Submission Date:
Question:
Since the 1970s, Villa Maria College has published an annual anthology of student work called Skald (https://www.villa.edu/campus-life/skald/). This anthology is printed and distributed to students, faculty, staff, and prospective students who visit our admissions office. The anthology is also shared with the Columbia Scholastic Press Association as part of their Crown competition.
While we have made the most recent edition available on our college website using the Issuu tool, we would like to digitize the older editions and make them available as a collection in New York Heritage or New York Historic Newspapers. However, as far as I am aware, we have never formally asked the students to waive their copyrights or give us copyright permissions for digital publication as part of the anthology submission process. We certainly would not have asked about alternate format publication copyrights when the magazine was first established as these formats did not yet exist for the general public.
My question then is, would we be within copyright law to digitize and place these magazines online? Villa owns the copyright to the magazine as a whole and the design and layout as the original publisher, but I want to make sure that the copyrights of the individual pieces within the anthology will not supersede our copyright and create legal liability for the college.
Answer:
To address this question, I took a look at several issues of "Skald Art & Literary Magazine."
Each issue was interesting, but it was viewing the works collectively that brought true rewards.
Every issue was a different size, was informed by a different design sensibility, and had a different type of binding.
One was like a small stack of matte postcards, bound together by silvery screws.
One was a larger, glossy collection of art and poetry, held together by wire.
Another was square-bound, with velvety paper, and blocky text of turquoise, mustard, and brown.[1]
All in all, the pile of "Skald" showcased why print, even if evolving, will never truly die. There is too much to be gained from the tactile experience of holding words and pictures in your hand.
That said, as the member's submission suggests, the digitization of legacy publications can be important--and can require consideration of copyright.
In this case, the indicia on the physical copies was consistent with what the member described--the overall copyright of the magazine (a "collective work") was in the name of Villa Maria. And without any sign otherwise, the listed student authors were the owners of the individual works.
As provided in Section 201(c) of the Copyright Act:
(c)Contributions to Collective Works.—
Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.
Since technology has made not only the digital reproduction of compilations, but their dis-aggregation (as in, offering an article or picture separately from the work it was originally presented with), possible, a number of cases have ruled on when and how an owner of a "collective work" such as Skald can reproduce the work digitally.
The seminal case on this was New York Times Co. v. Tasini[2], which held that while the newspaper involved may have held the rights to digitize entire back issues, offering distinct articles separately for re-sale was an infringement of the authors' copyrights.
Almost twenty years later, additional cases[3] have further refined this issue, and set up a general rule that--unless there are terms limiting the medium or length of a license to use something in a collective work--the digitization of a collective work is a legitimate power under the work's copyright. On the flip side, digitization that enables the ability to separately duplicate and commodify an author's contribution to such a work could be an infringement.
So, in this case, unless there are separate written agreements with the authors specifying otherwise, the owner of the literary magazine can arrange for digital publication of the work as a whole--but must take care that it is not creating digital copies of individual contributions.
This is where things can get tricky. The college will have to plan out the project and pay close attention to the technology, taking care that the digital image is clearly a copy of the compilation, and not the individual contribution.
This is where the magazine's distinctive layout and design can really come in handy. By digitizing the pages of the entire magazine--not just the work it features--the final product should capture and visually convey its identity as part of a collective work. That approach should also be emphasized in the index language[4] and reinforced via the digital format (more on that in a few paragraphs).
The member's question doesn't touch on some of the other questions that digitization of student work can bring up, but since anticipating them is part of properly handling them, I'll list them:
- Some people whose images were used as part of a student art project could now object;
- Some students who feel their work is not a good reflection of who they are now (personally or professionally) could object;
- Student work that is perceived as out of pace with contemporary standards of respectful discourse could cause embarrassment or controversy;
- Some students could still try and argue that although it is clear the college owns the compilation, making the digitization available infringes their copyright.
Some of these concerns are "legal" (as in, they could bring liability) and some are "relational" (as in, they could bring bad PR, or unhappy alumni). All of them, if not handled quickly and efficiently, can turn into a "thing."[5]
A catch-all way to give such concerns an orderly path to be submitted to your institution--and to address the copyright priorities I describe above- would be a statement along with the information accompanying the digital publication[6]:
"(c) YEAR. The copyright to this collective work is owned by Villa Maria College. Aside from viewing the images per the Terms of Use of INSERT PUBLICATION SITE, no permission is given to use any image or text from this collective work, for any purpose whatsoever. For inquiries about using a particular work, interested parties must reach out directly to the author. Any person who believes their work, image, or other right is impacted by this digital publication may contact CONTACT INFO[7] to report their concerns." [8]
Thank you for a great question! And thank you for sharing a remarkable example of a student-led pub
[1] It looked like a yearbook for a school where a person could major in skateboarding.
[2] N.Y. Times Co. V. Tasini, U.S.Supreme Court, (2001)
[3] Such as Auscape Intl v. National Geographic Society (U.S. District Court for the Southern District of New York, (20040, and Mosca v. Yankee Publishing, Inc. (U.S.District Court of Maine) (2015).
[4] In New York Heritage, this is the section "About" a particular collection.
[5] What's a "thing?' It's a... you know...a thing. Like: an online petition, protests, law suit, angry letters, cancellation, documentary, Twitterstorm, etc. While a "thing" can be started by just about anything, not having a designated place for people to direct their grievances--so they can be addressed promptly and respectfully--is often a major factor.
[6] Usually in the "Index" or "Information" function, and/or included as metadata (like the "About" section referenced in footnote #4).
[7] This should be the address for requesting removal per the DMCA. For more information on having a designated address for DMCA "notice and takedown", see Ask the Lawyer Copyright protocols for restaurant menus.
[8] As with all template notices, it is best to have the final text reviewed by your lawyer, in this case after review of the specific publication and the final form of the digitization.
Tag:
Academic Libraries, Copyright, Digitization and Copyright, Student Works
