[APG Public List] Copyright question

Jacqueline Wilson jawgen at comcast.net
Wed Nov 25 15:04:56 MST 2009

I am not a copyright lawyer either, but I have done a lot of reading  
lately.  In fact I just wrote a paper on it for a class.  As a New  
Media Studies student, copyright comes up a lot.   However, I am still  
a long way from being an expert.    Fair use is slowly being defined  
in the courts due to many suits filed, but most of the courts do not  
seem to agree on just what is fair use.  I do know that fair use  
includes uses for non-profit educational use and parody (of all things  

According to what I read this past week, the work must be a parody or  
a real creative redesign, photos of an item, even if you change the  
background, are not considered a substantive creative change or else  
used for non-profit educational purposes.   Even the  for-profit  
schools are having a problem with this in regards to their course  
packs.  I just read that these schools were being sued by the  
copyright holder for reproducing material under copyright in course  
packs that students bought (instead of the complete book).  I guess  
publishers were thinking they were losing out on sales to the student!

Another problem to consider with this is:  who actually owns the  
copyright?  If the seller owns the copyright, then if and when you buy  
it makes sure your purchase agreement covers transfer of copyright.   
But if the copyright owner is deceased then who does own the it - the  
heirs of the deceased.  However, if he is not the copyright owner,  
then the way I understand it,  he has no right to sell it, as he is  
not the owner.   Talk about confusion - no wonder not even the judges  
and lawyers can't agree on what the law means!

There is a lot of material out there that was thought to be in the  
public domain - at least until the Sonny Bono Act came along.  This  
created what is called "orphan" works - where no one knows who the  
owner is but the item is still technically protected and you need  
permission to use the material.  This is one the the areas that Google  
Books got into trouble with.  With the Bono Act, many works that were  
set to go into the public domain this year or during the next 5 have  
had the copyright extended for an additional 75 or 95 years (if it is  
owned by a commercial enterprise, like Walt Disney and Mickey Mouse).

I see this as an opportunity for us genealogist and heir searchers:   
finding homes for orphan works!  Maybe we can freelance for Google  
Books to get these orphans released into the public domain or find the  
actual owner and get them some royalties?  Anyone game? RAy?  Alvie?   
I wonder if this means I need to get a private detective license.  I  
will need to check the law for the State of Illinois.

On Nov 25, 2009, at 12:33 PM, Ray Beere Johnson II wrote:

     I AM NOT A LAWYER! The following is my opinion as an informed  
layman interested in IP issues.
     That out of the way, there are at least two points to consider.  
First, _if_ it can be shown that creation of the image involved enough  
creative work to satisfy      the law, the image     . . .

     To be on the safe side, though, unless you simply want to  
transcribe the content for your personal notes, which would _probably_  
fall under fair use (since the content is not being sold, etc.), you  
may want to either enter your own bid on this item, avoid using the  
material at all, or secure permission (which, since you might need to  
contact both the seller - for the image - and the new owner - for the  
content - would be complicated). Since, if you do violate copyright,  
even if the rights holder is unlikely to learn of it or sue, it could  
be an actual - or, at the very least, a seeming - ethical violation,  
you probably want to consider one of these options.

                         Ray Beere Johnson II

--- On Tue, 11/24/09, finleyc at sonoma.edu <finleyc at sonoma.edu> wrote:

> [...] a postcard being advertised because it contains a Christmas  
> stamp
> for the year 1909. [...] The content is what interests me. It was
> written by Lizzie Jones Armstrong to her cousin. This is a family I
> have been researching for the last five years. Can I use an image of
> this postcard without worrying about infringing on copyright?

Jacqueline Wilson
jawgen at comcast.net

"Wilssearch - your service of choice for the indexing challenged  

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