Copyright and Orphaned Works

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Today, we’re going to talk about orphaned works. If you’ve spent any time on Archive of Our Own, you may have seen this term as the site has set up an account so writers can break their tie to a story they’ve written, effectively abandoning their rights to it. In terms of copyright, an orphaned work is one that is believed to be under copyright (because we are currently in an environment where all works fixed in a tangible form are copyright protected, regardless of whether or not a copyright symbol is present), but the copyright holder cannot be determined for whatever reason.

As you might expect, trying to work with a work that has been deemed “orphaned” is a nightmare. Because there is no clear copyright holder, there is no one to approach for permission or licensing possibilities. That makes most orphaned works off limits in terms of derivative, transformative, and remix situations. There are conditions where you might be able to work out using an orphaned work, including due diligence to establish a clear copyright holder, acknowledging on the new artifact that part of the materials are orphaned, and making reasonable compensation to the copyright holder if they should suddenly appear. While there have been attempts to get the law modified to include an length of time on how long an artifact can be considered “orphaned” and protected by copyright, Congress has yet to actually sign off on any of them.

All of that said, an orphaned work can pass into the Public Domain the way any other copyrighted work does. If a year of creation can be established, then that year is used to determine when the artifact falls into the Public Domain. At the time of this writing, an orphaned work created in 1923 or earlier is in the Public Domain. (Aritfact’s creation date plus ninety years, to match copyright’s author lifespan plus ninety years rule.)

What this all really means is that if you want to use an artifact created after 1923 with no clear copyright holder, treat it like any other copyrighted artifact, do due diligence, and don’t make bad decisions.


Broadcast Media and Public Domain

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Right around the time I was finishing up Alice’s Adventures in Wonderland, I was watching an Extra Credits episode (I was a bad researcher and did not note the video’s URL.) where they used one of Tenniel’s illustration right next to a Disney clip. It made me wonder: How does anyone determine whether or not a movie or television show is in the Public Domain?

The obvious (to me) answer was: They’d go by the current copyright laws and the last known clear copyright holder.

The actual answer, it turns out is far more complicated, simply because of the changing nature of copyright law (although being unable to identify who holds the copyright free and clear also causes headaches. This is such a thorny issue, in fact, that there is no official list of movies or television shows in the Public Domain, and most legal sites who have made such an attempt or consulted on a site trying to make such an attempt have included a note that those looking to use a movie or television show thought to be in the Public Domain should consult with a lawyer.

Some movies have legitimately come into the Public Domain, their copyrights expiring according to the copyright law of the time. Any television show thought to be in the Public Domain (because major revisions to copyright law in 1976 and 1989 have really muddied this matter) are potentially in the Public Domain because the copyright was renewed improperly, dropping the show into the Public Domain, or because there was no copyright symbol on the show. (This is a great quick reference on the tip of this iceberg.) Interestingly, some shows are only partially eligible for Public Domain because some of their episodes contain elements that are still copyrighted.

Really, I think looking at how copyright laws have affected movies and television is a really interesting study in both copyright law and how it affects artifacts over time.

Copyright and Public Domain (Death Not Necessarily Required)

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

I’ve been throwing around a term that I keep promising to discuss, and today’s that day. We’ve discussed copyright, Creative Commons, and Fair Use. Now, let’s look at what I consider the fourth leg to this discussion: Public Domain. When an artifact is in the Public Domain, there are no copyright restrictions on it. You can modify, perform, transform to your heart’s content. You can even monetize your creation.

It sounds great, right? Where do I find these mystical copyright-free artifacts?

Well…it’s trickier than it looks. Because copyright laws change, Public Domain criteria change. Because copyright holders often have estates (or family), an artifact’s journey into the Public Domain can endure a few hiccups along the way. (In some cases, a copyright holder’s estate or family can legally extend a copyright.) Because that’s just how some copyright holders function, Public Domain can be abused or extended without a clear right. (Can anyone sing “Happy Birthday to You” in a performance situation? That’s still one of my favorites.)

I could try to offer you some sort of hard and fast rule, but the simple fact of the matter is: There isn’t one. The best place to start if you’re trying to determine whether or not something has entered the Public Domain is this rather long and hard to slog through chart. If the artifact appears to be in the Public Domain according to this chart, then actually go research the artifact’s copyright…just to be safe. (I’m a big believer in going above and beyond in your due diligence of pursuing whether or not something is in the Public Domain, just because it’s such a sticky issue.)

The one hard and fast rule I can offer is this (and we’ve discussed this before): Just because something is posted to the internet or published in a library book, that doesn’t mean it is in the Public Domain. This is perhaps one of the biggest myths about Public Domain. Remember from our earlier discussions that copyright is conferred at the moment something is fixed into a tangible form, including a digital form. If you’re ever unsure, err on the side of caution and just assume the material is copyrighted. If you’re desperate to use the material, contact the site publisher or the local library and find out. Never just assume. That way lies much agony. Don’t do it. (Is that enough warning for you?)

You may have noticed that the chart says the copyright holder has to have been dead for some period before the artifact they held the copyright for becomes Public Domain. That is often true, but some artists, especially when Creative Commons and remix culture were just beginning to gain traction in digital spaces, released a piece or two of their work directly into the Public Domain because they wanted to make it available to the remix culture and see what came of it. I believe Creative Commons has a section on how best to release something directly into the Public Domain if you’re interested in checking that out. Again, just because a living artist/copyright holder has released one artifact into the Public Domain, don’t fall into the trap of thinking all of their work is in the Public Domain. Copyright is assigned at the artifact level, not the creator/copyright holder level.

So, long story short: Artifacts in the Public Domain have no copyright restrictions on them, but the road to becoming Public Domain is a treacherous and tricky one. If you want to use Public Domain artifacts, do your homework thoroughly to make sure it is actually in the Public Domain. Always err on the side of copyright if you aren’t sure. Don’t invite disaster on your head. Fair enough?

Copyright in a Digital Media Age

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

Despite the fact digital and new media have been around for over a decade, in the grand scheme of things they’re still a very new frontier and as a result, copyright mistakes happen frequently and often. Most of them stem from a misunderstanding (or a flat out lack of education) about how copyright affects digital media. But it’s thanks to digital media that so many of us are getting an education in how copyright really works at all.

Why is digital media such a thorn in copyright’s side? Remember that copyright is assigned at the moment an artifact becomes tangible. Digital artifacts never really become “tangible”. We can hold printed versions of online material. We can hold artifacts that house this material. But we cannot actually hold the material itself. Digital media never achieves a tangible form. In 1976, the copyright law was modified to accommodate other non-tangible artifacts, namely broadcast media, movies, and music, by adding the condition “fixed”. So, for the last almost forty years, the moment something is fixed, or set into a given medium, it gains copyright protection. The precedent was there to extend the same rights to digital media, but it took longer for non-technical governing bodies to wrap their mind around the idea that fixing something in bytes wasn’t much different than fixing it in celluloid. In fact, it wasn’t until 1998, when the highly abused, highly controversial DMCA was signed into law, that digital artifacts gained the same status as broadcast media, movies, and music and were guaranteed copyright protection.

Ideally, that should have been that. The five rights granted to non-digital creators were extended to digital creators. Done.

Not so done. While the law exists to protect digital media, none of us is born with that knowledge and for some reason we’re reluctant to teach it beyond a “Don’t plagiarize Wikipedia” lecture in English and history classes. Outside the classroom, copyright education seems to come when someone gets caught violating someone else’s copyright, and even then we don’t turn it into the learning moment it needs to be. That’s not entirely helpful. I will never forget working with a high school student one day, who told me she had copied information from the internet because it’s public information. I had to explain to her the difference between public domain (an aspect of copyright we’ll get into later on in this series) and publicly accessible. It was difficult for her to wrap her mind around, and she was an intelligent kid, because she had never been exposed to that before.

Even in the public domain narration work I’m doing, there are adults who don’t understand that difference and find themselves challenged when they try to perform something that is protected by someone else’s copyright. Pinterest users also get friendly little reminders periodically when they pin something a copyright holder would prefer not be shared through any site they cannot personally control. Pinterest is pretty good about honoring the copyright holder’s request and gently reminding users who have the pin to respect copyright.

What’s important here is to remember that digital artifacts are considered “fixed” and therefore have copyright protection, even if the copyright symbol is not visible. That means you cannot legally distribute, perform, copy, or create derivative works from a digital artifact digitally or otherwise without the copyright holder’s permission. It also means that you cannot legally take a non-digital artifact and recreate and distribute it digitally. If it’s not yours, keep your life simple and don’t copy or share without permission.

Friday Five: Copyright Edition

So, it turns out a lot of us have copyright education on the brain right now. I have my Copyright Primer series going, and other sites are exploring their own favorite topics. But we’ll start with the one that’s probably the most confusing.

1. James Bond is in the Public Domain…sort of. And that “sort of” is a doozy. When we get to Public Domain in the Primer, you’ll see just how thorny an issue Public Domain really is, but James Bond is one of those particularly treacherous copyright minefields because it not only addresses the books, but also movies, games, and any other tie-in materials that have been licensed. When we say James Bond is in the Public Domain, it’s only the Ian Fleming books that are in the Public Domain. Everything else is still under copyright protection. The other part of that “sort of” is that the Ian Fleming-written James Bond books are not in the Public Domain across the globe. They’re only in the Public Domain for those countries that signed the Berne Convention without modification. Here in the United States, Bond is under copyright protection across the board. (This is a really great case study for how Public Domain works across political and media borders.)

2. During the Primer, I’ll keep coming back to the idea that digital media is changing our relationship with and understanding of copyright, but digital technology is also forcing us to rethink the purpose of certain copyright protections. As the world changes in terms of media creation and distribution, copyright laws have to evolve to reflect the current state of things.

3. Copyright and IP protection laws are difficult to understand and apply, even for the most well-meaning. But certain myths keep persisting. (If Gawker is more your speed, io9 did a great job discussing these earlier this week.) The moral of the story here is that you should treat any statement about copyright the same way you should treat alarmist claims on Facebook: Go find a reputable source and check it out.

4. One of the myths that persists that really isn’t covered in either list is the concept of the “poor man’s copyright“. This is the idea that mailing something to yourself and then not opening it unless your copyright is challenged will provide proof of your copyright. The idea extends into digital fields, assuming that a timestamp will protect you if a copyright claim surfaces against you. There are a lot of problems with this myth, not the least of which is the fact that multiple people can legitimately come up with similar products without ever seeing or hearing about the other products. (Reseach can only do so much in some situations.) If you’re really that worried about it, registration is fairly inexpensive.

5. I recently learned that you can tell Google Images to search only for images that fit certain copyright and Creative Commons criteria. Type in your search term, and on the results page find “Search tools” at the top. When you click on it, a menu opens. Clicking on “Usage rights” brings up a selection of options including the most common Creative Commons combinations. It can be incredibly helpful when trying to find images for audiobook and e-book covers, but always check out the image thoroughly because the tool isn’t foolproof.

There you go. Five links/tips to augment the copyright primer, and to help you navigate those copy waters a bit better armed. Check back next week, when I will share five links and tips on whatever I find.

Public Domain Music in Audiobooks

One of the unexpected side effects of narrating audiobooks is working with authors and public domain books that have songs in them. My personal reading material tends toward science fiction and fantasy, so it’s no surprise I gravitate toward science fiction and fantasy in my narrating work. But those crazy science fiction and fantasy authors…they sometimes like to bring flavor to their world by writing songs that characters sometimes break into. It’s not a Disney musical or anything, but it can make for an interesting day of narrating.

When the author has also thought through the tune and has it handy, it makes things fairly simple. When the author hasn’t… Well, let’s just say I’m figuring out filking at an accelerated rate.

Some of the books I work on, though, are public domain, which is both a blessing and a curse when a song comes up. In an audiobook where referenced music is under copyright, you just can’t sing the song if one is present. (I have actually been bad and broken this once. It was one line in a book narrated for a not-for-profit organization.) In an audiobook where the referenced music is in the public domain, you can sing away. Theoretically.

At the moment, I’m working on a pair of public domain audiobooks where there are many songs that can be (and often are) read as poems even though they were written as songs. So when I was preparing the books for narration, I tried to find the original tunes. (There are a number of copyrighted versions of these songs, but I had no desire to approach those avenues.) I was able to find a few of the tunes, but one is a parody of a song that was popular at the time the books were written.

A song whose tune that has apparently been lost to time. (I combed music archives looking for it.)

So, what happens to a song in an audiobook when the public domain tune is no longer available? In this case, I felt like I couldn’t just randomly switch back and forth between singing the tunes I could find and reciting the poems the rest of the time, so I made the decision to just recite everything to keep things uniform. It hasn’t been the easiest decision. Heh.

As someone very interested in adaptation and rip-mix-burn, it’s been really interesting to actually be working with these copyright issues and trying to make the right decisions for the material and for my performance. Enlightening, really. I’m glad I’m getting this opportunity to explore the copyright lines in a practical setting.