Little facts: on copyright law

I'm working on a project for the Homes By Architects Tour and a renovated home on the tour is a historic project that is being renovated.

Because of the nature of the project, it's helpful to show the historic images. However copyright law may come into affect when you want to republish an image.

Here's an exerpt from of an article on the topic from Standford University:

How long does a copyright last?

For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.

All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002. And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047.

Fair use is often used as an explination of republication without a copyright holder's permission but do you know what "Fair Use" actually entails?

acording tothe US Copyright Office,

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: 

• 1. The purpose and character of the use, including whether such use is of 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
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

In this case, the project is being produced for a not-for-profit entity who's primary purpose is the education of the public about architecture and representation of Architects. So this could be considered teaching, or scholarship. I don't believe it could considered as news reporting because the product I am working on is not part of a journal of record.

It's important however that I also consider that since I am a commercial enterprise, that if I publish it here on my blog, it could be considered advertising. If I put my logo on the video and it is used anywhere, that too could make it considered a advertisement.

So that leaves the necessity to verify the age of the original publication, but more importantly the original copyright holder.

Comments

[Lindsey Collins]

I'm not sure if you're still thinking about fair use and copyright, but I'm an instructional designer for an online learning company, so I have to deal with rights issues often. We're also in this weird place where we do education, but we're for-profit, so it's not an easy decision all the time. You mentioned that you're working on restorations, and there's one step of the copyright flow that you missed in your blog that might help you.

If a work was published before 1963 and it wasn't created by a corporation, the author had to renew the copyright before the end of the 28th year. So if you're working with images published in the 30s, 40s, or 50s, you may be dealing with public domain material.

Here's a useful diagram http://www.publicdomainsherpa.com/copyright-duration1.html

And this page suggests that less than 15% of works eligible for renewal between 1923 and 1963 were actually renewed.

http://www.publicdomainsherpa.com/copyright-renewal.html

This site provides some information on how to determine whether copyright was renewed:

http://onlinebooks.library.upenn.edu/renewals.html

But finally, you should also remember that in order to have a good fair use case, you don't need to pass all four tests with flying colors. Your use can be both commercial and covered under fair use. This site offers some reasonable information on applying fair use: http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-media-literacy-education

It focuses a lot on education, but they make the point that news media is for-profit, yet it still makes use of unlicensed images. So do documentaries. It also suggests that using quotations for the purpose of commentary and forwarding ideas has been considered a fair use since forever. If you are showing the transformation of an old architectural structure to a new one, I would say that the old image serves the same purpose as a quotation and would be a fair use, even if it's covered under copyright, and even if it serves an advertising purpose. Also, by the way, if you can find a government image, those are almost always public domain anyway.

Copyright claims don't always result in an immediate fine. Copyright holders often don't want to go to court either. Many times, they'll just ask you to remove the material they believe is their copyright, and you can decide then whether it's worth fighting over at that point. Just be sure to keep the original project files so that you can edit around copyrighted material if you decide you don't want to battle it out in court and would rather remove it instead.

So, obviously, I'm not a lawyer (and really, fair use only ever gets decided in court), but I would suggest that you look more into the possibility that the work may not be copyrighted and that you can probably make a fair use claim if you're ever questioned about it. Don't feel like you're the bad guy for wanting to use old images. Copyright was created to encourage people to create. You aren't disrupting the market value of those old photographs--you're opening up the market for architectural documentation in media. If using those image helps you tell a story about your work in a way that would be impossible without them, that's a pretty good reason to invoke fair use.