Owning the Past? The Digital Historian’s Guide to Copyright and Intellectual Property

Images, Music, and Movies

he rules of fair use and copyright apply equally to nontextual materials like images, music, speeches, and moving pictures. But some distinctive issues arise. For images, the most complicated problem involves art and photographs that are in the public domain but are not publicly available. A photograph or work of art may have entered the public domain, but you can’t copy it if you don’t have access to the original. Because the original is often private property, the owner is not obligated to give you access to make a copy.51 Thus you generally need to request a copy from the museum and they will often insist that you sign a license agreement that restricts how you can use the copy.

But can you use a reproduction obtained from a source other than the museum? Can you scan a copy of an artwork reproduced in a book and post it on your website? That turns out to be one of the most disputed, currently contentious issues in copyright. In the late 1990s, it became the subject of a court case that pitted the Bridgeman Art Library against the software company Corel. Bridgeman had paid for “exclusive rights” to license photographs of hundreds of public domain art works from major museums. Corel, however, took 150 images from the Bridgeman Collection and included them on a clip-art CD-ROM and made them available as inexpensive downloads from their website. Sounds like theft? In November 1998, U.S. District Court Judge Lewis A. Kaplan said “no.” He ruled that the Bridgeman photos were not entitled to copyright protection. Bridgeman, he said, had sought “to create ‘slavish copies’ of public domain works of art. Though it may be assumed that this required both skill and effort, there was no spark of originality. . . . Copyright is not available in these circumstances.” The Bridgeman photos were no more entitled to copyright than a photocopy.52

Some have concluded on the basis of Judge Kaplan’s decision that any straightforward photos of public domain art can now be used freely, that you can, for example, scan them from art books and put them up on your website. Others advise caution. The decision does not apply to photos that go beyond “slavish” copies—ones that might highlight some particular feature. It also only applies to two-dimensional artworks because three-dimensional works like sculptures require many more decisions by the photographer. More important, Kaplan’s decision reflects only one federal district court in New York; until a Court of Appeals or the U.S. Supreme Court decides a similar case, it will not be more widely binding. Yet even those like Stephen Fishman, who warn that “you could get sued for copyright infringement” for copying a reproduction of public domain art without permission, also concede that “you probably have a very good chance of winning.”53 Of course, you would probably prefer to do history than fight a lawsuit.

Some museums have responded to the Bridgeman case by having those who purchase permission to use their photos sign a “license agreement” limiting their use of it. But some lawyers wonder whether they can legally enforce these restrictions on those who obtain the images from a third party such as a college library.

Music poses significant difficulties both because the rights are more complicated and because the rights holders are often the most vigilant about enforcing copyrights and the greediest in seeking payments. Vanderbilt professor Cecelia Tichi spent $9,000 in permission fees just to quote lyrics in her book on country music. The $9,000 did not cover all of her costs because she also included a CD with her book, which required paying for the rights to use actual recordings.54 These sound recording rights are entirely different from rights to the underlying words or composition. To make matters worse, the laws covering them are also different.

Copyright in words and music follow the same rules as copyright in books, articles, and photographs. But until February 15, 1972, federal copyright laws did not protect sound recordings. At first blush, this sounds great for those who want to set up a website that explores history through song. Doesn’t this mean, for example, you can post any recording based on musical works published before 1923 or otherwise in the public domain? Unfortunately, no. Because there was no federal copyright law for recorded music before 1972, almost every state passed laws that criminalized the sale and distribution of sound recordings without permission. These laws did not have the expiration dates built into the federal copyright statutes. And, although federal law supersedes state law, the 1976 copyright act exempted pre-1972 sound recordings from the federal law for many decades. Until 2067 (thanks to this law and the subsequent CTEA), these earlier sound recordings will enjoy the protection they had won under state laws. Even one website that encourages aggressive use of the public domain offers the following “Rule of Thumb”: “There are NO sound recordings in the Public Domain.”55

As a result, history websites may not be able to make any significant use of the vast corpus of American recorded sound until late in the twenty-first century—a stunning loss to historical scholarship and teaching. There are a few ways around this, however. The first is a bit speculative and has to do with the difference between the earlier state laws and the current federal law and its impact on compositions published in 1922 or earlier. According to Georgia Harper from the University of Texas, “state law causes of action center on unfair competition for the most part. That is unlikely to affect archival and research activities.” In other words, it may be that placing an early sound recording on an educational website would not be subject to any legal action.

If you are not willing to take a risk on this interpretation, you could still record the music yourself if the music (but not the recordings) is in the public domain. We did that with the music of the French Revolution for our website, Liberty, Equality, Fraternity: Exploring the French Revolution, producing our own version of “La Marseillaise” rather than paying to use an existing recording. Another safe strategy is to use U.S. government sound recordings. The Library of Congress, for example, has many recordings from 1930s-era arts projects as well as Edison company recordings, which have been dedicated to the public domain.

Finally, you can try to purchase rights to use a recording. But it may cost you dearly. For our CD-ROM on U.S. History from 1914 to 1946, we spent about $16,000 to use twenty-seven songs and that required time-consuming negotiations as well as dropping some songs because of the price. We also learned about the “most favored nation” clauses that most music companies put in their contracts. These provisions require you to pay them the highest price that anyone else gets. Thus, if you give in to one particularly greedy company, you have to pay everyone else the same rate of payment. In any case, most of these companies would not have agreed to making the songs available on the web at any price. And remember that even if you obtain rights to the sound recording, you still need to get the rights to the musical composition, which generally come from a different set of rights holders and itself can combine rights to both lyrics and the music itself. Further complicating matters, whether you stream the song or allow it to be downloaded will affect whether you need performance rights (streaming) or reproduction rights (download).

In addition, though many small and obscure book publishers have disappeared and hence can’t claim rights and royalties, major corporations, which aggressively enforce their rights, have taken over many small music companies. Okeh Records, which pioneered the “race” record market with the first recordings by African American blues singers in the early 1920s, was later taken over by the Columbia Phonograph Company, which was, in turn, taken over by the American Record Corporation, and then the Columbia Broadcasting System, and most recently, Sony. Thus, if you want to make use of now obscure blues songs from the 1920s originally released by Okeh, you will find yourself negotiating with Sony Music Entertainment Inc. and sending your payments to a multinational conglomerate, not the heirs of the original bluesmen. Still, in terms of the recording (as opposed to the musical composition), you may find some protection in the more limited scope of the applicable state laws.56

Some music sites such as the Red Hot Jazz Archive take the position that they are broadcasting music rather than offering it for download by presenting it only in a streaming format like RealAudio. “I see the archive,” writes Scott Alexander, the creator of Red Hot Jazz, “as a radio station of sorts, and that I am just broadcasting these works, not distributing them.” So far, no one has challenged Alexander’s “broadcasts,” but he acknowledges that he is operating in a “gray area of law.” “I’ve talked to lawyers about it and paid them lots of money, and they gave me no answers,” he notes. But, according to industry lawyer Linda Tadic, the law is black and white, and what Alexander is doing involves “reproduction and distribution” and not just “public performance.” But Alexander probably has avoided legal challenges because he is presenting old music, much of it out of active distribution, and because he maintains a relatively low profile and avoids publicizing his site.57

Another ambiguity about online multimedia involves fair use, especially the third factor in the fair use test—the amount of the work being used. Because scholars have long quoted from textual works by way of criticism and commentary, the right to do so is well established. Although the specific length of what is permissible is subject to dispute and individual interpretation, the broad parameters are clear. You can place a paragraph of a copyrighted novel online; you surely can’t place an entire chapter (except on a site that is limited to students in your class). But the digital environment makes it much easier to “quote” images and allows you to quote sounds and moving pictures for the first time. But how much can you quote? Because most recorded songs are short, it is probably difficult to offer a short enough excerpt to qualify. But a case can be made for very brief selections.58

The problem is more vexing for film scholars who even before the emergence of the web had struggled over whether they could use film stills without permission. The major studios charge huge fees for these “rights.” Historian Mark Carnes reports that permission charges exceeded $40,000 for the stills in his book Past Imperfect: History According to the Movies. Even worse, the studios may use permissions as a form of censorship. Warner Brothers refused permission to use stills because Past Imperfect “treated negatively” several Warner films. The Society for Cinema Studies (SCS) argues that Carnes should not even have asked for permission. Its ad hoc “Committee on Fair Usage Publication of Film Stills” concluded in 1993 that although “the legal situation concerning the reproduction of film frames and publicity stills remains undetermined, … a long-standing common practice has been established that could be drawn upon in arguing any case for the application of fair-use guidelines to cinematic images.” Moreover, they argue that those like Carnes who seek and pay for permission to use stills undercut the fair use precedent. “I would urge my colleagues in the field of history to avoid paying unnecessary permission fees for film images,” Kristin Thompson, the author of the SCS report, wrote in response to Carnes, “as it sets a precedent that endangers the ability of other scholars to use illustrations vital to their work.” 59

If you can include film stills on your website, what about film clips? Can online historians “quote” from the vast film record of the twentieth century? Film studios do not answer with one voice on this question. When we contacted Universal Studios about using a brief clip of All Quiet on the Western Front (1930) for an educational module about cinematic portrayals of World War I, the representative explained that the company charges a flat rate of $1,500 per fifteen seconds of footage. That rate does not vary based on the site’s mission or purpose. Paramount, whom we asked about Saving Private Ryan (1998), said they would not license it for use on the web at any price. And Fox wanted us to pay $100 before it would tell us what a clip would cost. Warner Brothers, by contrast, said we could freely use three-minute clips from The Dawn Patrol (1938) and Casablanca (1942) as long as we used no more than two per film and streamed the clips rather than made them available for download because streaming limits the possibility of further circulation of the clips.60

We think that Warner Brothers’ policy is good copyright citizenship, in accord with our understanding of fair use, and good for the legacies of their films. If you mounted a commercial website (that sold ads or required a fee to use) called “Great Moments in American Film” and included three-minute clips of five hundred American films, it would be difficult to meet the fair use standard. But let’s say instead you developed a free, educational website on “Hollywood’s View of American History” and included three-minute clips along with editorial commentary that showed how different films interpreted a key moment in U.S. history (e.g., Reconstruction in Gone with the Wind and the American Revolution in Drums Along the Mohawk). That would seem precisely in line with fair use. (Avoiding the most famous moments in a film also helps you meet the fair use test of “amount and substantiality.”) A congressional report from the mid-1970s even acknowledges that fair use might apply to “the performance of a short excerpt from a motion picture for criticism or comment.”61

The Journal of American History has embraced this perspective on fair use in its website Teaching the JAH, which explores how instructors can use scholarly articles from the journal in their classrooms. One section focuses on the 1943 film Mission to Moscow, a startlingly pro-Soviet film that served U.S. wartime diplomatic goals. The site includes a number of primary sources related to the film, including four short excerpts from the film itself. You could not readily teach about the film’s impact without showing a few excerpts.

Is the Journal of American History engaging in fair use brinkmanship? The noncommercial and educational purposes of the site and the brevity of the clips work in their favor. Also weighing toward fair use is that the film is not currently marketed. But surely the most important reason why the JAH probably needn’t worry about a lawsuit is the film’s lack of economic value to its owner. Mission to Moscow did poorly even in its original run sixty years ago; a new release is unlikely. Would it be worth a lawsuit to defend such a “property”? On the other hand, the company might be much more likely to go to court against an identical use of Gone with the Wind, even though most of the same factors (except lack of current availability) would weigh in the JAH’s favor. The JAH did not formally request permission, and in our opinion they did not need to.

51 Fishman, The Public Domain, 5/6. If you walk into a museum and take a photograph of a painting created before 1923, you own that photograph and can use it as you like. Some museums argue, however, that your admission ticket is a contract that can include a clause restricting what you can do with a photograph. See “NINCH Copyright Town Meeting: Chicago, March 3, 2001,” NINCH, Meeting Report, 2001, ↪link 7.51.

52 Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), ↪link 7.52. If the book was published before 1923, you are probably in the clear in any case.

53 Fishman, The Public Domain, 5/31-3. University of Oregon Professor Christine Sundt describes this as a question “desperately seeking” an answer: “If a work of art is clearly in the public domain—let’s imagine for the moment a reasonably well-known (e.g., published) seventeenth-century painting by an Italian artist—but the museum owning the canvas requires that a fee be paid before the work can be illustrated in a publication, could the author ignore the requirement and bypass the museum if she already possesses a good quality illustration without publication rights?” Christine Sundt, “Permission Denied . . . Questions Desperately Seeking Answers” (paper presented at the Digital Publishing: A Practical Guide to the Problem of Intellectual Property Rights in the Electronic Environment for Artists, Museums, Authors, Publishers, Readers and Users, College Art Association, New York, N.Y., 2003), ↪link 7.53a. Kathleen Butler argues forcefully, however, that “photographic and digital reproductions are not original and therefore not copyrightable” in “The Originality Requirement: Preventing the Copy Photography End-Run Around the Public Domain” (paper presented at the NINCH Copyright Town Meeting: The Public Domain: Implied, Inferred and in Fact, San Francisco, 5 April 2000), ↪link 7.53b. But Dave Green of the Corbis legal department argued at the same town meeting that the Bridgeman case was misleading and it was only a “narrow holding.” Keep in mind that generally speaking a work of art like a painting would be treated like an unpublished manuscript in determining whether or not it was in the public domain.

54 Stowe, “Just Do It,”33.

55 Fishman, The Public Domain, 4/44-7; Music Library Association, “What Impact Do Differences Between U.S. and European Copyright Laws Have on Peer to Peer (P2P) File Sharing?” Copyright for Music Librarians, ↪link 7.55a; Robert Clarida, “Who Owns Pre-1972 Sound Recordings?” Greater Philadelphia Old Time Radio Club, ↪link 7.55b; Public Domain Information Project, “Sound Recordings,” PD Info: Public Domain Music, 2003, ↪link 7.55c; Georgia Harper, “Copyright Law and Audio Preservation” (paper presented at Sound Savings: Preserving Audio Collections, Austin, Texas, 24–26 July 2003), ↪link 7.55d. A more confusing question involves whether music also benefits from the exemption granted in the CTEA for works not in commercial exploitation and in the last twenty years of their copyright. Harper points out that the law is ambiguous and poorly drafted on this point.

56 “Okeh Records,” Wikipedia, ↪link 7.56a; David Edwards and Mike Callahan, Okeh Album Discography,link 7.56b.

57 “Information About Red Hot Archive,” The Red Hot Jazz Archivelink 7.57a; Scott Alexander, interview, 10 February 2004; Linda Tadic, “Intellectual Property Versus the Digital Environment: Rights Clearance,” NINCH, Town Meeting Report, 2001 , ↪link 7.57b. When Charles Haddix set up Club Kaycee, ↪link 7.57c, a website that “serves up the sights and sounds of the Golden Age of Kansas City Jazz,” the Harry Fox Agency waived any claims and ASCAP agreed to charge a flat annual fee as long as they didn’t provide any music produced after 1970. Haddix told us that the deal he got with ASCAP wouldn’t be possible now: “We kind of got into it under different circumstances than today. There was no file sharing at the time. It was not a big issue. Now they wouldn’t have cooperated with us, not in this environment.” Haddix, interview, 12 February 2004. Even so, Haddix may not be entirely covered because he would need the performance rights for the sound recording, which need to come from the record company, and ASCAP provides only the performance rights for musical work. As with Red Hot Jazz, record companies are less likely to pursue Club Kaycee because it is not presenting recordings that are currently being sold. The royalty rates for webcasting of music have been the subject of much contention, although few historians are likely to be affected by this issue. See ↪link 7.57d.

58 These issues have been litigated in some of the lawsuits over “sampling.” For example, a court ruled in 2003 that a six-second flute sample used by the Beastie Boys was permissible. Stan Soocher, “Song Sampling Is Found De Minimis,” Entertainment Law & Finance (8 December 2003).

59 Mark Carnes, “Beyond Words: Reviewing Motion Pictures,” Perspectives (May–June 1996), ↪link 7.59a; Kristin Thompson, “Fair Usage Publication of Film Stills: Report of the Ad Hoc Committee of the Society for Cinema Studies,” Cinema Journal 32.2 (Winter 1993),” 3–20, ↪link 7.59b; Kristin Thompson to Editor, Perspectives (October 1996), 19. For a number of egregious cases of using permissions as a form of censorship, see Stowe, “Just Do It,” 34–35. Two court cases do suggest possible fair uses in music. In a political ad, a candidate used fifteen seconds of his opponent’s campaign jingle. The opponent sued: Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978). The judge ruled it was fair use because only a small fraction of the song was used and the purpose of using it was to further political debate. In Manhattan, a TV crew shot footage of an Italian festival, and their taping included a band’s performance of “Dove sta Zaza.” The ensuing news broadcast included a portion of the song. (Italian Book Corp, v. American Broadcasting Co., 458 F. Supp. 65 (S.D. N.Y. 1978).) The judge ruled that this was fair use because only a small part of the song was used, the song was relevant to the news event, and the broadcast did not damage the composer or the market for the work. See “Summaries of Fair Use Cases,” Copyright & Fair Use: Stanford University Libraries, ↪link 7.59c. Carnes rejects Thompson’s argument and says that he checked with top executives and editors at leading commercial publishers and reports that “none said that he or she would publish a book with film stills and enlargements without first acquiring permission from the studios.” Mark C. Carnes to Editor, Perspectives (October 1996), 35.

60 Larry McCalister, Executive Director, Licensing, Paramount, to Roy Rosenzweig, 12 February 2004; Julie Heath to Roy Rosenzweig, 2 December 2003. (Information on Fox is from recorded message on the Fox Still and Clip Licensing Department’s telephone line.)

61 Thompson, “Fair Usage Publication of Film Stills,” 5; Robert Clarida in “NINCH Copyright Town Meeting 2003.” Whether an excerpt is “at the heart of the work” can be an important determinant of fair use. For example, a court ruled in 1982 that a one-minute-and-fifteen-second clip from a Chaplin film that was used in a television news report was not fair use because it was part of the “heart” of the film. Thus a compilation of “great moments” in film would be more likely to transgress fair use than a compilation that showed how films interpret American history. See “Summaries of Fair Use Cases;” Minow, “How I Learned to Love FAIR USE.” Some relatively recent court cases suggest that the using brief film clips is fair use.