Research

Copyright at the Museum: Using the Publication Doctrine to Free Art and History

Type: Journal Article
Author
Deborah R. Gerhardt
Description
This journal article describes the difficulties associated with determining whether a work is published or unpublished, and explores judicial precedent and potential ways to clarify publication status for archived works, which would make it easier for cultural heritage institutions to determine the copyright status of their collections.
Date
2014 Jul 29
Abstract
The abstract provided by the author(s) of this work is as follows:

This Article is the first to use the copyright publication doctrine to clarify whether art, photographs, films, and historical documents that fill our museums and libraries are in the public domain. Knowing whether a photo, painting, film, or original letter was published is critically important to anyone who wants to use it today. Before 1989, publishing a work with no copyright notice dedicated the work to the public domain. Unpublished works without a notice are likely protected by copyright, and their unauthorized use can result in severe federal penalties. Unfortunately, the meaning of “publication” in copyright law is notoriously ambiguous. The federal statutory definition suggests that works “made available” to the public are published, while leading treatises generally assume that works given to public museums and libraries are unpublished. Confronted with this uncertainty, risk averse institutions too often assume that archived works are protected by copyright. Misunderstanding the law can keep cultural treasures locked in dark archives, vaults and basements, preventing their use as a foundation for new expression and distorting our sense of history.

This Article critically examines mistaken assumptions about copyright publication. It finds that neither the statutory definition nor leading treatises adequately identify when a work is published. A better standard for determining when a work is published and in the public domain is needed to free works from being locked up by copyright uncertainty. The best solution would clarify the boundaries of a stable public domain. In a recent decision, the Supreme Court took a wrong turn in dismissing the importance of the public domain. Knowing what content may be freely used is critical to preserving First Amendment values and freeing cultural treasures from copyright’s bondage. The copyright ambiguity of archived works should be resolved in a way that honors the expressive and historical value of the public domain. After considering several alternatives, this Article shows how precedential patterns point to the best solution to the publication ambiguity. Drawing on empirical analysis of federal cases interpreting copyright publication, I identify the variables that are most important in determining whether archived works are published. The suggested solution focuses on copyright owner intent and the availability of authorized copies. Other factors described as significant in leading treatises - such as the type of work or archive - actually mask these two fundamental inquiries. The proposed standard provides a much needed solution to clarify which pieces of our cultural heritage are in the public domain and freely available as raw materials for educational sharing, expressive work, historical research, and public discourse.

Publisher
Social Science Research Network
Journal Title
Journal of the Copyright Society of the USA
Volume
61
Issue Number
3
Pages (from-to)
393-452
ISSN
0886-3520
Jurisdiction
United States
Language
ENG
Size
2.0 MB, 60 pp.
Copyright Information
In Copyright
Rights and Reuse
All Rights Reserved
DOI
http://dx.doi.org/10.2139/ssrn.2505041
Cortex Citation:
Deborah R. Gerhardt, “Copyright at the Museum: Using the Publication Doctrine to Free Art and History,” Copyright Cortex, accessed August 19, 2017, https://copyrightcortex.org/research/copyright-at-the-museum-using-the-publication-doctrine-to-free-art-history.