Mark Vargas, SAH Board member and Director of Grants and Research at America’s Packard Museum.
The entrance to Hell in Dante Alighieri’s Inferno is a gate bearing the famous inscription: “Abandon all hope, ye who enter here.” Welcome to the netherworld of copyright law. Please note that I am not a lawyer and this article is not legal advice, but I will say that the best advice I ever received from a distinguished copyright lawyer was “it depends.” Copyright is a gray, foreboding abyss with more circles than Dante’s Inferno, and always knows the answer to almost any question will be “it depends.” For the record, in the Inferno, most lawyers are in the eighth circle, mired in boiling pitch, and there are only nine circles. To be fair, Dante does mention three lawyers in his Paradiso, although I suspect he had them on retainer just in case.
The U.S. Constitution, article I, section 8, clause 8 gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Copyright Act of 1790 codified the law, which has been amended many times since, especially in 1909 and 1976. What makes copyright so complex and bedeviling is defining in law what those rights are and how they are implemented. The laws concerning copyright have changed many times through the years, especially due to changes in technology, and we researchers need to understand the format of the material we want to use, why and when it was created, and even the copyright laws in effect at the time of item’s creation. Repeat after me: “it depends.”
Generally, the initial owner of the copyright is the person who makes the creative work. If you authored the article or book, made the song, or took the photograph, you are the copyright owner. If you created the work as an employee, acting within the scope of your employment, then the copyright owner is the employer. As you might guess, the exact definitions of who created what leads to endless court battles. So, who owns what? Repeat after me: “it depends.”
Anything that is fixed in a medium and is original is copyrighted. To be considered original, there must be a “modicum of creativity” in how it has been expressed. In other words, once you create an original work, and fix it on paper, in an artwork, sound recording, or on the drive of your computer, then the work is considered copyrighted. Copyright law gives the creator specific rights, including reproduction of works, distribution of copies, making of derivative works, and public performance and display of works. Copyright owners can give or sell their rights to others or grant rights to the public to use a protected work, like with a Creative Commons license. The usual car club newsletter or website usually does not mention copyright, and rarely are rights for articles, photos, or videos made clear. If your car club has movie night, be sure to have paid for the public performance rights. Otherwise, the fines can be shockingly high, and I’ve seen it happen.
Some works lack copyright protection, and they are freely available for use without the limits and conditions of copyright law, which is called public domain. Works produced by the U.S. government are not copyrightable. Copyright also does not protect facts, ideas, discoveries, and methods. What about that 1954 Hudson parts catalog on your shelf? The listings might not be copyrighted, but the way they are listed might be. Does the boiling pitch in level eight sound appropriate? So, who owns what? Repeat after me: “it depends.”
What does a creator have to do to make their work copyrighted? Until 1976, the work had to be published and registered with the US Copyright Office. If published works did not include the official copyright notice it became part of the public domain. The most infamous example was the 1968 classic zombie film, Night of the Living Dead (and in this humble writer’s opinion, still the best). The film was edited after initial test showings, and the copyright notice was accidentally left off the prints that went to the theaters. It instantly went into the public domain. Since 1976, all original works fixed in a tangible medium are instantly copyrighted and you do not need a copyright statement, symbol, or register at the Copyright Office. But it is highly recommended for legal protection to always have a copyright statement, add the copyright symbol, and register to prove in court your ownership. Do you want to know about materials created outside the US? You just entered a new circle of the Inferno. So, who owns what? Repeat after me: “it depends.”
Now that you are thoroughly muddled and begging for mercy (which you don’t find in the Inferno, sorry), let’s talk about how long copyright lasts. You can guess the inevitable answer. It depends on when the work was created, whether it is a work for hire, and whether copyright was extended. The laws changed but were not made retroactive. In general , for anything created before 1978, check the copyright law in effect at the time. For anything created after January 1, 1978, protection lasts for the creator’s life plus 70 years. For “works made for hire” (employer-owned), it is 95 years from publication or 120 years from creation, whichever is shorter. The great auto writer Tom McCahill (who described a De Soto as “solid as the Rock of Gibraltar and just as fast”) passed away in 1975, so his works are covered by the 1909 Copyright Act. David Davis, the dean of automotive journalists, passed away in 2011, so his works are covered by the 1976 Copyright Act. Confused? The best source I have found for checking dates and coverage is on the Cornell University Library website. One big mistake that researchers and museums make is assuming copyright ends when the creator is dead or a company goes out of business. Nope. Just because they are gone their rights are still covered. Not sure who the copyright owner is? That is an orphan work, subject to many complications.
Okay, now that you are ready to happily throw yourself into a burning Pinto (not recommended as you end up in the seventh circle of Dante’s Inferno), there is some good news. Copyright is not absolute, and there are exceptions to everything. Many of us have heard the term “fair use,” which gives limited rights for using copyrighted works. It is not a blanket get-out-of-jail-free card. Just because you are a non-profit organization or not selling anything or making money is not enough. In a nutshell, fair use is determined on a case-by-case basis and is based on a consideration of the following four factors: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion to be used; the effect upon the potential market for the copyrighted work. Defining all this in practice is difficult and at this point the lawyers enter the picture. So, is what you want to do fair use? In many cases, it may be but be careful. Repeat after me: “it depends.”
This article has been a primer on the simple basics of copyright. I want to repeat I am not a lawyer, and this is not legal advice. My last recommendation is to retain a copyright lawyer if your organization is unclear about any of this. So, what should you do now? It depends. (mv)