RE: Using Celebrity Photos in Educational Module

["Humphrey, Brenadine" <humphreyb@xxxxxxxxxxxxxxxxxx>]

I just wanted to mention that the NASA photo may or may not be in the public
domain.

While a US federal government employee might have taken the picture it may
also have been taken by a photographer who was contracted, making it eligible
for copyright protection. Generally when the US Government contracts work out
it has three standard copyright clauses that can be in the contract - 1.) the
copyright belongs to the contractor who grants an unlimited license including
reproduction, derivative works and public display to the US Government, 2.)
the copyright belongs to the contractor who grants a limited license that is
further outlined or 3.) the copyright belongs to the contractor who must then
transfer the copyright to the US Government under terms of the contract.
These are standard for Defense contracts, other federal agencies and NASA
follow slightly different contract guidelines but with similar outcomes - the
copyrightable piece is either owned by the contractor and the government has
some version of rights to its use or the copyright is transferred to the
agency who contracted the work.

The US Government can hold copyright on works when the copyright has been
assigned or transferred to it. Unfortunately, the US Government is not very
good about providing copyright information on products and publications and
many people mistakenly believe everything from the US Government is in the
public domain.

This problem is only bound to get more complicated as the government uses
more and more contractors to fill what once were federal positions.

A good resource for information about copyright in the federal government is
the CENDI Working Group on Copyright and Intellectual Property at:
http://www.cendi.gov/wg_copyright.html.

-Brenadine

Brenadine Carol Humphrey
Copyright Specialist
George C. Marshall Center
College of International Security Studies
DSN 314.440.2699
COM +49 (0)8821 750.2699
humphreyb@xxxxxxxxxxxxxxxxxx

-----Original Message-----
From: Harper, Georgia K [mailto:gharper@xxxxxxxxxxxxxxxxx]
Sent: Thursday, February 07, 2008 9:23 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: RE: Using Celebrity Photos in Educational Module

See below for comments and suggestions about your questions.

G


Georgia Harper
Scholarly Communications Advisor
University of Texas at Austin Libraries
512.495.4653; 512.971.4325 (c)

-----Original Message-----
From: Elizabeth J. Pyatt [mailto:ejp10@xxxxxxx]
Sent: Thursday, February 07, 2008 12:11 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Using Celebrity Photos in Educational Module

Hello:

I have a copyright question about using celebrity photos in an
educational
module, I'm hoping someone can clear up.

Our university has a service where you can download educational modules
free
for non-commercial use, but of course we want everything to be legal.

The module I'm currently working one is about famous African-American
musicians and composers. The origininal in-house module has photos, but
does
not document sources (this version is housed in a password protected
site).

But now I'm trying to find alternate images if I can.

 [Georgia K Harper]
There's an implication here that you plan to make some use *other than a
nonprofit educational use.* If you were simply making a nonprofit
educational use, I'm not sure why you would be worried about using
photos of famous musicians in an educational module. Such a use strikes
me as classic fair use -- commentary, etc. If there were an efficient
permission mechanism for images, that would be a different matter (as
there is for text). But as it is, for in-house use, behind secure
servers, etc. I would be comfortable with a fair use argument for these
types of images. So, I'm going to assume you are making some other use,
such as a commercial use of some sort.

 In one case, I found a
lovely photo of Patti Labelle taken by NASA at a NASA event.
What are the rules for this kind of situation? I know federal government
usually means public domain, but what about celebrities?

[Georgia K Harper]
You are correct that a NASA photo is in the pd because the federal
government does not claim a copyright in its works (works created by its
employees in the scope of their employment). If you are planning to make
money from this endeavor, it might be a good idea to do as Beth Ellen
suggests and explore the rights of publicity, but for a nonprofit
internal educational use, I wouldn't anticipate that an educational work
that does not take advantage of the celebrity's image for its own
commercial advantage would pose a problem. Rights of publicity are
different from state to state, and I'm not an expert, but I do think
that, as economic rights, they usually involve an unfair exploitation of
the good will (fame) associated with the celebrity's image. An
educational module for internal use just wouldn't quite fit that bill,
from my perspective.

Another question is if I can use older Library of Congress photos of
artists
like Billie Holliday or Duke Ellington without prior consent

[Georgia K Harper]
Anything published before 1923 is in the public domain and you don't
need permission for copyright purposes. Publicity rights can survive the
death of the celebrity, and the laws vary from state to state, so the
answer to that question goes back to your intended use. If it could be
deemed to exploit the fame for your own commercial advantage, it might
offend rights of publicity. But if its nonprofit educational use, I
doubt that it would.

Any insights would be appreciated.

Thanks

Elizabeth Pyatt

P.S. A second question is that if I find a digital photo where the
original
dates from 1911, has it entered "public domain" enough so that it can be
safely used without prior consent?

[Georgia K Harper]
"dates from 1911" isn't clear whether you mean published in 1911 or
taken in 1911. That matters because if it was published in 1911, the
answer is yes, it's pd. If it was taken in 1911 (but not published), the
answer depends on the death date of the photographer, because the term
for unpublished works is life of the author plus 70 years. So published?
In pd before 1923. Not published? In pd 70 years after death of
photographer.

--
=-=-=-=-=-=-=-=-=-=-=-=-=
Elizabeth J. Pyatt, Ph.D.
Instructional Designer
Education Technology Services, TLT/ITS
Penn State University
ejp10@xxxxxxx, (814) 865-0805 or (814) 865-2030 (Main Office)

210 Rider Building II
227 W. Beaver Avenue
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