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Next in an occasional series on copyright

October of every year is designated as Archives Month, and archives around the country try to do something special in recognition of Archives Month.

contractToday and tomorrow, for example, the National Archives is continuing its Virtual Genealogy Affair with talks by archivists and other experts on a wide variety of topics.

And yesterday the Pennsylvania State Archives hosted its annual Archives and Records Management in Harrisburg, with presentations ranging from cloud storage to data breaches to copyright issues.

It was that last topic that brought The Legal Genealogist to Harrisburg, and — as is often the case — one question that kept coming up time and again:

If a volunteer contributes articles or photographs to the newsletter or journal or website of a small archives — a genealogical society or an historical society, for example — who owns the copyright?

And the answer always seems to take the societies by surprise.

It’s the volunteer who owns the copyright.

First off, let’s call the volunteer the author. That’s the term the copyright law uses for the creator of any original work that is even eligible for copyright protection.1

And under the copyright law, unless the group putting out the newsletter or journal or website and the author agree otherwise, the author is also going to be the owner of the copyright. That protection comes into being automatically, the minute the work is created: “Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work.”2 It doesn’t have to be registered in the Copyright Office3 and it doesn’t have to have a copyright notice on it.4

Now in many cases, who owns the copyright doesn’t matter. The author gives the publisher permission to publish the item and that’s all the society needs. The society then has what’s called a compilation copyright on the entire publication, and that protects the society against having the whole newsletter or journal or website copied willy-nilly by someone else.5

But let’s say, just as one very common example, the volunteer author wrote an article and took a photograph 10 years ago, and gave the society permission to include them in the newsletter. Now the society wants to put its newsletter online. But that original permission to publish in one print item probably doesn’t cover republishing digitally or online.6

So how can a society make sure it can use what its volunteers contribute well into the future, no matter how the technology changes, without running into problems?

One of three ways:

• It can make sure that all volunteer authors sign a broad permission to publish that covers all future uses and re-uses of the material. Something along the lines of “I hereby give the society my irrevocable permission to publish and republish this item in any format, print or otherwise, that exists now or may be developed now or in the future” would pretty much take care of it.7

• It can ask the volunteer author to sign a written agreement giving the society the copyright. The law is clear that “Any or all of the copyright owner’s … rights may be transferred,” as long as it’s “in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”8

• If it asked the volunteer author to prepare the article or photo, it can ask the author to agree that the specific item is a work for hire. That covers things “specially ordered or commissioned for use” as a contribution to a collective work or as part of a compilation.9 But it’s only a work for hire “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”10 If both sides agree, then the society would own the copyright.11

By the way, the answer does not change if the authors are paid for their articles or photographs. The law still automatically gives the copyright to the author unless there is a written agreement to transfer the copyright to the publisher or that the work is intended to be a work for hire.


SOURCES

  1. See “Who is an author?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 28 Oct 2014).
  2. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 28 Oct 2014).
  3. Ibid., PDF at p. 3.
  4. Ibid., PDF at p. 4.
  5. See U.S. Copyright Office, Circular 14: Copyright in Derivative Works and Compilations, PDF version at p. 2 (http://www.copyright.gov : accessed 28 Oct 2014).
  6. See e.g. Jenn Webb, “The digital rights quagmire,” O’Reilly TOC, posted 4 Oct 2011 (http://toc.oreilly.com/ : accessed 28 Oct 2014).
  7. My usual “I do not give legal advice” caveat applies here. If you need guidance trying to write a contract, talk to a licensed attorney in your jurisdiction.
  8. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 6.
  9. 17 U.S.C. §101, “work made for hire.”
  10. Ibid.
  11. See U.S. Copyright Office, Circular 9: Works Made for Hire, PDF version (http://www.copyright.gov : accessed 28 Oct 2014).
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