, consult a licensed attorney in your jurisdiction.