Copyright/Intellectual Property

How Copyright Came to the Library of Congress

12 November 2016
Comments Off on How Copyright Came to the Library of Congress

From Mostly IP History:

As most people who dabble in copyright know, copyright in America has generally consisted of three parts: Notice, Registration, and Deposit.  The notice is generally an act taken by the author or his/her assignee (generally the publisher)to provide notice of copyright – in the very beginning this actually required publishing a notice in a newspaper, but mostly all that has been required is placing a copyright notice on the work.  Registration is of course the act of registering the work for copyright with the statutorily-designated register.  Deposit is the act of depositing one or more copies pursuant to the statute.

From 1790 to 1846, Copyrighted works were registered with the local federal district court, and the registration was only perfected when copies were deposited with the Secretary of State in Washington DC – at first directly by the author/publisher, and later by the clerk of the District Court in bulk.  However, in 1846 the act establishing the Smithsonian Institution contained a provision requiring deposit of copies registered for copyright with both the new Smithsonian and the Library of Congress.

. . . .

However, the Smithsonian Institution was never particularly happy with being a depository for copyright books, and in 1859, with the acquiescence of the Librarian of Congress, Congress shifted the venue for copyright deposit to the Patent Office.  And even as these changes for copyright deposit ensued, copyright registration had steadfastly remained with the local district courts.

. . . .

In 1870 the only omnibus revision of intellectual property law in American history was passed, and one of its changes was the transfer of all copyright registration and deposit activities to the Library of Congress.

Link to the rest at Mostly IP History

Sole and Despotic Dominion

7 November 2016

From Locus Online:

William Blackstone is a towering legal authority, whose 18th century Commentaries on the Laws of England are still studied today. Blackstone was big on private property as a cure for humanity’s woes. In Commentaries, he wrote one of the most famous definitions of private property in English-language history:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

The term ‘‘intellectual property’’ is a novelty. Until the 1970s, it was very unusual to hear it uttered, especially in legal contexts. As a term of art, it obscures more than it illuminates: when I say ‘‘you have violated my intellectual property,’’ you have to guess whether I’m upset about copyrights, or trademarks, or patents, or database rights, or medical research data rights, or broadcast rights, or trade secrets, or whether I’m using the term colloquially to mean, ‘‘You’ve done something with an idea I think of as ‘mine,’ for some reason, that I object to’’ (think of comedians who object to other comedians telling similar jokes, something that violates no law but is still often called ‘‘stealing intellectual property’’).

Before IP, the rights were spoken of in the specific: ‘‘you have violated my trademarks,’’ ‘‘you have infringed my patents,’’ and so on. If they were classed together, as sometimes happened with rights of creators (as opposed to corporations), they were called ‘‘authors’ monopolies,’’ a term that reflected their aberrant status in US law, as they were legally protected, government-granted monopolies over who could say or publish certain combinations of words – an idea that’s hard to square with the US Constitution’s First Amendment: ‘‘Congress shall make no law … abridging the freedom of speech, or of the press.’’

. . . .

‘‘Author’s monopolies’’ didn’t become ‘‘intellectual property’’ by accident: the linguistic shift was engineered by the entertainment industry, who wanted to hitch their wagon to Blackstone and his ‘‘sole and despotic dominion.’’ The trick of calling regulatory monopolies ‘‘property’’ upended the idea of real, tangible property. Is a book you buy and treasure something over which you exercise ‘‘sole and despotic dominion?’’ Well, yes and no. You share that dominion with the author (or perhaps the corporation who publishes the author, or, these days, the author’s corporation). You can read the book to your kid at night, and you can read it to yourself on the bus, but you can’t read it aloud on the bus, or make copies of it for your kid.

Link to the rest at Locus Online and thanks to A for the tip.

PG says the OP is not always accurate with respect to its description of laws relating to intellectual property, but it is interesting.

Unprecedented Removal of Register of Copyrights Causes Consternation in Copyright Community

25 October 2016

From The Authors Guild:

Maria Pallante, the Register of Copyrights and Director of the United States Copyright Office, submitted her resignation today, after being abruptly removed and transferred from office last Friday by Dr. Carla Hayden, the new Librarian of Congress, who was sworn in just weeks ago. According to a statement issued by the Library of Congress, Hayden transferred Pallante to a newly created non-managerial position within the Library, Senior Advisor for Digital Strategy. Karyn Temple Claggett, an Associate Register, was appointed Acting Register of Copyrights, effective immediately.

We are disappointed to see Pallante go. She was a devoted leader of the Copyright Office, launching several major initiatives—including a full review of the Copyright Act to bring it into the 21st Century, and the modernization of the Copyright Office to better serve the evolving needs of digital-era Copyright Office constituents—initiatives that took great vision and courage. She also oversaw a full review of and set of recommendations for bringing the Office’s technology into the 21st Century; she shored up copyright registration practices and created a comprehensive online guide to registration and recordation—the 2014 Compendium of U.S. Copyright Office Practices, Third Edition—which was the first wholesale revision of the Compendium in 30 years.

. . . .

In another major initiative (which the Authors Guild has adopted as part of our 2016 Legislative Priorities), Pallante led the Office in a comprehensive study and then a recommendation to create a small claims tribunal, which would allow authors and other creators to bring small infringement claims inexpensively, without having to hire a lawyer. Congressmen Hakeem Jeffries (D-NY) and Tom Marino (R-PA) have already introduced legislation to implement the recommendations, and Congresswoman Judy Chu (D-CA) has indicated that she might as well.

During her tenure, Pallante displayed an uncommon willingness to comprehend and to balance the positions of all copyright stakeholders. Especially important to the Guild was Pallante’s conviction that ultimately the creative industries cannot thrive without respect for individual creators. Under Pallante, the Copyright Office operated under and embodied the principle that copyright exists to benefit the public by incentivizing new works of authorship, and that the rights of individual creators need be respected to ensure that robust creative ecosystems can flourish through new digital platforms.

. . . .

The timing of Pallante’s removal is less than ideal, especially in light of her leadership on issues of copyright reform and the significant pending projects. Specifically, at the time of Pallante’s removal, the Office was actively working towards reports on:

  • Moral Rights; Revising the Copyright Exceptions for Libraries and Archives; Mandatory Deposit of Online-Only Books; Copyright Office IT Modernization; Section 512 of the DMCA; and Section 1201 of the DMCA (Circumvention of Technological Protection Measures), among other issues.

It has been the Authors Guild’s long held belief that the head of the Copyright Office, not the Librarian, should be responsible for issuing copyright policy. The Copyright Act currently states that the Register of Copyright is subject to the direction and supervision of the Librarian of Congress and that regulations established by the Copyright Office are subject to the Librarian’s approval. This is required by the fact that the Copyright Office is a division of the Library of Congress (for historical reasons—the Library wanted the copyright deposits), and the Register is not a presidential appointee. This is why it has been a long-standing priority of the Authors Guild for Congress to modernize the Copyright Office to give it greater political, budget and IT independence from the Library.

. . . .

We understand that a search committee to fill the Register’s position is being formed. The Authors Guild will request that creators be represented on that committee.

Link to the rest at The Authors Guild and thanks to Jacqueline for the tip.

‘World first’ virtual reality deal struck for YA trilogy

24 October 2016

From The Bookseller:

Interactive entertainment company To Play For has acquired virtual reality (VR) rights to the Fallow Trilogy by Amy Lankester-Owen, in the first deal for the books.

Sarah Such at Sarah Such Literary Agency called the deal “a world first, where a book series has been licensed specifically for a VR production”. To Play For will adapt the text to enable users to see directly into the minds of protagonists Lori and Rem.

. . . .

“Amy’s series has exactly the sort of characters and story worlds that we are looking to develop interactively. The books’ ‘mind-fusing’ is a perfect match for VR technology.”

Link to the rest at The Bookseller

Most UK authors’ annual incomes still well below minimum wage, survey shows

20 October 2016

From The Guardian:

As publishing prepares for the Christmas rush, with a blizzard of titles due for launch this week on “Super Thursday”, a European commission report has shown that life is less than super for many authors in the UK, with average annual incomes for writers languishing at £12,500.

This figure is just 55% of average earnings in the UK, coming in below the minimum wage for a full-time job at £18,000 and well below the Joseph Rowntree Foundation’s minimum income standard of £17,100.

In an industry that is becoming increasingly unequal, those at the bottom of the income distribution continue to struggle. Only half of the 317 UK authors who responded to the survey said writing was their main source of income, with respondents who offered a figure reporting total earnings from their latest book averaging at £7,000.

The survey confirms a picture of steady decline in author incomes that was revealed in a 2015 survey published by the Society of Authors (SoA). While the publishing industry has seen revenues begin to rise, with sales up 1.3% in 2015 to £4.4bn, median incomes for authors (a measure that better reflects the experience of most authors) were down 29% in real terms in the last decade.

According to the writer Lucinda Hawksley, who sits on the SoA management committee, initiatives to make life fairer for authors are “utterly necessary”.

“I know from personal experience how difficult it is to be creative when panicking about the state of one’s finances and worrying about the rent [and] trying to meet a publisher’s demands,” Hawksley said. “My books have been well-received and plentiful, which might be assumed to bring in a healthy income, but it is impossible to support myself by writing alone.”

. . . .

A comparison of the legal protections enjoyed by writers across the continent put the UK and Ireland at the bottom of the ranking, with the UK also performing poorly in a measure of authors’ power in collective bargaining. . . . [A] comparison between two countries with the highest number of responses, the UK and Germany, could suggest “that a more protective legal framework may have a positive effect for the authors’ average income”.

In a world where the digital revolution is opening up a bewildering array of new ways for publishers to make money out of writers’ work, the report argues for written contracts that specify where and how an author’s work is to be used. It adds that rights should be limited to uses that are known or foreseeable.

. . . .

“This detailed study shows, yet again, that authors are disadvantaged by an unfair playing field,” Solomon said, “and conclusively demonstrates that simple legal remedies such as controlling the term and scope of contracts can have a positive effect on authors’ earnings, which remain woefully low.”

Link to the rest at The Guardian and thanks to Dave and several others for the tip.

Harry Shearer Files $125 Million ‘Spinal Tap’ Fraud Suit, Copyright Termination

19 October 2016

From The Hollywood Reporter:

For a Hollywood accounting case, this one is an 11.

Harry Shearer has launched a $125 million fraud and contract-breach lawsuit against Vivendi and StudioCanal over the 1984 rockumentary classic This Is Spinal Tap. The complaint, filed Monday in California federal court, is packed with enough nuggets to instantly make this a must-watch “Hollywood accounting” case. Through the lawsuit, Shearer also reveals he is attempting to claw back rights to the film and its continually popular soundtrack.

Shearer, perhaps best known for the 23 characters he voices on The Simpsons, co-created the semi-fake band Spinal Tap in the 1970s with Christopher Guest and Michael McKean. The film, directed by Rob Reiner and featuring Shearer as bassist Derek Smalls, was produced and released by Embassy Pictures. After a series of transactions, rights to Spinal Tap landed in the hands of Vivendi, the French conglomerate that once had the ambitious goal of becoming one of the largest studios in the industry.

Despite the film’s legacy and Spinal Tap’s enduring success as an actual band able to sell out arenas, Shearer’s company Century of Progress Productions alleges that the four lead creatives have received just $81 in merchandising income and $98 in musical sales income in the past three decades from the franchise.

. . . .

“The accounting between the Vivendi subsidiaries is not at arm’s-length, is anti-competitive, and deprives the TIST creators of a fair reward for their services,” states the complaint.

With other accounting improprieties alleged, such as undocumented marketing expenses and improper deductions, Shearer’s lawsuit references the Copyright Act’s termination provisions, which allow authors to cancel grants and regain rights after 35 years.

“Particularly given that Vivendi has offset fraudulent accounting for revenues from music copyrights against equally dubious revenue streams for film and merchandising rights also controlled by Vivendi subsidiaries, Shearer is concurrently filing notices of copyright termination for publishing and recording rights in Spinal Tap songs he co-wrote and co-recorded, as well as in the film itself,” states the complaint.

That means that Vivendi would potentially lose rights to This Is Spinal Tap in 2019. Copyright termination has been a big subject in the music industry, but is only beginning to impact the film business.

. . . .

Shearer’s company says that in 2013, in anticipation of the film’s 30th anniversary, it commissioned a study of accounting statements and revenue streams that “first discovered that Vivendi had engaged in a pattern of anti-competitive and unfair business practices, had abandoned enforcement of valuable TIST rights, and had willfully concealed and manipulated years of accountings to retain monies due and owing to Plaintiff.”

Link to the rest at The Hollywood Reporter and thanks to Meryl for the tip.

Google and Amazon Leverage Copyright Loophole to Use Songs Without Paying Songwriters

17 October 2016

From Music Technology Policy:

Two vastly wealthy multinational media companies are exploiting a copyright law loophole to sell the world’s music without paying royalties to the world’s songwriters on millions–millions–of songs. Why? Because Google and Amazon–purveyors of Big Data–claim they “can’t” find contact information for song owners in a Google search. So these two companies are exploiting songs without paying royalties by filing millions of notices with the Copyright Office at a huge cost in filing fees that only megacorporations can afford–an unprecedented land grab in nature, size and scope.

That’s right–Google and Amazon are falling over themselves to use their market power to stiff songwriters yet again.

. . . .

I happened to speak to a representative of one of the mass NOI filing companies after a recent panel in Los Angeles who assured me that the reason that his clients were filing these NOIs was not because they did not want to pay royalties but because they were so worried about liability from a “Jeff Price jihad” and that his clients fully intended to pay royalties retroactively once the song owner became known unlike the record companies who are “thieves”.   I believe that he believes that his client believes that they’re just trying to avoid being sued for not having the rights, but humor this unbeliever.  My bet would be that getting that retroactive payment will take the effort worthy of an act of Congress.

. . . .

Songwriters are the most regulated workers in America. The government sets wage and price controls on most uses of songs and practically everything else about a songwriter’s business–except fulfilling government’s basic role of keeping them safe from piracy and multinational monopolists gaming the system. Congress needs to stop this latest scam.

The latest loophole that Google and Amazon are hacking is uniquely American–the compulsory license for songs. No other country has one. Most songwriters would prefer that the U.S. repeal this legacy anachronism from 1909 that keeps the government’s boot on their throats.

In order to get the government’s license, services only need notify the songwriter (or their publisher) that the service intends to use the song under the compulsory license. Of course, sending this notice of their intention to use the song (called an “NOI”) requires knowing who to send it to, and that is the “hack” that Google and Amazon are exploiting now. Others services surely will follow their market leadership if Congress fails to act.

The hack uses market power to manipulate a loophole in how those NOIs are sent. Common sense tells you that to send a notice, you must know who to send it to, even for a song. But does common sense also tell you that if you don’t know, the law should allow you to exploit the songs without compensation? Particularly if you’re the biggest purveyor of data in human history?

The legacy compulsory license allows services to exploit songs if they decide they can’t find the songwriter–and not pay royalties until the songwriter finds them.

Link to the rest at Music Technology Policy and thanks to Julia for the tip.

Local media mogul embroiled in foodie fight over alleged plagiarism

13 October 2016

From The Ottawa Citizen:

An Ottawa food empire has left a bitter taste in the mouth of a cookbook author in Japan who alleges it stole and served up her recipes.

The foodie fight over soy-pickled eggs and sashimi on hot rice has turned blistering.

Ottawa entrepreneur Chris Knight vehemently denies any infringement and says Gusto Worldwide Media will file a lawsuit and an injunction stopping Nancy Singleton Hachisu from attacking its “wonderful” reputation on social media.

. . . .

Hachisu lives in rural Japan but says she was strolling through the Gourmand World Cookbook Awards in Yantai, China, in May when she picked up the winning One World Kitchen. It’s a 2015 collection of recipes from the Gusto TV show, penned by Knight and featuring recipes from Argentina, Italy, India, Thailand and Japan.

She flipped open the Japanese section — and saw “smashed cucumber pickles with garlic,” a title she says she had coined.

“OK, this happens,” thought the author of 2012’s Japanese Farm Food, which won a Gourmand Award and has a back-cover blurb from famed farm-to-table pioneer Alice Waters. Hachisu, a Californian who married a Japanese organic farmer, read on.

“More of my own words jumped off  of the page,” Hachisu. “My exact words and unique turn of phrase had been copy-pasted into this … cookbook. Shaking, I flipped through more pages and discovered five other recipes that had been plagiarized.”

She did a side-by-side comparison of recipes that appear in her book, Knight’s, and on Gusto TV’s website.

“Lay the cucumbers on a large cutting board and bang them gently but firmly with a Japanese pestle (surikogi) or rolling pin to crack (and slightly smash) the surface of the cucumbers,” instructs Hachisu’s book. “Break into rough chunks with your hands and drop into a freezer-style gallon-sized resealable plastic bag.”

“Lay the cucumbers on a large cutting board, and bang them gently but firmly with a Japanese pestle or rolling pin to slightly smash the cucumbers, which will form cracks in the surface,” reads Knight’s. “Break into rough chunks with your hands, and drop into a large resealable freezer bag.”

Hachisu’s recipe for eggs pickled in soy sauce tell the cook that “when the eggs are cool, gently crack by rapping and rolling on a cutting board.”

Knight writes, “When the eggs are cool, gently crack the shells by rapping and rolling the eggs on a cutting board.”

. . . .

Months later, Hachisu now says she’s seeking a total of $30,000 in compensatory damages, pursuing “the principle of the matter” on her own.

But according to Gusto World Media, it will be they who file a lawsuit in Ontario shortly.

“To avoid any confusion, I wish to be clear, the One World Kitchen cookbook does not infringe any alleged rights of Ms. Hachisu,” Knight, the author of a string of cookbooks along with his work on television, said in a statement.

Link to the rest at The Ottawa Citizen and thanks to Tudor for the tip.

PG reminds one and all that he is not an expert on Canadian copyright law.

In the US, the general rule is that a simple recipe cannot be protected by copyright. Here’s what the Copyright Office says about the subject:

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

In addition to lists of ingredients, unadorned instructions in a recipe, “put the eggs, popcorn and garlic into a bowl and stir,” are also generally not protected. There are only so many ways to describe common cooking activities.

That said, Ms. Hachisu seems to be using the right language to support her claim, “unique turn of phrase.”

You Bought It, but You Don’t Own It

7 October 2016

From Slate:

The days of buying software, movies, and music albums on nifty plastic discs are about over. Soon media will be obsolete. Content—streaming and on-demand delivery of entertainment and software—will reign supreme. When consumers access one of these, they will do it over the internet, and when they buy a copy, it will increasingly be stored on remote servers (more popularly known as the cloud) that are accessed online.

Yes, some people are still buying DVDs and even CDs, but they’re swimming against the tide. In the near future, they will find themselves struggling to find a CD or DVD player that isn’t marketed as “retro,” like buying a turntable today. The major software publishers are so committed to cloud computing that they have either integrated their software with internet services, such as Microsoft Windows 10’s OneDrive, or stopped selling copies altogether, as Adobe did when it moved its Creative Suite publishing software (including Photoshop) entirely to the cloud. Web-based services like Netflix for movies and television, and Steam for video games, dominate the entertainment market, and even streaming music through such services as Spotify might someday replace downloaded MP3 files.

. . . .

Fast-forward, as it were, to the advent of digital technology and the internet, which make it far easier to implement technological obstacles to copying, such as passwords and remote access restrictions. These techniques, known as digital rights management (aka DRM), are now ubiquitous. Most digital content now has sophisticated copy protection integrated. But any protection can be hacked given enough time, and the main users of digital software and media content—the young—have the time and incentive to do just that.

And so, rather than relying entirely on DRM to protect their rights, the content industries turned back to law. Thanks to the Betamax case, they could not shut down the manufacture of all ways consumers could copy their content. Instead, they turned to two legal strategies. The first, originally used by software publishers but now common for all internet-based services, is the practice of including license agreements, which are contracts specifying what rights consumers have with respect to the software or service. Increasingly, these agreements have restricted traditional ownership-type rights—such as the right to alter the software to meet the consumer’s needs, to install the software on the same computer multiple times (if, for example, the storage drive had to be reformatted or replaced), or to resell the software if the consumer lost interest in it or a newer version was published.

Consumers never really consent to these terms. Most never even know about them, because they have neither the time nor expertise to read lengthy and arcane legal documents for every version of every copy of software they owned or every internet-based service they have used. I myself used to write these agreements for many companies whose websites and software you have certainly used, and even I have neither the time nor inclination to read every license agreement with which software publishers and ISPs present me. Did I say “every?” I meant “any.”

By the late 1990s, it began to look like consumers didn’t own the software the purchased: They were really using it at the sufferance of the copyright owner, under terms only the copyright owner knew and could control. Some courts let them, interpreting the software license as meaning that the consumer didn’t own the copy at all. This is the situation today. Congress has never yet amended the Copyright Act to protect consumer expectations from self-serving license terms, some three decades after the problem first arose.

. . . .

With the move to cloud computing and streaming content, the concept of “copy ownership” is now disappearing from entertainment as well. Software, motion pictures, and even music are increasingly a service provided to you. Streaming services and cloud content have their own worries. For example, what happens when you’re traveling somewhere with no reliable internet access? What happens when the service provider’s servers go down for days and you are paying for a service you are not getting? But the problems run deeper. The loss of ownership sends copyright law out to sea.

. . . .

Suppose a software license agreement granted the publisher an automatic right to use any content that you make using its software. A photographer, graphics designer, or novelist could find her images or novels exploited by the publisher in competition with her, without her consent. The example may seem far-fetched—unless you know that some software service providers have already in fact done it. For example, you can upload digitized photos to National Geographic’s website to share with other users, but by doing so, you automatically grant NG a “worldwide, perpetual license” to display and alter your photos, or to relicense them to others for NatGeo’s benefit, “without further review or participation from you,” and “without compensation of any kind.”

Link to the rest at Slate and thanks to Matthew for the tip.

Settlement Reached; Injunction Lifted, In Search of Nampeyo Is For Sale Again!

2 October 2016

From Free Nampeyo:

Harvard v. Elmore has settled out of court.   In Search of Nampeyo: The Early Years 1875 – 1892 is NOW FOR SALE AGAIN.  This award winning book documents for the first time that many early works of the great Hopi/Tewa potter Nampeyo are in the Keam Collection at the Peabody Museum at Harvard University.  Mr. Elmore arranges groups of pottery to demonstrate the evolution of Nampeyo’s early work.  Over 100 pieces of the pottery are depicted in high quality, full color photographs for the first time.  Mr. Elmore also discusses Nampeyo’s art in light of the Modernist art movement.

. . . .

As part of the settlement, Harvard gets to tip-in a page to each of the books.  Harvard’s page contains two paragraphs.  The first reads:

The photographs attributed to the “Peabody Museum” or the “Keam Collection” were published without the Peabody’s permission or review, in violation of the author’s contractual obligations. Many of the images have been altered by photo- editing software. The Peabody does not verify that the images are accurate representations of the objects in its collections.

Similarly, photograph caption information was not reviewed or approved by the Peabody and does not meet Museum standards.

The excellence of the photographs and the book are attested to by its many national awards and positive reviews.  The Peabody Museum chose not to do the work to supply Museum approved captions, though Mr. Elmore offered to include any and all corrections in an addendum.  The Peabody Museum Press and Peabody Museum staff chose not to review all the photographs; indeed considerable effort was expended to conceal any review processes from Mr. Elmore.

Their second paragraph reads:

The image on page 182 identified as a Peabody postcard is a screen shot from an old version of the Museum’s online database. This photograph was not approved for publication. The image in this book has been altered by the author to look like a historic postcard. The Peabody denies that any such postcard exists. 

This second point is puzzling. Harvard draws attention to an image that is not copyrightable because it is a simple snapshot of a prehistoric ceramic. It is in the public domain and may be freely used by anyone for any purpose. Mr. Elmore stated that the image was photographed from a postcard and in an early pleading, Harvard claimed to own a copy of this postcard: “Defendants [Elmore] also published at least two photographs misappropriated from the Peabody Museum’s own collections…in the Infringing Book is a large copy of an old postcard from the Peabody Museum”. Why does Harvard now claim that the postcard does not now exist?

Harvard states in their Press Release that they considered Mr. Elmore to have “doctored” photographs from their book Historic Hopi Ceramics to make them appear as drawings. Harvard refuses to acknowledge that they lost their copyright infringement claim against Mr. Elmore for these illustrations. Harvard continues to imply that Mr. Elmore improperly used their photographs when in fact he merely depicted Native American forms and designs in the public domain. These Native American pottery forms and designs cannot be copyrighted by Harvard or anyone else.

In its press release, Harvard claims that it never tried to copyright Native American designs. Yet, if the Native American forms and designs are removed from the photographs that Harvard claimed were infringed, the page would be blank. The Peabody Museum Press frequently publishes illustrations of pottery created from photographs produced by other museums. Here, they sued Mr. Elmore for a practice they engage in themselves.

According to the judge’s ruling, photographs in Historic Hopi Ceramics are protected only from verbatim copying. This ruling is also relevant to items on the the Peabody Museum’s website. The website does not offer the user any guidance as to which photographs on it are in the public domain and what uses of the public domain items depicted in these photographs are permissible. As a rule, objects created before 1896 would be in the public domain. Any photograph of old pottery on the Peabody Museum website is in the public domain if it is a mere snapshot showing the condition of the pottery. If there is minimal creative input to the photograph (stripping out the background, for instance) that photograph is only protected from verbatim copying. This means that it is perfectly legal to create and to publish a drawing of an older ceramic in a photograph on the Peabody Museum website. Here is a useful guide to expiration of copyright.

. . . .

Harvard withheld thousands of pages of discovery documents from Mr. Elmore until after the Hearing that resulted in the temporary injunction on In Search of Nampeyo. Information contained in these documents directly contradict statements made by Peabody Museum Press editor Joan O’Donnell and Director of Collections Kara Schneiderman while under oath. Some of their statements were used by Judge Brack as the basis for granting the temporary injunction. In particular, specific statements about the “irreparable harm” caused to Harvard by the publication of In Search of Nampeyo are refuted by evidence in the discovery documents, sworn affidavits, and later depositions of editor Joan O’Donnell and Director of Collections Kara Schneiderman.

The rulings against Mr. Elmore, issued the day before the settlement conference, were originally sealed. Part of the settlement is that these rulings be unsealed, and they are now public records. Harvard’s press release statement that “The Federal Court analyzed Elmore’s allegations at length and concluded they were false…” is open to question. This statement is refuted by the fact that Harvard lost its copyright claim and the fact that Mr. Elmore is now able to sell his book.

Link to the rest at Free Nampeyo

If you haven’t seen previous posts about this matter on The Passive Voice, you may want to go to the OP and read the history of Harvard’s bizarre and bullying behavior in this matter.

PG says this is all too typical of the actions of a large organization whose executives lurch into high dudgeon with low levels of legal information.

After a period of expensive posing via counsel and court filings, the executives finally accept counsel’s quiet advice that this would be a good case to settle.

The organization signs the settlement documents, creates a dust cloud of publicity to confuse the issue and conceal the fact that they should never have filed suit in the first place. The executives harrumph about the ridiculous American legal system and withdraw into their dens to replenish their dudgeon supplies.

« Previous PageNext Page »