(Question has been slightly modified to maintain anonymity)
We have been digitizing restaurant, hotel and other menus from our historical menu collection and have been following standard copyright protocols – but also making many case-by-case decisions based on things like whether of the establishment still exists, etc. (With only a couple exceptions I made for a faculty member who had permission of the restaurant owners, I haven’t scanned any menus from after 2000.) Our public collection site is used by students and researchers around the world.
My question is: can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes? If we do scan them, would we need permissions from every single chef/owner? The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.
Menus can be works of art.
"Art" of course, is a subjective term, and has no precise, stand-along definition in copyright law. So more importantly for this discussion, a "menu" can be a composition of such originality and substance, that it is protected by copyright law.
This protection can be for the work as a whole (the entire menu), and/or it can be for individual elements in the work. It can cover stand-alone elements (such as a cover photo image or flavor text used to describe a signature dish), and, in these days of Slice and Grubhub and Yelp, it can be for the menu as a physical object, or a version published only online. It can cover the original art in a trademarked logo, whether that art was generated by an independent contractor or employee.
Recent case law illustrates how these protections can be sliced-and-diced, and also shows just how nasty litigation over restaurant copyrights and trademarks can be. Menus and the logos and information they carry can be the apex of a restaurant's brand, reputation, and intellectual property. So the member is right to take this concern seriously.
With care, however, the act of creating an online archive of carefully curated restaurant menus, for well-articulated academic purposes, should be able to find protection in the line of "fair use" case law building on the 2nd Circuit's 2015 decision in Authors Guild v. Google, which relates to the creation of online repositories.
As the Court found in that case: The purpose of the copying [to create the online resource] is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.
The key to scanning and incorporating menus still under copyright protection into an archival database of menus at a library or educational institution, while taking advantage of the fair use defense set forth in Authors Guild, is to do so in a manner that:
There are numerous techniques to achieve this.
First and foremost, the purpose of the archive should be developed and set forth on the archive in clear, well-developed terms. The database should not look like a group of menus simply gathered together by a person who happens to have made a collection of his favorite restaurants. The cultural value and purpose of the collection should be stated in very certain terms, and consistently repeated throughout the archive's pages, cataloging text, and metadata.
Second, the function of the archive should be such that users can demonstrably benefit from the aggregated content and information. For instance, menus should be searchable by geographic region, type of food, notable characteristics, and other relevant factors...giving the aggregated content value beyond what is created by each individual entry.
Third, the archive should adopt a standard approach to assessing and depicting the authorship, ownership, and copyright status of archived works.
Fourth, the images themselves should be created so that a third party using the image cannot create a credible replica of the menu or the original originating restaurant's logo or copyright-protected content. A picture taken with a border, or the use of a watermark indicating that the image is part of the archive are some common ways to do this; technology creates many other and evolving options.
Fifth, since it will help mitigate damage in the event a copyright owner simply refuses to believe an archive has made a "fair use" of their content, the overall approach of the collection should be assessed using your institution's fair use assessment form, and that record should be kept. Why is that? Being able to demonstrate a good-faith effort to establish that the use is fair can help mitigate damages, and can be a deterrent to a plaintiff pursuing a lawsuit all the way to a verdict.
Sixth, the "Terms and Conditions" of your online archive should feature a process for owners to report good-faith suspicion of copyright infringement, and your institution should have a registered agent as provided by the DMCA. An example of this type of statement can be found in the DPLA's Terms and Conditions as of April 15, 2021: https://dp.la/about/terms-conditions. 
Seventh, if you haven't, consider the benefits of registering an agent under the DMCA, and if it's a good move for your institution, register (you can look up and see if your institution already has an agent here: https://www.copyright.gov/dmca-directory/).
And finally, to the extent possible, for steps five, six, and seven, work with your institution's attorney, who can connect all these steps and the academic activity they support with your institution's insurance and risk tolerance.
So, with all that as background, here are my answers to the questions:
Can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes?
Answer: Yes, copyright-protected materials can be duplicated if the use is fair; by following the cautions above, an institution can set itself up to both create a highly useful and important archive, to claim fair use, and to mitigate damages in the event of a worst-case scenario.
If we do scan them, would we need permissions from every single chef/owner?
Answer: if the use is fair, there is no need for permission...and in fact, asking for it could be introduced by a plaintiff as an admission that you concluded you needed permission.
Now, a word of caution on this: if your archive is part of a larger institution, the other departments of that larger institution need to be alerted that just because an image is on your archive, that doesn't mean they can use it for a catalog cover, a web site image, or a poster advertising your institution. After all, a use that is "fair" for an academic archive might not be so "fair" if it is on a brochure for a program or event (even if the program or event is not subject to a charge). This is especially true since menus will often feature not only copyright-protected material, but trademarks (which, unlike copyrights, do not expire if they are in continuous use).
The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.
Because the menus themselves can be protected by copyright--as well as the individual elements in the menus--that "murkiness" is here to stay. Unless a menu is clearly in the public domain, it is best to assume that it--or some part of it--is subject to copyright, and remember that a restaurant's name and logo are its intellectual property, too. The reason an archival initiative can make this assumption, and still hope to achieve its objective, is because by carefully and deliberately assembling those individually protected elements, they are creating a broader work with value beyond each individual element.
The value of a collection of menus is likely obvious to librarians, academics, and information managers. But just as an example of how valuable such a resource can be, even outside the field of scholarship, I'll share a personal anecdote: while working on a case for a neighborhood fighting a fast food drive-thru in their dense, urban neighborhood, I used the New York Public Library's digital collection to find a menu for the "Little Harlem Hotel" in Buffalo NY. The menu was part of the research we used to make the case that the neighborhood has a history worth fighting for.
We lost the case, but that menu helped create a vivid argument about the history of the neighborhood and its vibrant legacy, and that argument was energized by the archive. An online archive of menus can be important in countless ways; finding the right legal recipe to make it happen is worth it.
Thank you for a great question.
 "Visual art" does, and of course "art" as a general term is used regularly in copyright jurisprudence. But "art" remains a subjective term.
 Yep, that's a "flavor text" pun. Yum.
 The 2019 case Khan v Addy's BBQ LLC, (419 F Supp 3d 538), involving former business partners operating BBQ joints in Tea Neck, NJ, and Elmont, NY, shows just how convoluted these things can get. Another case from 2018, 784 8th St. Corp. v Ruggiero, 2018 US Dist LEXIS 5405 shows how copyright ownership to logos and menus can change based on who did the work; also, it shows that if you are in business with family, it is important to have a good lawyer!
 Authors Guild v Google, Inc., 804 F3d 202. The Supreme Court denied a chance to review this case, leaving the 2nd Circuit's decision intact.
 The database created by Google in the Authors Guild case was not a straightforward online archive like the one described by the member here. However, the case is still applicable in several important ways.
 I know a professional archivist would not do this, but this is a very important distinction.
 Other "relevant factors" of which I, a food philistine living in the city that invented Buffalo Wings, and originally from the city that invented Chicken Riggies and Half-Moon cookies, am shamefully unaware.
 The approach of the Digital Public Library of America ("DPLA") happens to be my favorite, seen here in this document about the Erie Canal, but is not the only standard out there. What's important is that the institution identified a system that works for it--and then consistently uses that system.
 It would be deeply ironic if the DPLA sent me a "cease and desist" for linking to their excellent resources.
 Since every archive or library has a different structure and different approach, while inspiration can be drawn from fellow institutions, the final approach and policies should be reviewed by a lawyer for your institution whenever possible. As just a threshold issue, state-affiliated institutions have different risk considerations than independent not-for-profits.
 It hurt to lose, but the damage to the neighborhood hurt more.
My institution has a small number of documents in our archives related to previous graduate students. Some are definitely educational records (transcripts, field placement evaluations). Then there are a) letters of recommendation received by the school or written by school faculty/administrators and sent to other schools, b) some correspondence between a student and the school/administration, and other items like c) copies of images or articles from student publications.
The documents span decades. Most --- but not all--- of these former students are confirmed deceased. Most items in this small group of documents relate to alumni who were/are notable, but in widely varying degrees.
A few of these documents concern a famous alum, who passed away. An outside researcher is asking about the documents related to that alum, and unfortunately, there are no surviving institutional access policies related to student records or unpublished correspondence in our archives. We want to respect copyright, FERPA, and the alum's estate.
For the educational records, I can't find clear guidance on how long FERPA access restrictions last, but other academic collections seem to allow access 50-75 years after the former student's death.
So, a few questions:
1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?
I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time. For instance:
And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors.
An educational institution considering levels of access and use of student-related documents has to consider not only these legal factors, but their unique policies. Factor in fame, and the stakes get even higher.
Because of that complexity, I could muse/write/talk on this topic for hours. But let's focus on the member’s specific questions:
1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?
If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.
If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.
But as the member points out, there are other considerations.
2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,” then they are by definition "education records" under FERPA. That is because the FERPA is intentionally expansive. So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.
BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records. Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).
So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.
Which brings us to:
3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?
Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts), but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.
For some, this may be a complex and far-reaching catalog of institutional history. For others, it may be simply hanging onto every program for every graduation ceremony. And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.
Whether formal and well-funded, or informal and not funded, every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. 
If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy. In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).
All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks, how does an institution create an archive that suits its stated purpose and conforms to institutional ethics? Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution.
I would like to thank the member for this question, it is a good one. And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!
Thanks. I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.
 See letter of LeRoy Rooker, Director, Family Policy Compliance Office, U.S. Department of Education letter of Date, found at https://studentprivacy.ed.gov/sites/default/files/resource_document/file/LettertoConnecticutStateArchivistRegardingEducationRecordsMay2008.pdf as of February 10, 2021, re-affirming "that the FERPA rights of “eligible students” lapse or expire upon the death of the student based on common law of privacy rights."
 Text for this law can be found at: https://www.nysenate.gov/legislation/bills/2019/s5575.
 I am writing this on February 10, 2021.
 This "Ask the Lawyer" answer does not address the issue of yearbook photos and student-generated art or academic work. For that, see https://www.wnylrc.org/ask-the-lawyer/raqs/108 and https://www.wnylrc.org/ask-the-lawyer/raqs/91.
 What is "fame?" It's a notion that is taking odd journeys these days. As I said in footnote #3, I am writing this on February 10, 2021. Jockeying with the impeachment proceedings for "fame" on the cover of today's digital New York Times: an article about a lawyer who appeared in virtual court as a cat. I bet he can't wait for his 15 minutes to be over.
 "Directory information" includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.
 Here is the actual definition: "...those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution."
 There are exceptions to this, of course...one big one being the records of campus police.
 I value this archive because it has letters between W.E.B. DuBois and Mary Talbert, a Buffalo resident who was a stalwart organizer for civil rights and, on the side, historic preservation (she led the effort to save the house of Frederick Douglass). I read her letters when I need a shot of pragmatic inspiration.
 Some "archives" exist because some wonderful employee couldn't bear to see institutional history thrown out, and they got permission to buy some boxes and put the "archives" in the storage closet.
 For this question, "risk" is not just legal risk, but relational and reputational risk, too. After all, it might be legal to share a harsh evaluation from a thesis committee related to the work of a long-dead student...but is there value in doing it? (Of course, there might be). Knowing why something is in the archive, and having full confidence in that reason, is just as important as preserving the record in the first place.
I received a request from a former student of [a local high school] in which her name appears on a yearbook page citing student activities. As the page is part of a whole PDF of the entire yearbook, "removing her name" would require taking down the entire yearbook.
If the library that scanned and uploaded the yearbook to the internet received permission from the high school to do so (the yearbook is tagged as In Copyright) does the student have a reasonable request?
At "Ask the Lawyer," we have tackled "yearbook questions" before: in 2018 we addressed patron requests to copy physical yearbooks in a library's collection, and in January of 2020 we addressed using scanned yearbook images to illustrate a commemorative calendar. 
But I have been waiting for this question for quite some time, and I am sure this scenario has a familiar sound to many readers.
"Yearbook scanning"—the creation of digital versions of yearbooks previously available only in hard copy—has been happening for quite a while now. However formal or informal such efforts might be, the end result (if made accessible) is a searchable, highly accessible collection of images of people in their formative years, who for whatever reason, might see the increased access to their former images as problematic.
Although we don't know the motivation of the person asking the member to remove their name from a digitized yearbook, this scenario shows the apex of this concern: a request to be removed.
At this "apex," a person can make a simple, single request to be removed. Or, they can be persistent about it--making multiple requests, calls, letters, etc. Or, if they are available, they can make legal arguments.
I can think of several "legal" arguments a person could bring forward to remove their name from a yearbook in the manner described by the member:
Of course, asking for the "legal reason" a person is requesting removal from a digital, online yearbook puts the library in the uncomfortable position of having to evaluate the validity of the answer. Let' not go there just yet; instead, let's take a closer look at the member's question:
If the library that scanned and uploaded the yearbook to the internet received permission from the high school to do so (the yearbook is tagged as In Copyright) does the student have a reasonable request? [emphasis added]
The member has used a very, very important phrase to frame this question: "a reasonable request."
"Reasonable requests"—that is to say, requests that might not have slam-dunk legal footing, but still might be a good reason for removal—cannot be analyzed in a vacuum. In this context, to determine if a request is "reasonable," it must be assessed against the backdrop of the hosting institution's mission, the purpose of the digital collection, and the values and ethics governing both.
That is why for libraries, archives, museums, and historical societies digitizing old yearbooks and other content that can impact living, breathing people, I advise every institution adopt a policy that 1) confirms that the goal of a digitization project aligns with the mission of the institution; 2) confirms how the content will be accessed (will it be added to the catalog to be checked out as an e-book, or be openly accessible as an online archive? etc.; 3) confirms the ethics applicable to the project; and 4) creates an ethics-informed process for raising, evaluating, and acting on any concerns about the content.
For readers out there working in established archives, this ethical framework for selecting, preserving, and enabling access to archival content is already built into your institution's DNA. However, for many libraries or smaller institutions that are now able to create online collections of easily accessed content through scanning, either to hold on their own servers, or to contribute to a larger initiative--with access unmediated by a library card or on-site access--it may be an area ripe for development.
For those institutions just arriving at this phase, here is a short sample policy to govern the creation of digital content intended for open access:
ABC Library Policy on Institutionally-Generated Digital Unmediated Content
Although not the primary mission of the Library, from time to time, the ABC Library will create digital versions of content with the intention that such content be made available to the general public via the internet without the mediation of membership in the library or being on the library's premises. This content can be derived from items in the library's collection, or be generated from material borrowed by the library from another institution as part of a digitization project.
For purposes of this policy, such content is called "Institutionally-Generated Digital Unmediated Content" or for short, " Unmediated Content".
The purpose of this policy is to ensure the ABC Library's creation of such Unmediated Content, whether considered part of a collection or later included in an archive, is consistent with the Library's mission, values and ethics.
The ABC library's mission is to [INSERT]. The ABC Library's creation of Institutionally-Generated Digital Unmediated Content is consistent with this mission because [INSERT].
Code of Ethics
The ABC Library recognizes that due to the broad, direct access it can provide, the impact of Institutionally-Generated Digital Unmediated Content can be different from the impact of library collection content accessed by borrowing on-site access at the library. Therefore, the Code of Ethics governing the ABC Library's creation of such Unmediated Content is the [NAME's] Code of Ethics.
Any concerns related to the ABC Library's creation of Institutionally-Generated Digital Unmediated Content shall be evaluated per the above-listed Code of Ethics.
Institutionally-Generated Digital Unmediated Content projects with content that depicts (possibly) still-living people, minors, and sensitive subject matter shall be evaluated per the Code of Ethics prior to the creation of the Unmediated Content.
To ensure adherence with these Procedures, ABC Library shall ensure an "Ethics Statement" accompanies all Institutionally-Generated Digital Unmediated Content created by the ABC Library.
To ensure awareness and consistent application of the Library's mission and Code of Ethics at all phases of the creation and access to such Unmediated Content, all such content shall be accessible with the statement:
"This content is governed by the [INSERT] Code of Ethics. Concerns that any content violates the right of any living person, or that Code of Ethics, should be directed to [NAME] at [CONTACT INFO]."
The board of trustees maintains this policy and evaluates and revises it as necessary.
[INSERT POSITION] is responsible for oversight of this policy and procedure.
All employees and volunteers working on digitization projects must follow this policy and procedure.
Now, with those essential considerations backing us up, here are my thoughts on the member's questions:
A request for removal or redaction of digitized content should be evaluated against the mission and values of the library that created the digital content, the purpose of the digitization project, and the ethics governing the project.
In this case, if the person requested removal without giving a reason aligned with ethics of the library and/or the project, the request should be denied. On the flip side, if the reason for the request does align with the relevant ethics, it should be redacted or removed.
Here's an easy example of this playing out in the real world:
Every "Code of Ethics" I have seen governing libraries and archives requires that the institution follow the law. Therefore, if there is a legal reason for removal, it should be done.
Here's a less easy example of this playing out in the real world:
If the request is more vague, like "I just don't want people to be able to find out information about me," your institution needs to look at the values and ethics it has adopted. Does personal autonomy and concern for the privacy of living people get a high priority? If the answer is "yes", there should be a process for redaction or removal. If the answer is "no," with more priority placed on the integrity of the material, unless there is a legal reason compelling removal, the answer should be, "Sorry, our role is to preserve and make accessible this record in its original form" (or other language regarding integrity of the records, taken from your library’s Code of Ethics).
Personally, although I don't think my yearbooks have anything to hide, I like the option of being able to remove myself from the record until I am dead. But in saying that, I am expressing a value, not a legal right, and value judgments are harder than legal conclusions. That is why requests not rooted in solid legal reasons benefit from: a) the library having a strong, consistent guide, like a Code of Ethics; b) applying that guide consistently; and c) ensuring the library has the technical ability to implement your institution's decisions, which are all critical.
Thank you for bearing with me on this answer, I know it is intricate, and perhaps more than you signed on for! The steps I lay out in this answer are meant to be practical, easy to implement, and designed to help your library document that it is doing its best to balance preservation and access to documents with consideration of privacy and ethics. That is no simple balancing act, but since requests like the one sent to the member are only likely to increase, it is a good thing to be ready to do.
 The reply to the 2020 question, after walking the reader through a suggested analysis of the content, states: "This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues."
 For libraries considering creating a formal archive of digitized yearbooks, this "Ask the Lawyer" answer regarding creating digital archives that include images of children discusses the interplay of legal and ethical issues. Of course, a yearbook presumes a certain level of both awareness and willing participation, which not all images of minors do.
 It pains lawyers to hear this, but not every problem is solved by threatening to sue. Letter campaigns, online petitions, public shaming, reaching out to people in power...these are non-litigious routes to get relief from problems, too.
 I don't just mean that the content makes them look bad, I mean it genuinely meets the criteria for defamation in New York, which is very precise.
 One thing the information in old yearbooks can do is help with social engineering of scams to defraud and/or commit identity theft. "Hi, it's me, Angela, from your high school volleyball team! Remember, with the red hair? Yeah, it's me! Hey, can you cash a check for me...?" Yes, this is exactly how it happens.
 Just to confirm: this question has nothing to do with copyright (sounds like the library got the right permission to move ahead with digitization), and has everything to do with the "right to privacy," laws barring use of identity-based content, and ethics.
 The difference here is critical! A yearbook that is digitized and available only as an e-book to be checked out by a patron is very different from an open collection that is available to access and search without borrowing privileges. This is one reason why archivists have different codes of ethics than librarians.
 You will note I do not call this content "archival" content. As every library council member out there knows, libraries are not archives (although they might have some archives). That said, in this case, the creation of the digital content is likely to end up in an archive—or a collection that functions like one—and the ethical considerations align almost exactly. For that reason, the Code of Ethics of a body like the Society of American Archivists might be a good go-to for your policy. It wouldn't hurt to have a professional archivist on board as a consultant for help evaluating concerns, too.
 Remember the person faking being on the volleyball team. This is not an outlandish concern.
 I am already ahead on this. Having a hatred of head shots, I boycotted my senior picture, a decision that only makes me happier as the years go by.
 As the member points out, "removal" in this instance poses a challenge. In this case, it would be good to explore if "redaction" through an addition of a black bar to the PDF, with an appropriate footnote citing the Statement of Ethics, is possible.
Our archive was part of a regional project to initiate, scan, and make available church records from predominantly African American churches within a city. As part of this project, student/graduate assistants went to the particular churches, scanned the historical records as digital files, and provided those files to [our archive] for public access.
My question is in regards to photographs taken of minors and the restrictions for retention and online display. I would not have selected those particular items for retention, but because I was not on-site during the scanning, I have the files as part of the larger record (church programs, organizational records, committees, etc.). We have signed permissions from the church administration for online access and display of their records. In some cases the photographs are from over 20-40 years ago, in some cases they're much more recent. They're taken at private church events, Sunday school classes/activities, and public events--some as part of photo albums and some as individual files.
I'm struggling with how to treat these photographs and any associated records when I know they display minors. Any advice or direction would be greatly appreciated.
This question is at the vertex of the law and ethics. What an institution may be positioned to do with archival images legally might not be what our society demands ethically. And if the issue impacts real people with real feelings, this conflict can lead to legal claims—regardless of solid footing based on precedent and the law.
When it comes to images of children, who can't legally consent to the use of their images, the ethical issues arising from agency, respect, and self-determination are all the more critical.
The member clearly knows this, and is seeking a direction for assessing how to access, catalog, and use them—if at all. The law is often too blunt an instrument to assess ethical questions, but in this case, I believe the legal steps for assessing the use of such such images can provide a framework for the deeper assessment of the ethical considerations .
Below, I will list the "legal" steps an attorney considers when reviewing a museum or archive's acquisition, but focus on the ethical considerations connected to those factors, especially with regard to use of images of children.
1. Ownership of the Physical Object
This stage is where an institution looks at the provenance of the object and, if that physical object is to be transferred to the institution, addresses the legal priority of making sure the title is "clear."
Ethical considerations: How did the physical object come into existence? Was the creator a member of the community being documented, an academic, a journalist, or an "outsider?" Does it appear that parents or guardians were present? What was the original purpose of the object? Does any of that information suggest coercion, exploitation, or invasion of privacy?
Or, as the International Council on Archives puts it in Section 7 of their Code:
Archivists...must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.
2. Ownership of the Copyright
This stage is where an institution looks at the original ownership of the copyright of the image, any transfers of those rights, the use of those rights, if the rights have expired or been transferred to the public domain, and if any of those rights are to be transferred to the institution.
Ethical considerations: Who "owns" the rights to the image? Are the rights financially valuable? Have they been put to non-academic, commercial use before, or are they likely to be? Can your institution accept the rights in a way that limits future commercial exploitation of depicted minors?
Or, as the Society of American Archivists puts it in Section VI of their Code of Ethics:
Archivists may place restrictions on access for the protection of privacy or confidentiality of information in the records.
3. Manner of Accession
This stage is where an institution looks at the overall package it is acquiring. In this case, the member has pointed out that the data collection project may have over-stepped some (formal or informal) boundaries. Other accession challenges can be donor-imposed conditions, environmental factors, and budget concerns.
Or, as the International Council on Archives puts it in Section 2 of their Code of Ethics:
Archivists should appraise records impartially basing their judgment on a thorough knowledge of their institution’s administrative requirements and acquisitions policies.
...and in Section 5 of that same Code:
Archivists negotiating with transferring officials or owners of records should seek fair decisions based on full consideration – when applicable – the following factors: authority to transfer, donate, or sell; financial arrangements and benefits; plans for processing; copyright and conditions of access. Archivists should keep a permanent record documenting accessions, conservation and all archival work done.
4. Legal Considerations of Content
This stage is where an institution looks for specific concerns caused by the precise content in the materials. When it comes to pictures of minors, this means assessing if the content is in any way criminal, contains evidence of a crime, if the information suggests they were a ward of the state, if it originated from sealed criminal records, and if the use will in any way be commercial (and thus require permission).
Or, as the Society of American Archives puts it in Section IX of their Code of Ethics:
Archivists must uphold all federal, state, and local laws.
5. Identity of Person(s) Portrayed
This stage is where an institution looks at the depiction of the real person portrayed in the material and assesses if it poses any additional challenges.
Or, as the Society of American Archives puts it in Section VI of their Code of Ethics:
Archivists strive to promote open and equitable access to their services and the records in their care without discrimination or preferential treatment, and in accordance with legal requirements, cultural sensitivities, and institutional policies.
6. Alignment with Mission
An archive or museum will always have a mission—or "charitable purpose"—at its core. This is how it maintains a tax-exempt status, its charter, and its ability to operate. Does the contemplated use of the content you are focusing on (the images of children) match up with that mission? Or it is somehow at odds or unaligned with it?
This consideration warrants a repeat of Section 7 of the International Council on Archives Code of Ethics:
Archivists should take care that corporate and personal privacy as well as national security are protected without destroying information, especially in the case of electronic records where updating and erasure are common practice. They must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.
7. Alignment with Collection Purpose
Just as an archive or museum will always have a mission—or "charitable purpose"—at its core, so will a particular collection have a description that sets out its scope, methods, and purpose. Does the contemplated use of the content you are focusing on (the images of children) match up with that description? Or it is somehow extraneous or not quite consistent with it? If sensitive material is not squarely within the scope of the collection, it shouldn't be there at all.
Or, as the Society of American Archives puts it in Section III of their Code of Ethics:
Archivists should exercise professional judgment in acquiring, appraising, and processing historical materials. They should not allow personal beliefs or perspectives to affect their decisions.
That's great...but what to do?!?
When faced with a sensitive decision like the one posed by the member, a subject-focused analysis based on the above factors is the right way to move ahead, in one of three directions:
In this particular case, any of the three above-listed options might be appropriate. From the brief description provided by the member, it sounds like the photos were joyful documentation of a community by its own members—not exploitive or rooted in dubious practices.
But even under a "best case scenario" like the one provided by the member, it is appropriate to develop a checklist based on the mission of the institution, and the goals of the collection, to be assured any archival images with minors:
1) will not be subject to commercial exploitation by the institution or a third party accessing the collection (unless there is properly executed permission allowing such use);
2) were not created in a manner inconsistent with the mission, values, and ethics of your institution; or if they were, the collection parameters address those concerns;
3) are included in a manner consistent with the purpose of the collection; and
4) there is a process for any individual or relative to request removal of an image of a depicted minor. Since such a request would only come after there was a determination that the image was consistent with the values of the institution and fit within the scope of the collection, any evaluation of such a request should be made based on the reasons for the request.
The good news is, the same documentation that shows careful assessment of the ethical factors will help you with any future legal concerns.
And finally, there is one more option for this particular scenario, which is to ask each church to include in their weekly bulletin or routine outreach:
Our church has been selected for inclusion in the ABC institution's online archives. As part of this work, we have provided numerous photos of our events over the years, which include pictures of many of our congregants when they were children. If you have any concerns with your childhood image being included in such a collection, please alert us. Otherwise, please know that our community records are being preserved for the future!
That way, the church as the original provider of the records can "claw back" any photos that a person might object to, and your archive will have another step in its own records to show it did everything it could to respect people's agency and privacy.
Thank you for a thoughtful question.
 A critical example of this issue—use of a person's image in ways that raise question of agency and ethics (to say nothing of basic human decency) is found in the saga of the images of people named Alfred, Fassena, Jem, Renty, Delia, Jack, and Drana, all subjected to enslavement in the 19th century. The images are commonly called the "Zealey Daguerotypes" and the disputes about them start with how they come into being, as well as how they are used in the present day. For a good summary of this saga, see https://www.nytimes.com/2020/09/29/books/to-make-their-own-way-in-world-zealy-daguerreotypes.html.
 "Established" by recognized authorities, not by me. My go-to for this will be the Code of Ethics of the Society of American Archivists, found at https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics#code_of_ethics, and the Code of Ethics of the International Council on Archives, found at https://www.ica.org/en/ica-code-ethics.
 This "Ask the Lawyer" is only addressing the question about minors...I am not tackling the fact that the rights to the relatively recent photos may be held by still living people, or relatives!
 This does not need to be a flagrant "notice and takedown" process; it can be accomplished through a simple statement like: "The ABC Archive [is accredited by/follows the ethics of DEF]; if you are concerned that the depiction of any individual or the inclusion of certain content in this collection is contrary to those ethics, please contact GHI at ### to share your concern."
Is it permissible to make digital copies of choral music that is legally owned by the institution to students in choral and instrumental ensembles? Some students may be studying remotely and mailing physical copies may result in lost or non-returned copies.
There are four ways it can be permissible:
1. Check the license from the publisher and see if the purchase of the physical copies came with any digitization/duplication permission. You'd be surprised how many rights you buy (or don't buy) when you make that hard copy purchase. Publishers take a variety of approaches on this, and an individual publisher's permissions may change from work-to-work, so confirm (or rule out) this approach for each work.
2. If the license does not allow making digital copies, contact the publisher, and see if it can be expanded. Publishers are now getting many requests like this and may be ready with a simple (and affordable) solution.
3. I am not a fan of them (they are as outdated and as risky as the Ford Pinto), but the "CONTU" guidelines speak to this issue. I am including the relevant guidelines, as presented in Copyright Office Circular 21, under this answer. If one of your precise needs fits one of the "permissible uses" listed in Circular 21, you are all set.
4. Speaking of CONTU, the first "permissible use" listed in the guidelines may help you out here, with a slight twist on your scenario. In the event that the physical copies listed in the question are mailed out and not returned as feared, the guidelines allow for emergency copying after the fact (of course, they also require that at some point, you purchase more physical copies, but at least you can get the copies to the students).
Those are my four solutions, based on conventional approaches and current case law.
I'll also throw out a "fifth option" based on a slightly different approach, which, depending on some precise facts, could work for faculty teaching choral classes:
The 110 Solution
Copyright Section 110 allows an academic choral group (if meeting as part of a class) to display "a work in an amount comparable to that which is typically displayed in the course of a live classroom session," during an online class/rehearsal.
How can that help with the member's scenario?
If the class was still meeting physically, Copyright Section 110(a) would allow us to perform the song and to display the music on the in-class smart board. In the online environment, the same performance and display could happen via the internet, as allowed by 110(b) (the "TEACH Act")—again, so long as only the amount "typically" displayed in class was shown.
Whether in-person or online, the rehearsal would include review of the different parts for bass, tenor, alto and soprano, with the relevant music displayed on the screen. While an academic institution can't tell people to take screen shots of the music displayed for rehearsal purposes, students who want to snap screenshots of a class to take notes is a fact of modern-day academia. If a student who was told to purchase a copy of their part uses this method to ensure they are practicing on an incremental basis, that's out of the school's control, and the student can make their own claim to fair use.
This type of solution should never be used as a deliberate alternative to the purchase of individual copies. But so long as the display is incremental and truly a part of the in-class experience, it is a viable option.
I wish all music faculty approaching the Fall 2020 semester many good performances, whether virtual, or face-to-face. These are tough days for people who love to sing, who enjoy the community of a choir, and who need to hone their vocal art in collaboration with others. Hunting for music should not add to the burden, and with a few tricks and an awareness of the limits of the law, it doesn't have to.
Guidelines for Educational Uses of Music
The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223.
The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future, and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.
Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.
Reproduction of Copyrighted Works
1 Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.
2 For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section¹, movement or aria, but in no case more than 10 percent of the whole work. The number of copies shall not exceed one copy per pupil.
3 Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.
4 A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
5 A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)
1 Copying to create or replace or substitute for anthologies, compilations or collective works.
2 Copying of or from works intended to be “consumable” in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.
3 Copying for the purpose of performance, except as in A(1) above.
4 Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above.
5 Copying without inclusion of the copyright notice which appears on the printed copy. (iv)
Discussion of Guidelines
The Committee appreciates and commends the efforts and the cooperative and reasonable spirit of the parties who achieved the agreed guidelines on books and periodicals and on music. Representatives of the American Association of University Professors and of the Association of American Law Schools have written to the Committee strongly criticizing the guidelines, particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the university and graduate level. However, the Committee notes that the Ad Hoc group did include representatives of higher education, that the stated “purpose of the … guidelines is to state the minimum and not the maximum standards of educational fair use” and that the agreement acknowledges “there may be instances in which copying which does not fall within the guidelines … may nonetheless be permitted under the criteria of fair use.” The Committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use. Teachers will know that copying within the guidelines is fair use. Thus, the guidelines serve the purpose of fulfilling the need for greater certainty and protection for teachers. The Committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate, the parties will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months
 Checking a license is not an exact science. Some publisher's use a catch-all that is included on their invoices. Others put the information right on the music. Others like to make you really hunt for it, but it is usually part of the sale transaction. This is why, when making a purchase of music, it is good to take a screen shot or save the paperwork related to the purchase.
 Note: To my knowledge this work does not exist, but it is on my wish list of music to hear. I love it when genres collide.
 This new version would be a "derivative work" based on the original, and have its own copyright protection as a musical composition.
 We have reached the limit of my choral knowledge. Is there separate sheet music for mezzo-soprano and counter-tenor? Probably. I am sorry, I quit choir in 7th grade.
I've recently come across a situation where people are ripping DVDs they own to a digitized format in Roku. I'm providing the link at the end of this question. My concern is how is this possible? Primarily intended for personal use but I can see where this could expand out to a slippery slope where it is then more individuals get copies, etc. I'd would like the lawyer to weigh in on this: https://www.dvdsmith.com/rip-dvd/stream-dvd-movie-to-tv-with-roku-3.html
“Slippery slope,” indeed. The member has identified a battleground in the “1201 wars.”
“1201” is a Section of the Copyright Act. It bars working around the anti-duplication protections built into certain types of copyrighted works (software, digital entertainment). It also bars “trafficking” in the technology that can perform those work-arounds. DVDSmith appears to sell this technology.
For those of you who don’t want to follow the link in the question, I checked out the DVDSmith, and here is their “About” description:
“DVDSmith Inc. (www.dvdsmith.com) is a multimedia software company that develops and markets DVD copy, DVD ripper programs for both Windows and Mac platforms. DVDSmith products will circumvent the copy-protection schemes used on commercial DVDs and enable you to make copies of store-bought DVDs.”
I puttered around the site a bit, not just taking their word for what they are. And while I didn’t delve too deep, as the member points out, the particular product linked to the question does boast the ability to enable streaming of non-supported formats to HDTV via the Roku 3. It claims to do so by enabling the conversion of those files from other formats, a process that can require getting around (“circumventing”) access control technology.
Is such conversion and duplication always wrong? No. While 1201 can bar the type of copyright “circumvention” described by DVDSmith, and can also bar anti-circumvention tech,
1201 also creates permanent and temporary exemptions to one or more of the statute’s prohibitions, including exemptions for educators and libraries.
Here is the text of the permanent exemption for libraries:
(d) Exemption for nonprofit libraries, archives, and educational institutions.
(1) A nonprofit library, archives, or educational institution which gains access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work for the sole purpose of engaging in conduct permitted under this title shall not be in violation of subsection (a)(1)(A). A copy of a work to which access has been gained under this paragraph—
(A) may not be retained longer than necessary to make such good faith determination; and
(B) may not be used for any other purpose.
(2) The exemption made available under paragraph (1) shall only apply with respect to a work when an identical copy of that work is not reasonably available in another form.
Is your head starting to hurt? You’re not alone.
This combination of strong prohibitions and well-defined exceptions creates the “1201 contradiction,” where some circumventions of copyright controls are expressly allowed—but selling to enable them may be illegal.
There is a ton of thorough analysis out there on “1201,” and this “contradiction.” It comes from a range of perspectives: the entertainment and software industries (whose general position is that the rules aren’t strict enough), the innovation, information, and academic sectors (whose general position is that the rules are too strict) and government (whose general approach is to try and please everybody, and as usual, makes nobody happy).
To sample the variety of 1201 analysis, try reviewing the materials at:
…and then reading the materials at:
Once you recover from the whiplash of these diverging priorities and opinions, you’ll realize anew that just like the Marvel Universe, the Copyright Universe has numerous alternate realities.
To answer the member’s question: what is my take on this?
The member is right to feel cautious about the products offered by DVDSmith, since under 1201, the capability described could violate the law. But there ARE exceptions to what 1201 bars, and libraries should be ready to exercise them, advocate for them, and make sure they are meeting their needs.
My deepest feeling is that like Section 108, the basics of Section 1201 should be taught in library school, and each librarian ready to advocate for the position they feel serves the public.
Thanks for a great question!
 How about a question about copyright protections for the mountain vistas of the Adirondacks, or a trademark on the culture of Martha’s Vineyard?
 It had the same vibe as a site for dubious herbal remedies.
 Hello, FBI. No, I did not download the software and do a test run with my “13th Warrior” DVD.
 As defined in the statute, to “circumvent” generally refers to acts such as avoiding, bypassing, removing, deactivating, or impairing tech that prevents copying. See 17 U.S.C. § 1201(a)(3)(A), (b)(2)(A).
 The current temporary (triennial) exemptions are here: https://www.federalregister.gov/documents/2018/10/26/2018-23241/exemption-to-prohibition-on-circumvention-of-copyright-protection-systems-for-access-control
We are putting together a commemorative calendar as a fundraiser to celebrate the library's 90th year. We're using old photographs that the library has and also photographs from old yearbooks. Is there an issue with copyright infringement in doing this?
Before sitting down to write a "one size fits all" answer, I gave the member a call to discuss this project.
What happened on the call? I can't tell you; it's confidential. BUT, I can say that to give any advice, I had to ask the following questions:
These questions were asked in order to 1) assess the if the photographs were protected by copyright; 2) assess the ability of the library to make a "fair use" defense for using them; and 3) probe for any legal sensitivities possibly related to the content.
This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues. For this reason (and because old hairstyles are eternally amusing) yearbook projects are hot right now: the focus of many digitization initiatives, and the cause of many numerous scandals-in-retrospect.
Yearbooks are also getting a good showing in copyright case law these days. The most recent is Dlugolecki v. Poppel, a lawsuit over two yearbook photos of actress-turned-duchess Meghan Markle (a headshot and a group photo), taken when the future royal was in high school.
Dlugolecki shows the "worst-case scenario" answer to the member's question. In this case, when "Good Morning America" and other ABC shows used his photos in their coverage of Ms. Markle's rise to royalty, professional photographer John Dlugolecki sued ABC (and others).
His claim? That by re-using the printed yearbook photos he shot in the '90's, ABC (and others) infringed his copyright via broadcast in 2017.
The case was brought in California and heard before the Honorable George H. Wu. It settled on December 11, 2019, but not before ABC made--and lost--a preliminary "fair use" defense. Judge Wu, applying the fair use "four factor" analysis set by Section 107 of the Copyright Act, found that even though the photos hadn't been registered by photographer Dlugolecki prior to their use by ABC, the undisputed facts of the case (his photos were clearly used in the broadcasts) could warrant a finding of infringement.
Now, a commemorative calendar by a not-for-profit library is not the "Good Morning America" show. But as we can see in Dlugolecki, yearbook photos can get protection just like any other copyrighted medium, and re-use might not be considered fair use. Which means that under the right circumstances (including if the copyright holder is motivated enough), a problem could arise for unauthorized use of yearbook content.
So, the answer to the member's question is: yes, there can be an issue. Because of that, careful planning, and if possible, working with a copyright attorney, is the way to approach use and re-publication of photographs from a yearbook.
 I asked about “sensitive content” not to suggest it be expurgated, but to offer legal guidance on presenting it properly (although I doubt “sensitive content” would be selected for a commemorative calendar).
 I am writing this in January 2, 2020; my first work of the New Year!
 Decided in United States District Court for the Central District of California on August 22, 2019 (CV 18-3905-GW)(GJSx).
 Cases like this often settle. While this is very frustrating for attorneys conducting research (who like to read findings and judicial opinions), it is no doubt lucrative for the plaintiffs, and an act of risk management for the defendants.
We received two grant applications for projects involving the digitization of high school student newspapers/magazines. The schools have given permission for these materials to be made available on a historic resource-focused, free database.
When our board was reviewing these grant applications, it was brought up that sharing student publications may not be possible under FERPA regulations. The board was concerned that these student publications might be considered educational records, which under FERPA would be subject to restricted access. If FERPA applies to these materials, they could not be uploaded and made accessible via an online database, and consequently would not be eligible for grant funding.
Does FERPA regulate student publications? Are there any other legal reasons student could not be made available freely in an online repository?
It took me 4 cups of coffee to figure out how to reply to this question! And it’s not because I didn’t know the answer.
FERPA is the “Family Rights Privacy Act.” It bars disclosure of students’ “education records.”
“Education records” (like grades, disciplinary reports, attendance) are defined by FERPA as records:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.
That is the entirety of the definition, from which many things—like names, team participation, dates of birth—are then excluded.
The punishment for a FERPA violation is loss of ability to qualify for federal funds…a scary prospect for any school. A FERPA violation also comes with a heavy dose of self-correction and shame, as an institution must fix whatever caused the problem, and often, send out letters of correction/apology.
With ten years as an in-house attorney at a university under my belt (and thus, a ten years’ worth of “FERPA Fear” in my brain), the minute I read this submission, I thought: Pshaw, no student newspaper or magazine is an education record under FERPA! These grants are fine.
That was at cup #1. But as I started cup #2, I thought: But why are these grants fine? Why is no student newspaper or magazine an education record under FERPA? Technically, they could meet the definition.
And those cocky ten years in higher ed were giving me no reason for my answer.
For a lawyer, an answer without reasoning is no answer at all. So I kept sipping (and researching).
As I settled into cup #3, I reviewed some FERPA case law. But although this were fun to revisit, by the time I was brewing cup #4, I realized: This is not telling me why a student newspaper or magazine doesn’t meet the definition of “education record” under FERPA.
It was only when I re-read FERPA’s definition for “disclosure” that I could back up my instinctive answer with actual legal reasoning.
Remember, FERPA bars “disclosure” of student education records. As it says in 20 U.S.C. 1232g(b)(1) and (b)(2)):
"Disclosure" means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record. [emphasis added]
As I sipped gratefully at cup #4, there was the answer: if any student newspaper or magazine has content in violation of FERPA, the violation happened the minute it rolled off the presses…not when the content was published to a larger audience.
It’s a bit metaphysical (or perhaps ontological) but bear with me: Re-publication in the way the member’s question describes—while arguably making an original violation bigger—cannot create a violation where there was none before. In other words, if FERPA-protected educational records were already “disclosed” via a student newspaper or magazine, allowing other people (students, parents, advertisers) unauthorized access to education records, there was already was a violation, back when the content was first published. And if protected records aren’t already disclosed, the re-publication won’t be a forbidden disclosure, now.
To illustrate this, here is a hypothetical. Let’s say that in 1991, the New Hartford High School newspaper (the Tattler!) printed all of my grades (without my permission). That would have been a FERPA violation, about which I could have complained to the U.S. Department of Education.
Fast-forward to 2019. Let’s say the Tattler ends up on New York Heritage, where everyone could then see that during the first Iraq war, I was a very strong scholar in English and History, but things were…a tad lacking in Math.
While that would be a continuation of the old FERPA violation, it would not be a new violation (even if I was just seeing it for the first time). And while I could still conceivably make a complaint to the USDOE, asking them to ask the school to work with New York Heritage to take it down, my options to do so would be limited, since there is no private cause of action or right to sue under FERPA.
So, while I cannot “clear” unseen content for FERPA violations (remember my Tattler scenario), I can say that a new FERPA violation will not be caused by posting already-published material on New York Heritage.
In that same spirit, I will now address the other question the member asks: Are there any other legal reasons student [publications] could not be made available freely in an online repository?
I wish I could just say “No,” and everyone could not worry about this at all. But we must never underestimate the creativity of lawyers and plaintiffs in finding new ways to threaten legal action! If the content of a particular student newspaper or magazine is scandalous or allegedly harmful enough, an attorney could try to frame a claim around some type of defamation or personal injury action. And of course, when publishing content, there is always a potential claim based on copyright or trademark….even if that claim turns out to be bogus.
But these cautionary words are based on highly speculative scenarios. There is no outright bar on sharing student publication content the way there is for disclosing grades, health information, and attendance-related records. And because the digitization of student publications creates a useful array of otherwise ephemeral material, and can be a valuable snapshot of a culture at a particular place in time, there are strong legal defenses for the digitization and publication of them by not-for-profit entities.
To position a student publication digitization project to stand up to legal threats, a solid understanding and articulation of why the project has academic, social, and/or historic value, and a clear ability to show there is no “for-profit” motive, are fundamental. By thinking through a digitization project, establishing its social value, and documenting its adherence to professional and scholarly ethics, it is easier to defend making the material freely available—and searchable.
The good thing about grant funding is that the application and reporting process often builds these analyses right into the project.
Thanks for this stimulating question!
 The whole list of exclusions is in the regulations found here: https://www2.ed.gov/policy/gen/guid/fpco/pdf/ferparegs.pdf. It does not specifically exclude publications.
 I could write a book, or at least a very long, heavily footnoted legal brief on these defenses, but for purposes of this response, you can trust they are there.
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.
"The 1923 footnote": When "Ask the Lawyer" started in 2016, the author was not thinking about how, just a few years later, the "Public Domain" date would change. To preserve this shameful lack of foresight, but also ensure accurate information, as part of the "2021 ATL Audit" we are adding this footnote: Please substitute "1923" with [whatever year it is minus 95]. For instance, if it is 2021, the year should be 1926. When in doubt, visit the excellent chart at https://copyright.cornell.edu/publicdomain.
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’ve recently had some questions regarding the ability to provide access to dissertations, theses, and other cataloged graduate work. How does the law govern these questions?
Many college and university libraries make it a practice to bind and inventory the academic work of their graduates—a tradition that showcases the achievements of the institution, maintains an important bond between the library and the faculty (who often sign the final copy, to signify approval), and allows graduates to cite and showcase their work. These collections are often honored institutional assets: a neatly reproduced, annually increased, and routinely cataloged series of books occupying a special space in the library.
(When a graduate later becomes famous, they can also pose a persistent and annoying theft risk…but that is not the topic at hand!)
With the dawn of the digital age now at high noon, some college and university libraries are also including these home-grown works in home-grown databases. This requires a digital infrastructure that not all academic libraries can afford or support, though, so for many, the old-school binding and shelving of graduate work is still the default practice. Many institutions are now also considering whether or not to digitize their back catalog, and of course are also seeking ways to promote, provide and oversee appropriate patron access to what they have.
Overall, these “old school” copies can pose an interesting access challenge. They are generally listed in the library’s catalog, and considered a part of the active collection. But what rights does the institution have to them? How is access to them governed by copyright law, which often depends on the distinction between “published” and “unpublished?” Can they circulate, be accessed via inter-library loan, be reproduced for archival purposes, or be digitized? How much can the original author—now an alum—control them?
To answer this, I must use the phrase that is the lawyer’s most trusted companion: it depends.
We’ll take the relevant factors in order of appearance:
First, it is important to confirm: the work of a student, even if directed and overseen by a faculty member or faculty committee, is owned by that student. Student-generated work*, even if the topic was suggested by someone else, and even if the content is vigorously critiqued by someone else (and then presumably re-written), is an “original work of authorship,” and the moment it is “fixed in a tangible medium of expression,” it is owned by the author (the author). Of course, the student can sell the ownership, or donate it—but unless that transfer has been recorded in writing, it remains theirs…and then their heir’s…for the life of the author, plus 70 years.**
Second, generally, the permission to reproduce the academic work is a creature of a contract between the author (the student) and the institution (the college or university). This permission can run the range from a completely unlimited license of all the rights of copyright (to reproduce, distribute, perform, display, create derivative works), to a very limited license (to make one hard copy and add it to the catalog). This permission might be revocable, or irrevocable. It might be exclusive, or non-exclusive. It could even make use of Creative Commons licenses to create a very liberal mode of access. Critically, though…these terms can vary from institution to institution, from year to year, from student to student. There is no bright line rule.
Third, depending on the extent of the license, and other factors, the thesis or dissertation may, or may not, be “published,” as that term is defined under the Copyright Code. The ability to replicate, digitize, and create archive copies under Section 108 will be governed, in part, by publication status. Section 108 is a great asset for libraries and archives, often allowing duplication of entire articles and works…but it requires the well-documented alignment of precise factors. [NOTE: A copyright registration that included the date of publication would take care of this factor. Some institutions and authors do register these works…and if they are put in the catalog for lending, registration should be effected before circulation begins, since to do otherwise could compromise the author’s rights].
Fourth, and finally, the policies of the college or university will govern access, too. There could even be a day when an aged alum, having lost their treasured copy, may show up demand access to the library’s…only to be told that although they are without a doubt the copyright owner, they have to fill out a form, or renew their card, or wait until the Reference Librarian is back from break, so they can access their work.
That said, they are the only one who might not have to do a 108 analysis before making a copy!
*Work that is actually co-authored by a faculty member and a student is subject to the rules of co-ownership.
**As you know, copyright duration varies. A great breakdown of how to calculate duration is here: https://www.copyright.gov/circs/circ15a.pdf
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.