Editors’ Note (SP): This article is divided into six parts. You may link directly to each one of these parts using the chart directly below. In addition, for your reference, the article’s complete Table of Contents appears in section one of the article.

Introduction and Overview / Expiration of Works into the Public Domain / Section 108 Library Exception
Fair Use and Salami / Permissions, Good Faith Efforts and Disclaimers / Pickle Jars and Other Restrictions

Table of Contents VI. Pickle Jars and Other Restrictions A. Restrictions By Owners B. Restrictions By Non-owners

VI. Pickle Jars and Other Restrictions

A. Restrictions by Owners

Copyright is not the only game in town. I think of the work as a pickle, that the owner of a work wants to protect. The owner may want to keep the work (the pickle, if you’re with me on this), bottled up, tightly lidded. There are four main ways to do this.

Physical Ownership – The author puts the work in a vault of other inaccessible place. In a library digitization project, your library has physical ownership, so this is not a problem. So far, so good.

Copyright – We’ve just discussed the copyright regime ad nauseum. Let’s assume you’ve passed out of the copyright hurdles. You’re not done yet.

Licenses and agreements – Here we should take a pause. Did the owner of the work donate or transfer the item with a Deed of Gift? If so, it’s time to read it. This may easily have happened on your predecessor’s watch, but will still bind your institution. A common restriction is, “Researchers must sign agreement not to publish.” Such a restriction could prevent you from putting a work on the web, even if it is in the public domain.⁴³ For a Guide on Deeds of Gift, see the Society of American Archivists.

Encryption – Today owners are increasingly encrypting their works. This category does not apply to the old works in your collection, but is something to consider if your institution is not nonprofit, or if it can go after cost-recovery and sell access to the digital images.

B. Restrictions by Non-owners

Sometimes the restrictions are based on the subjects of the work, particularly people. In a brief effort to identify possible restrictions, consider these:

Rights of Privacy

• public disclosure of private and embarrassing facts about a person
• publication of an item that puts a person in a false light
• appropriation of a person for commercial advantage
• intrusion on a person’s seclusion or property

Right of Publicity

• unauthorized use of a person’s name, picture or likeness for the purposes of trade or advertising that deprives the person of the commercial value of his or her name

Moral Rights

In 1990, the United States enacted the Visual Artists Rights Act (VARA), which gives limited rights to the creator of visual art regarding the attribution and integrity of the work. Even after the work has been lawfully transferred (including a transfer of copyright), the creator maintains rights regarding distortion, mutilation and modification of their work, as specified in 17 U.S.C.§106A.⁴⁴ The definition of “visual art,” in the U.S. however, is quite narrow:

• A ”work of visual art” is – (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. 17 U.S.C. 101 (2001)

Additionally, many states legislatures have moral rights laws. For an excellent discussion of the parameters of VARA and a brief discussion of state moral rights laws, including a list of states, see the National Endowment for the Arts’ guide to VARA and its sidebars.⁴⁵

Native American Graves Protection and Repatriation Act of 1990 (NAGPRA)

• rights and control of Native American cultural items belong to the originating tribe
• before digitizing an image, contact the proper tribe for permission.
• Missouri Digitization Planning Project: Copyright and Intellectual Property Issues at http://www.virtuallymissouri.org/guidelines/copyright_rev2.pdf suggests the following links:

Bureau of Reclamation at http://www.usbr.gov/laws/nagpra.html

National NAGPRA Database at http://www.cast.uark.edu/other/nps/nagpra/nagpra.html

ArchNet at http://archnet.uconn.edu/topical/crm/usdocs/nagpra14.htm

Family Education Rights and Protection Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99)

• Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

[cc] 2002 Mary Minow Counter-Copyright (See Copyright’s Commons)

Footnotes

⁴³It should be noted that its not completely settled whether contracts, that are governed by state law, preempt federal copyright law. The Copyright Act contains a section specifically nullifying state laws that may grant rights that are equivalent to any of the exclusive rights granted by copyright law. 17 U.S.C. 301. The leading case on the issue, up to this point however, has upheld a license agreement that was more restrictive than copyright law. See ProCD Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), in which a graduate student purchased a CD-ROM directory with a shrink-wrap license disallowing commercial use. He posted the directory information to the Net. The Court ruled that although the information was factual, and not protected by copyright, he had breached the shrink-wrap contract. This and similar decisions have been criticized in law review articles such as e.g., Dennis S. Karjala, Federal Preemption of Shrinkwrap and On-Line Licenses, 22 U. Dayton L. Rev. 511 (1997). On the other hand, a contractual restriction on a biographer’s use of a manuscript found in a library will not always override fair use. The Second Circuit found that “[t]o read [the restriction] as absolutely forbidding any quotation, no matter how limited or appropriate, would severely inhibit proper, lawful scholarly use and place an arbitrary power in the hands of the copyright owner going far beyond the protection provided by law.” Wright v. Warner Books, Inc., 953 F.2d 731, 741 (2d Cir. 1991). For an extensive discussion of scholarly fair use of unpublished works, see Kenneth Crews, Fair Use of Unpublished Works: Burdens of Proof and Integrity of Copyright, 37 Ariz. St. L. J. 1, 46 (Spring 1999).

⁴⁴See 17 U.S.C. 106A (2001).

⁴⁵Cynthia Esworthy, NEA Office of General Counsel, “From Monty Python to Leona Hemsly: A Guide to the Visual Artists Rights Act” (1997) at http://arts.endow.gov/artforms/Visualarts/VARA.html (visited May 26, 2002).