This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: If we wish to print a poem in a magazine and have tried for months to either find the copyright holder or get a response from the copyright holder, is it OK to publish the poem with a line that says something like “Every effort has been made to contact the copyright holder” and also add that should the copyright holder come forward at some point we will publish the proper credit line as a correction?

Answer:It is unclear what you mean by “OK.” The copyright owner may come forward and demand royalties after the fact, and if the journal has published the poem without permission, it must pay. You might be able to negotiate for a lower rate, but the journal is bound to pay. The fact that the journal has tried and tried to get permission does not excuse the use without permission. It is possible that the solution you offer would be accepted by the copyright owner without any royalties, but it is definitely the copyright owner’s choice.

What the journal must do when it cannot find the owner is determine how important publication of the poem is to the journal. In other words, is the journal willing to assume the risk? The risk may be small or even nonexistent, but it is still a bit of a risk.  

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This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: We have some journal authors who like to quote song lyrics. How should we approach this?

Answer: As with quoting other material, the amount quoted makes a big difference. Lots of old ballads have very long lyrics while pop music has many fewer with much repetition. So, assume that it is only a line or two from a long ballad. That is likely a fair use. But if it is a few lines from a pop tune, then permission is likely required. Typically, publishers require authors to get the permission, although some publishers offer assistance with this.  

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This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: Can you comment on the copyright status of  Facebook Memes?

Answer: Well, the copyright status of a meme depends on the source. Assume it is a photo with a caption; was the photograph taken by the person who posted it? If so, that person owns the copyright and can post it with no problems. But if it is simply a caption on a photograph taken by someone else, posting it is copyright infringement.

In other words, the addition of the caption did not transform the photograph into a new work. In December of last year, Facebook announced that it was going to post links to more articles and allow fewer things to be posted that had been published elsewhere. I am not sure how well this has worked out, though.  

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This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: Regarding fair use, to what extent must an image be transformed to be clear of copyright?

Answer: Courts are struggling with this right now, so there is no definitive quantity, etc. The best way I know to describe the amount of transformation that must take place for a photograph is a whole lot! Almost so much that it no longer resembles the original image. So, cropping the photo is not enough or using only a portion, such as the central figure or central building, etc., would not be enough.  

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This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: If I purchase permission through CCC to use a figure from a published article, do I need to secure author permission separately or does CCC handle obtaining permission?

Answer: I am sorry to say this, but “it depends!”

There are two possibilities for figures in published articles: (1) the author of the article actually created the figure and therefore owns the copyright because it is a part of the article or (2) the figure was first published elsewhere and the author got permission to include it in the article. In the first instance, the CCC permission is enough, and the figure is just part of the article. In the second instance, the CCC may be able to acquire permission for you for the figure. My assumption is that the CCC has the right to license the figure based on your question.  

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This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: We are a nonprofit society that publishes a scientific journal. We require authors to transfer copyright of published papers to the society, but allow authors “to reprint or reuse your own original material without requesting permission.” Can we allow authors to post their articles on websites without purchasing a reprint, either digital or hard copy?

Answer: I congratulate your journal on permitting authors to use their own works! This makes authors very happy, and I am delighted to hear that your journal has taken this modern approach. Assuming that the transfer of copyright is for the entire copyright (and not just the right to reproduce and distribute the work in the journal), by granting back to the author you are granting permission to use the work as you dictate. As the copyright owner, the journal can include anything in the grant, including posting articles on the author’s own website. There is no need to require a reprint be purchased. The author already has a digital version that he or she submitted to the journal.  

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This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: I work on academic journals, and we often run into situations in which authors “resubmit” papers based on research that has appeared in some form in another association’s conference proceedings. Excluding a one-for-one reproduction of a work, what are the copyright implications when one version of a paper serves as a “launching point” for a new version? For example, a submitted article might draw from the authors’ same core research and demonstrate overlap in its foundational discussion, but present findings and implications that are unique to the new article and are targeted and, to some extent, rewritten to appeal to a particular journal’s interests.

Answer: This is a complex question so lets break it down into parts.

1. What are the general copyright concerns in this situation?

Assuming that the author retained the copyright from the first paper, then publishing a later version with your journal is no problem. The author owns the derivative right which includes the right to prepare new versions. A new version has a new copyright in the new material added, but anything used from the earlier version has the copyright from the earlier version. If the author held on to the copyright then there is no problem.

2. What burden is on the respective publishers?

They need to make sure that the author actually did not transfer the copyright to a previous version to someone else. Typically, just presenting a paper at a conference does not require a transfer of copyright, so the author likely still owns it. Unfortunately, authors often have no idea whether they transferred the copyright. In that situation, you might require the author to indemnify the journal should someone else own the copyright and complain.

3. What burden falls on the author(s)?

Authors should be aware whether they own their own copyrights! This is unlikely to happen, however. If the author transferred the copyright to another publisher, then the author who creates a new version is infringing on the copyright (which he or she no longer owns). That is one of the reasons that I encourage publishers to take only the rights they need – reproduction and distribution, plus the electronic rights – but not the derivative right. Conversely, we also publish proceeding papers from our own conferences (for which we hold copyright) that authors often want to adapt into new articles for other journals.

So, does the journal actually own the copyright in each individual paper or in the compilation of the papers that is published as proceedings? To own each article, each author must execute a signed transfer to the journal which transfers the copyright to the journal for the individual paper. Many publishers understand this and are not so rigid about individual authors having to transfer the entire copyright. It is the compilation that the publisher sells. If it is important for the journal to own the copyright in the individual article, I would suggest that you consider whether you can let the derivative right remain with the author.  

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This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: Can a teacher/professor make a copy of a single article from an owned journal and give it to every student in the class?

Answer: Generally yes, if the article is being used for nonprofit education. At the time the Copyright Act was enacted, there were guidelines that were developed by publishers and educational association representatives called “The Guidelines on Multiple Copying for Classroom Use.” These were published in the House Report that accompanied the Act and therefore have a big stamp of Congress on them. They may be found here.

There are restrictions found in these guidelines, such as the length of the article, the fact that the decision to use the item was made too late to seek permission, a restriction on the number of articles per term, no charge for the copy beyond the actual cost of copying, copies must contain the notice of copyright and no repetition with respect to the same item without seeking permission. Further, many argue that such copying for a classroom is a fair use. The Georgia State litigation eventually will answer this question.  

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This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.

Question: Suppose an author has taken a picture of an ancient object and wishes to publish it. Must the author also get permission from the institution that owns the object? Put another way, does a group that owns an object have intellectual property rights over images of that object, no matter who takes the image?

Answer: The institution that owns the object certainly can control access to that object in order to protect it, or just because it wants to do so. But access is not intellectual property ownership. When you use the term “ancient object,” I envision an artifact such as a stone statute, piece of jewelry or some other artifact, and not a painting. In the past, museums often refused to allow photographing of paintings due to the potential for damage due to flashbulb use. We don’t really have that issue today with digital photography, however.

So, with an ancient object, a photograph is unlikely to damage the work, so that is not the issue. Again, in the past institutions such as museums sold photographs of objects in their collections and counted on that income. Today, however, more museums are recognizing that photographs of objects they own may be taken by anyone with a cell phone. Only someone who wants a very high quality photograph of the object is going to buy the ones they sell.

The institution does not have intellectual property rights in the object (which would be in the public domain, anyway). Their only interest is in preserving the work if photography would somehow damage it, and that is pretty unlikely with digital cameras. So, if the institution tries to impose restrictions on photography, argue with them!  

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