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BASSO: Beware, if they were previously unpublished or the trademark is still monetized.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The bottom line: There is no bright-line rule I can provide to give assurances for works that are post-1923 (and, for unpublished works like journals or private recordings, items authored prior to that date).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.