Digitization and Copyright

Dear Discombobulated:

First, thank you from the bottom of my heart for using a “nom de Dear Abby,” so I could reply in kind. While I would love to think that the writing in Ask the Lawyer stands on the shoulders of legal luminaries like John Marshall, Antonin Scalia, and Learned Hand, the truth is, it probably draws more from reading “Dear Abby” and “Ask Ann Landers” in my formative years.

Which is fine, because above all, Ann and Abby strove to provide guidance that was readable, and useful.

So, what is a useful guidance here?

First (and I know you know this), it is critical for your library’s board to update the policies that have left you without guidance on this matter.

While it is of course the work of library employees to actually apply the policies during the difficult work of processing archival donations, it is the responsibility of a governing board to adopt (and as needed, revise) the policies that guide them.

In the case of “born digital” donations, this is particularly critical.

Many authors are now collecting their research and arranging their drafts entirely electronically. This means entire works that once took boxes and boxes to hold might be on a single thumb drive. This change in the medium, however, doesn’t lessen the impact of a writer’s archive, which can show us the sources, the inspiration, and (gloriously) the mess[1] behind the smoothly finished product.

The ability to store seemingly infinite data does not mean a library can simply accept and archive everything it is given. In fact, it means exactly the opposite. This is because an archive is not storage; it is a curated collection of information gathered for a specific purpose.

A good example of this is in the public-facing description of the New York Public Library’s Manuscripts Division,[2] which says in part:

While the policies for “born digital” content will generally not be in the public-facing part of an online archive’s website, behind the careful description of the scope of an archive will be the many rules it has for evaluating donated content.

Part of that evaluation will address the concerns the member has posed in their questions: Is the content already “out there?” Is it protected by copyright? Did the author gather the material and further manipulate it in a relevant way (for instance, gathering articles to show who was publishing on a particular topic), or is the information simply gathered for what it offers at face-value?

If the content of a donation fits within the scope of an archive, but largely gathers material that is readily available via other sources, it is unlikely that a policy will support an archive taking the time to re-enter that material. The sole exception would likely be if the unique gathering of material shows something special about the project, in which case it could be archived as one thing, and not a collection of singular objects.

For example: Let’s say I write a best-selling mystery novel mostly set in Grace Church in Utica, New York.[3] To make sure my story is authentic, I make a digital copy of every book and newspaper article I could find about Grace Church, linking events in my novel to events that occurred in real life. When I hit the New York Times bestseller list, I donate my archive (on an external hard drive, for security) to the Utica Public Library.[4]

Upon review, it is very likely the library would conclude that much of the material[5] would be too redundant to separately archive. If, however, I not only made a copy of the material, but then made digital notes on it—showing my thought process as the book was developed—that would be a different thing, and separate cataloging would be warranted.

This would be true even for more recent works that were still protected by copyright, but again, only if the digital copy somehow transformed the work from its state in another catalog.

So, with all that as background, let’s look at the member’s questions:

Is there a disclaimer or notice we can put on the online repository to protect us from potential copyright lawsuits?

Is this a situation where every PDF book and document should be researched first to determine if it is in the public domain or protected by fair use?

Should we simply refuse to put any of those documents online due to the risk?

The answer to this is:

The institution’s policies should be applied to assess if the entire donation is within defined scope of the archives.

The institution’s policies should be applied to assess if any of the materials are generally or easily available in other repositories (whether or not under copyright); if they are, they should not be separately cataloged, because they are redundant.[6]

The institution’s policies should be applied to assess if an array of information, because of its unique combination, is valuable to archive as a whole, even if the separate items are redundant. This means the collection of information could be saved as one item to provide insight into the research or creative process, even if the various items comprising it aren’t separately cataloged and available on an online archive. For copyright concerns, however, it may be better to have such content available for review (in digital format) on-site, only.

I appreciate that the world has (and is) changing rapidly, and many institutions cannot keep up with donations and cataloging, let alone policy review.

This is where the leadership structure of a library, museum, historical society, or archive comes in handy. As we know, at NYSED-chartered institutions, the trustees govern, while the employees manage the institution day-to-day.

Policy starts with governance: ensuring an institution is updating its policies to fit present needs is the responsibility of the board. Applying that policy, once it is established, is the responsibility of employees.

If the policies of an institution aren’t up to evaluating “born digital” donations, it’s time for a policy update. A good method for such an update is an ad hoc committee of board members, employees with relevant expertise, and maybe even a special member like a local scholar or IT specialist, from outside the institution.[7]

To start such a committee, a governing board could pass a resolution such as:

WHEREAS the [institution]’s archives are maintained to gather, catalog, preserve, and provide access to a defined scope of content; and

WHEREAS recent changes in technology require the [institution] to evaluate and refine its approach to digital content (both as donated, and as available via the archives);

BE IT RESOLVED that [NAMES] shall be formed into an ad hoc “Archives Policy Review Committee” for purposes of researching, evaluating, and drafting recommended policy updates to confirm the scope, criteria, manner of evaluation, manner of acceptance, manner of cataloging, methods of preservation, and methods of providing access; and

BE IT FURTHER RESOLVED that such Committee is requested to have a recommended update to current policies by the DATE board meeting; such date to be extended if warranted.

In closing, I have to say to “Discombobulated about Donations”—you are not discombobulated at all! The question shows orderly thinking about how to best use the limited resources of an archive and how to protect your institution from risk.

I’d say you’re “Acing it in the Archives.”

Thank you for a great question.

We have had a lot of questions about yearbooks over the years of Ask the Lawyer.[1]  We'll answer this submission with the understanding that for those who want further and deeper information, there's more to read in the "ATL" vault.

Regarding the yearbooks: Unless an institution hired an outside agency to compose the yearbook, the copyright to the complete book is owned by the school, which is most likely free to digitize or otherwise make copies of the books as a whole.[2]  However...

Regarding individual images/photos: If any images were generated by an outside[3] professional, they are likely still owned by that professional (or their heirs), which as the question alludes to, could complicate creating and using them.  In addition....

Regarding the images of former students: In New York, the use of a person's image for commercial purposes requires written permission.[4]  The law also requires permission to use the images of deceased people if they qualify as a "personality" (basically, a famous graduate).  So...

That means that for the uses described in the question, limiting liability is a 2-step process:

1.  Assess if the photos are still protected by copyright, and if they are, secure appropriate permission.  This can be tough, since the individual images will likely not be credited, and finding the original contract or documentation will be hard.  Further discussion of this step is below.

2.  Ask the former students for permission to use their image (an "image release").

This can be done in a way that is fun, simple, and reinforces the students' connection to the institution.  Here is a sample way to ask for a release:

Dear NAME:

[insert customized nice things from your institution as a greeting.]

We are reaching out to you in the hope that you will grant your permission to [SCHOOL NAME] to use this image for student recruitment and to promote awareness of [SCHOOL NAME]'s mission.  This means your name, and the picture we're including, would be in advertisements for [SCHOOL NAME].

If you agree, please sign below.

NAME, we appreciate you considering this request.  In addition, if you believe any of your classmates would be excited to help us out this way, please let us know!  [SCHOOL NAME] is always seeking ways to reinforce our connections to our alumni, while we also reach out to the alumni of the future.

[insert customized nice things in closing]

[signature]

LIMITED PERMISSION TO USE NAME AND IMAGE

This form can be signed and returned in the self-addressed, stamped envelope provided, OR a photo of the signed document may be taken and the image sent to INSERT EMAIL, whichever is easier for you.  If you send the document via email, please send your preferred telephone number for confirmation. 

Thank you for granting [SCHOOL NAME] this permission.

On this _____ day of _____________, ______, I, [PRE-INSERT NAME], agree that [SCHOOL NAME] may use my name and the above likeness for purposes of student recruitment and to promote awareness of [SCHOOL NAME]'s mission in any print medium, on the school's website, and in electronic advertising.

I appreciate that I can withdraw this permission and upon so doing, the school will immediately remove my name and image from the school's website, and from any advertising (print or electronic) as soon as the duration of the advertising contract expires.

SIGNATURE: ____________________________

Okay, that's the "image use" concerns.  Now, back to the copyright.

For professional photographers, the copyright to their images is part of their livelihood, so I very much appreciate that the member is thinking about that factor.  For amateur photographers who may have supplied their work, they are owners too, but ownership of the photo may have even fewer clues.

There are a few approaches to determining copyright ownership of "old"[5] yearbook photos.

To determine copyright ownership of "old" yearbook photos, you have to play detective.  Places where you may find "clues" about ownership include:

• The credits of the yearbook
• Old files from the yearbook committee
• Procurement/purchasing records from the school's business department[6]

The best documentation related to professional portrait photos is usually an old contract or invoice, since the ownership and permission to use the photos--if ever confirmed in writing--would likely be there.

If you are lucky enough to determine the photographer, but not the terms under which they worked, if they are still alive (or the business is still in operation) you can reach out to them for permission (bear in mind, they could say no, and you may need to negotiate for a reasonable fee).

If your institution can't locate ANY information on the photographer, it has a choice: don't use any of the images; OR use the images knowing there is a risk of infringement, and limit that risk by engaging in "risk management."

"Risk management" includes:

• Using images taken before 1927, since those are most certainly not protected by copyright;
• Using the oldest images that can suit your institution's purpose, since the older the image, the less likely it is that there is a person or estate monitoring use of the photos and waiting to claim you need permission to use them;
• Avoid using images of "famous" alumni, since photographers who know they once photographed a famous person during their freshman year, often recall that fact, and know they are sitting on a goldmine;
• Documenting your search for records related to ownership, so you can show the institution made a good-faith effort to locate the owner.

With all that said, the quick answers to the member's questions are:

Question 1) There is no one way or "best practice" to determine post-1927 copyright status, but there are many ways to look for clues, and many of them can be used to reduce or eliminate potential liability for copyright infringement;

and

Question 2) Yes, if an academic institution is going to use photos of former students for advertising, it MUST get written permission from the person depicted.

Thank you for sending in these thoughtful questions!

[1] See “Ask the Lawyer” yearbook-related questions on FERPA; Request to remove scanned pages; Photo Copyright and Copying

[2] The exception to this is if permission to use the photos was limited to one print edition.  Contracts for yearbooks post 1995 (or so) may limit this, but "old" yearbook contracts likely will not contain a restriction on the method of the yearbook's duplication.

[3] "Outside" meaning not an employee of the school.

[4] For more on this, see "Ask the Lawyer" here and here.

[5] What age is an "old" yearbook photo these days?  I feel like the moment you open a yearbook and say: "Look at those clothes/hair!" the photos are "old."  So, maybe, pre-2010?

[6] This may seem far-fetched, but some places hoard this stuff.  I love going through those type of records because they showcase the history of printing and document duplication.

To address this question, I took a look at several issues of "Skald Art & Literary Magazine."

Each issue was interesting, but it was viewing the works collectively that brought true rewards.

Every issue was a different size, was informed by a different design sensibility, and had a different type of binding.

One was like a small stack of matte postcards, bound together by silvery screws.

One was a larger, glossy collection of art and poetry, held together by wire.

Another was square-bound, with velvety paper, and blocky text of turquoise, mustard, and brown.[1]

All in all, the pile of "Skald" showcased why print, even if evolving, will never truly die.  There is too much to be gained from the tactile experience of holding words and pictures in your hand.

That said, as the member's submission suggests, the digitization of legacy publications can be important--and can require consideration of copyright.

In this case, the indicia on the physical copies was consistent with what the member described--the overall copyright of the magazine (a "collective work") was in the name of Villa Maria.  And without any sign otherwise, the listed student authors were the owners of the individual works.

As provided in Section 201(c) of the Copyright Act:

(c)Contributions to Collective Works.—

Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

Since technology has made not only the digital reproduction of compilations, but their dis-aggregation (as in, offering an article or picture separately from the work it was originally presented with), possible, a number of cases have ruled on when and how an owner of a "collective work" such as Skald can reproduce the work digitally.

The seminal case on this was New York Times Co. v. Tasini[2], which held that while the newspaper involved may have held the rights to digitize entire back issues, offering distinct articles separately for re-sale was an infringement of the authors' copyrights.

Almost twenty years later, additional cases[3] have further refined this issue, and set up a general rule that--unless there are terms limiting the medium or length of a license to use something in a collective work--the digitization of a collective work is a legitimate power under the work's copyright.  On the flip side, digitization that enables the ability to separately duplicate and commodify an author's contribution to such a work could be an infringement.

So, in this case, unless there are separate written agreements with the authors specifying otherwise, the owner of the literary magazine can arrange for digital publication of the work as a whole--but must take care that it is not creating digital copies of individual contributions.

This is where things can get tricky.  The college will have to plan out the project and pay close attention to the technology, taking care that the digital image is clearly a copy of the compilation, and not the individual contribution.

This is where the magazine's distinctive layout and design can really come in handy.  By digitizing the pages of the entire magazine--not just the work it features--the final product should capture and visually convey its identity as part of a collective work.  That approach should also be emphasized in the index language[4] and reinforced via the digital format (more on that in a few paragraphs).

The member's question doesn't touch on some of the other questions that digitization of student work can bring up, but since anticipating them is part of properly handling them, I'll list them:

• Some people whose images were used as part of a student art project could now object;
• Some students who feel their work is not a good reflection of who they are now (personally or professionally) could object;
• Student work that is perceived as out of pace with contemporary standards of respectful discourse could cause embarrassment or controversy;
• Some students could still try and argue that although it is clear the college owns the compilation, making the digitization available infringes their copyright.

Some of these concerns are "legal" (as in, they could bring liability) and some are "relational" (as in, they could bring bad PR, or unhappy alumni).  All of them, if not handled quickly and efficiently, can turn into a "thing."[5]

A catch-all way to give such concerns an orderly path to be submitted to your institution--and to address the copyright priorities I describe above- would be a statement along with the information accompanying the digital publication[6]:

"(c) YEAR.  The copyright to this collective work is owned by Villa Maria College.  Aside from viewing the images per the Terms of Use of INSERT PUBLICATION SITE, no permission is given to use any image or text from this collective work, for any purpose whatsoever.  For inquiries about using a particular work, interested parties must reach out directly to the author.  Any person who believes their work, image, or other right is impacted by this digital publication may contact CONTACT INFO[7] to report their concerns." [8]

Thank you for a great question!  And thank you for sharing a remarkable example of a student-led pub

[1] It looked like a yearbook for a school where a person could major in skateboarding.

[2] N.Y. Times Co. V. Tasini, U.S.Supreme Court, (2001)

[3] Such as Auscape Intl v. National Geographic Society (U.S. District Court for the Southern District of New York, (20040, and Mosca v. Yankee Publishing, Inc. (U.S.District Court of Maine) (2015).

[4] In New York Heritage, this is the section "About" a particular collection.

[5] What's a "thing?'  It's a... you know...a thing.  Like: an online petition, protests, law suit, angry letters, cancellation, documentary, Twitterstorm, etc.  While a "thing" can be started by just about anything, not having a designated place for people to direct their grievances--so they can be addressed promptly and respectfully--is often a major factor.

[6] Usually in the "Index" or "Information" function, and/or included as metadata (like the "About" section referenced in footnote #4).

[7] This should be the address for requesting removal per the DMCA.  For more information on having a designated address for DMCA "notice and takedown", see Ask the Lawyer Copyright protocols for restaurant menus.

[8] As with all template notices, it is best to have the final text reviewed by your lawyer, in this case after review of the specific publication and the final form of the digitization.

I appreciate the care behind this question: when yearbook information is being assembled, not many people are thinking about all the places the publication could potentially go.

Whenever I get a question related to a yearbook, the first thing I do is check my legal research service to see if there are any new yearbook cases[1] in the New York State or federal courts. It's a chance to check on the latest in a niche area of case law, as well as to make sure I am working from the most current information.

Every time I check with the list of cases, I am reminded that while most people bust them out every so often for nostalgia or period-specific hairstyle mockery, one of the most frequent uses of yearbooks in the legal world is the identification of potential criminal defendants.

That's right. There are numerous cases[2] that show that in addition to a police station photo-array and a classic lineup, trotting out the high school yearbook is another way for people to seek out suspects in criminal matters.[3]

All to illustrate the member's very real concern: yearbooks, which can be used to directly and indirectly convey so much information about students, do not remain in school and student hands, and are not used exclusively to travel down memory lane.  They can be given away, they can be sold, and they can end up in police stations...perhaps by route of the public library.

Does that mean the library shouldn't house them?  Not from where I sit, but I do think some reasonable precautions to guard against releasing information about minors could be taken.

Schools[4] who wish to take such precautions can do the following:

1.  Register the copyright of the yearbook to the school.

2.  Include a copyright notice and a "reservation of rights clause"[5] in the published hard copy version, barring duplication for any purpose whatsoever.[6]

3.  Remind (it would be largely ineffective to require) students to keep their copy safe at home[7];

4.  If requested, provide a copy to the public library with the condition that the copy will not be in circulation and certainly not be digitized until a year after the earliest class featured in the book has graduated (i.e., if the books' youngest students are in class of 2030, the book should not be in circulation until 2031);

5.  Ask if the book could always be in a "special collection" that does not leave the library and cannot be scanned[8] (either forever, or until a specific date);

6.  If advertisers or sponsors require a copy of the book, make sure the advertising contract limits their use of the book to things that don't risk the privacy of the students (no leaving the display copy at the bar in the restaurant who bought an ad).

In this day and age, it can seem almost quaint to worry about the risk that over-exposure of yearbooks poses to privacy. But as the member points out, the information that can be gleaned from a yearbook can reveal things about a student's identity, activities, and schedule. Further-although they can of course be forged--in a sea of mis-identified or ambiguous images on social media, a yearbook's status as a school district "official" publication means they are a little more authentic (and thus valuable).

For this reason, a little extra care in how yearbooks are published and distributed is well-warranted, and should be respected by anyone who has asked to take it.

Thank you for a thoughtful question!

****BONUS EXTRA***

Here is a sample yearbook "reservation of rights""

(c) [YEAR] [District Name]

This [insert year] yearbook is a collective work protected by copyright owned by the [insert school district].  Individual images and compositions may be owned by individual authors.  No part of the book may be reproduced in any medium whatsoever without permission of the District.  The names and likenesses of people featured in this publication are protected by the laws of the state of New York.  Inquiries for permission may be directed to [address].

As with all template language, this is just a starting place...review the final with your lawyer before using!

Suggested tags: Yearbook, copyright, school district, digitization, image use, privacy

[1] It's a very sophisticated legal search; I visit Lexis-Nexus, and type "yearbook" into the search bar for state and federal cases, and organize the results "newest to oldest."

[2]For example, see Wagner v. Hyra 518 F. Supp. 3d 613 (NDNY Feb. 10, 2021); Tytell v. AIW-2010 Wind Down Corp., 2019 N.Y. Misc. LEXIS 5412 (NY Oct. 19, 2019); Williams v. County of Suffolk, 2019 N.Y. Misc. LEXIS 5412 (NY Oct. 1, 2019). I would add that cases against genealogy sites like Ancestry.com and PeopleConnect.com are also often yearbook-driven; for an example, see Braundmeier v Ancestry.Com Operations Inc., 2022 US Dist LEXIS 212415 [ND Ill Nov. 23, 2022, No. 20 C 7390].

[3] I am not endorsing this practice, just noting that it exists.

[4] While it will depend on the circumstances, the school will be the owner of the copyright to the yearbook, even if professional photographers and other contributors retain the rights to their original contributions.

[5] This is really just language to warn people off from making non-fair use copies.

[6] Neither the copyright registration nor the notice will be a "magic bullet" that will stop a third party from using yearbook-gleaned information if they are determined to act creepy, but they can help reduce certain opportunities for creepiness.

[7] Maybe include a free ticket to the 80th class reunion, only redeemable if presented intact with the yearbook?

[8] Except to make adaptive copies per the ADA, of course (or to address damage as allowed by 17 U.S.C. 108).

Menus can be works of art.[1]

"Art" of course, is a subjective term, and has no precise, stand-along definition in copyright law.[2]  So more importantly for this discussion, a "menu" can be a composition of such originality and substance, that it is protected by copyright law.

This protection can be for the work as a whole (the entire menu), and/or it can be for individual elements in the work.  It can cover stand-alone elements (such as a cover photo image or flavor text[3] used to describe a signature dish), and, in these days of Slice and Grubhub and Yelp, it can be for the menu as a physical object, or a version published only online.  It can cover the original art in a trademarked logo, whether that art was generated by an independent contractor or employee.

Recent case law illustrates how these protections can be sliced-and-diced, and also shows just how nasty litigation over restaurant copyrights and trademarks can be.[4]  Menus and the logos and information they carry can be the apex of a restaurant's brand, reputation, and intellectual property.  So the member is right to take this concern seriously.

With care, however, the act of creating an online archive of carefully curated restaurant menus, for well-articulated academic purposes, should be able to find protection in the line of "fair use" case law building on the 2nd Circuit's 2015 decision in Authors Guild v. Google,[5] which relates to the creation of online repositories.[6]

As the Court found in that case: The purpose of the copying [to create the online resource] is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.

The key to scanning and incorporating menus still under copyright protection into an archival database of menus at a library or educational institution, while taking advantage of the fair use defense set forth in Authors Guild, is to do so in a manner that:

• Yields an asset that is useful beyond the mere replication of a single menu;
• Ensures the archive will not enable use of its images in place of a copyright-protected original text or image; and
• Uses an array of professionally developed standards to confirm and assert the academic and/or cultural value of the archive as a whole, and the inclusion of a particular work in that archive.

There are numerous techniques to achieve this.

First and foremost, the purpose of the archive should be developed and set forth on the archive in clear, well-developed terms. The database should not look like a group of menus simply gathered together by a person who happens to have made a collection of his favorite restaurants.[7] The cultural value and purpose of the collection should be stated in very certain terms, and consistently repeated throughout the archive's pages, cataloging text, and metadata.

Second, the function of the archive should be such that users can demonstrably benefit from the aggregated content and information. For instance, menus should be searchable by geographic region, type of food, notable characteristics, and other relevant factors...giving the aggregated content value beyond what is created by each individual entry.[8]

Third, the archive should adopt a standard approach to assessing and depicting the authorship, ownership, and copyright status of archived works.[9]

Fourth, the images themselves should be created so that a third party using the image cannot create a credible replica of the menu or the original originating restaurant's logo or copyright-protected content. A picture taken with a border, or the use of a watermark indicating that the image is part of the archive are some common ways to do this; technology creates many other and evolving options.

Fifth, since it will help mitigate damage in the event a copyright owner simply refuses to believe an archive has made a "fair use" of their content, the overall approach of the collection should be assessed using your institution's fair use assessment form, and that record should be kept. Why is that?  Being able to demonstrate a good-faith effort to establish that the use is fair can help mitigate damages, and can be a deterrent to a plaintiff pursuing a lawsuit all the way to a verdict.

Sixth, the "Terms and Conditions" of your online archive should feature a process for owners to report good-faith suspicion of copyright infringement, and your institution should have a registered agent as provided by the DMCA.  An example of this type of statement can be found in the DPLA's Terms and Conditions as of April 15, 2021: https://dp.la/about/terms-conditions. [10]

Seventh, if you haven't, consider the benefits of registering an agent under the DMCA, and if it's a good move for your institution, register (you can look up and see if your institution already has an agent here: https://www.copyright.gov/dmca-directory/).

And finally, to the extent possible, for steps five, six, and seven, work with your institution's attorney, who can connect all these steps and the academic activity they support with your institution's insurance and risk tolerance.[11]

So, with all that as background, here are my answers to the questions:

Can we scan and put online menus dated after 1977 (and especially more recent – up until 2021) if it is for educational purposes?

Answer: Yes, copyright-protected materials can be duplicated if the use is fair; by following the cautions above, an institution can set itself up to both create a highly useful and important archive, to claim fair use, and to mitigate damages in the event of a worst-case scenario.

If we do scan them, would we need permissions from every single chef/owner?

Answer: if the use is fair, there is no need for permission...and in fact, asking for it could be introduced by a plaintiff as an admission that you concluded you needed permission.

Now, a word of caution on this: if your archive is part of a larger institution, the other departments of that larger institution need to be alerted that just because an image is on your archive, that doesn't mean they can use it for a catalog cover, a web site image, or a poster advertising your institution.  After all, a use that is "fair" for an academic archive might not be so "fair" if it is on a brochure for a program or event (even if the program or event is not subject to a charge).  This is especially true since menus will often feature not only copyright-protected material, but trademarks (which, unlike copyrights, do not expire if they are in continuous use).

The copyright status of menus in general has always seemed murky to me, but I don’t even know where to go to find clear answers for this situation.

Because the menus themselves can be protected by copyright--as well as the individual elements in the menus--that "murkiness" is here to stay. Unless a menu is clearly in the public domain, it is best to assume that it--or some part of it--is subject to copyright, and remember that a restaurant's name and logo are its intellectual property, too.  The reason an archival initiative can make this assumption, and still hope to achieve its objective, is because by carefully and deliberately assembling those individually protected elements, they are creating a broader work with value beyond each individual element.

The value of a collection of menus is likely obvious to librarians, academics, and information managers.  But just as an example of how valuable such a resource can be, even outside the field of scholarship, I'll share a personal anecdote: while working on a case for a neighborhood fighting a fast food drive-thru in their dense, urban neighborhood, I used the New York Public Library's digital collection to find a menu for the "Little Harlem Hotel" in Buffalo NY.  The menu was part of the research we used to make the case that the neighborhood has a history worth fighting for. 

We lost the case,[12] but that menu helped create a vivid argument about the history of the neighborhood and its vibrant legacy, and that argument was energized by the archive.  An online archive of menus can be important in countless ways; finding the right legal recipe to make it happen is worth it.

Thank you for a great question.

[1] If you are skeptical about "menus as art," check out the menu here, and tell me if the rooster doesn't convince you that he could be in a museum.

[2] "Visual art" does, and of course "art" as a general term is used regularly in copyright jurisprudence. But "art" remains a subjective term.

[3] Yep, that's a "flavor text" pun.  Yum.

[4] The 2019 case Khan v Addy's BBQ LLC, (419 F Supp 3d 538), involving former business partners operating BBQ joints in Tea Neck, NJ, and Elmont, NY, shows just how convoluted these things can get.  Another case from 2018, 784 8th St. Corp. v Ruggiero, 2018 US Dist LEXIS 5405 shows how copyright ownership to logos and menus can change based on who did the work; also, it shows that if you are in business with family, it is important to have a good lawyer!

[5] Authors Guild v Google, Inc., 804 F3d 202.  The Supreme Court denied a chance to review this case, leaving the 2nd Circuit's decision intact. 

[6] The database created by Google in the Authors Guild case was not a straightforward online archive like the one described by the member here.  However, the case is still applicable in several important ways.

[7] I know a professional archivist would not do this, but this is a very important distinction.

[8] Other "relevant factors" of which I, a food philistine living in the city that invented Buffalo Wings, and originally from the city that invented Chicken Riggies and Half-Moon cookies, am shamefully unaware.

[9] The approach of the Digital Public Library of America ("DPLA") happens to be my favorite, seen here in this document about the Erie Canal, but is not the only standard out there. What's important is that the institution identified a system that works for it--and then consistently uses that system.

[10] It would be deeply ironic if the DPLA sent me a "cease and desist" for linking to their excellent resources.

[11] Since every archive or library has a different structure and different approach, while inspiration can be drawn from fellow institutions, the final approach and policies should be reviewed by a lawyer for your institution whenever possible.  As just a threshold issue, state-affiliated institutions have different risk considerations than independent not-for-profits.

[12] It hurt to lose, but the damage to the neighborhood hurt more.

I am always fascinated by the transformation documents can undergo, simply by operation of law, circumstance, or time.  For instance:

• Documents that are "education records" under FERPA can become simply "records," or "nothing" once the person to whom they pertain has died.[1]
• Documents that are "private information" under New York's new(ish) SHIELD Act[2] are no longer controlled by the Act if the digital copy is swapped for a copy on paper.
• Documents that use the "name and likeness" of a deceased performer, currently allowed, will be far more restricted when New York's new Civil Rights Law 50-f, which requires written permission for certain commercial uses, goes into effect on May 29th, 2021.[3]

And of course, documents can be "in" copyright, and "out" of copyright, or restricted due to medical content, or under terms of non-disclosure...restrictions that can shift based on any number of factors. 

An educational institution considering levels of access and use of student-related documents[4] has to consider not only these legal factors, but their unique policies.  Factor in fame,[5] and the stakes get even higher. 

Because of that complexity, I could muse/write/talk on this topic for hours.  But let's focus on the member’s specific questions:

1) When should on-site access to historical educational records be allowed (if ever), with reference to FERPA? What about providing copies of historical educational records?

If a former student is not deceased, there can be NO release of FERPA-protected education records to otherwise barred parties without written, dated consent.

If the former student is known to be deceased—or the passage of time suggests they might be deceased—then the records are no longer protected by FERPA, and that restriction no longer applies.

But as the member points out, there are other considerations.

2) When should on-site access to unpublished, non-educational records related to former students be allowed, in reference to state and federal copyright and privacy laws, and possibly FERPA? What about providing copies of these documents?
 

This is an interesting question because unless the records we're talking about ("related to former students") only contain "directory information,”[6] then they are by definition "education records" under FERPA.[7]  That is because the FERPA is intentionally expansive.  So old bills, dusty admissions files, and antiquated (but often fascinating) "administrative" records, although not "educational," per se, are still barred from release by FERPA if they relate directly to a student.[8]

BUT, as this question implies, FERPA isn't the only thing that could bar or restrict access to old records.  Copyright, privacy laws, and general prudence are all good reasons to not release institutional records unless there is a policy and process for doing so (like a policy for sending transcripts to future employers), or your institution is compelled to release them (like a judicial order or subpoena).

So, while a student will always have access to their records under FERPA, both former students and third parties should by default be barred from access or obtaining copies to records they are not entitled to.

Which brings us to:

3) Should we take a more risk-averse approach to high-profile alumni materials, or should our policies apply equally to all alums?

Many, but not all, educational institutions have internal archives—not formal "Archives" they hold in trust for the public (like the W.E.B. DuBois papers at University of Massachusetts),[9] but rather, materials they regard as important pieces of their institution's history and identity, so deliberately retain.

For some, this may be a complex and far-reaching catalog of institutional history.  For others, it may be simply hanging onto every program for every graduation ceremony.  And of course, for many, it will be special handling of any material that is related to famous or noteworthy alumnae.

Whether formal and well-funded, or informal and not funded,[10] every educational institution's internal archive should have a policy that covers: 1) that the archive exists to transition material from "records" into "archives;" 2) how those materials are selected; 3) how those archival materials are to be preserved; 4) how the archival materials are used and accessed internally; 5) how the archival materials are used and accessed externally; 6) the ethical standards and institutional values being applied in the overall operation of the archive. [11]

If an educational institution has in-house records of such magnitude that they warrant being their own archive (for instance, the Eqbal Ahmad papers at Hampshire College), yes, the development of that archive could warrant its own separate policy.  In that case, unique care would have to be taken to consider not only FERPA, but privacy laws, copyright (the author of an admissions letter is the copyright owner of that admissions letter...not the institution the letter was sent to, even if the institution retains the only physical copy).  

All that said, the end result need not be "risk-averse," so much as "risk-informed:" carefully assessing all the compliance concerns and risks,[12] how does an institution create an archive that suits its stated purpose and conforms to institutional ethics?  Until an institution is confident it has reached the right answer, access to third parties should not be granted, and only need-to-know access should be granted to those within the institution. 

I would like to thank the member for this question, it is a good one.  And I think we may have reached a new milestone at "Ask the Lawyer"—a reply where the footnotes are as long as the reply!

Thanks.  I wish you a well-resourced and culturally rich archive, and continue positive alumnae relations.

[1] See letter of LeRoy Rooker, Director, Family Policy Compliance Office, U.S. Department of Education letter of Date, found at https://studentprivacy.ed.gov/sites/default/files/resource_document/file/LettertoConnecticutStateArchivistRegardingEducationRecordsMay2008.pdf as of February 10, 2021, re-affirming "that the FERPA rights of “eligible students” lapse or expire upon the death of the student based on common law of privacy rights." [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

[2] Text for this law can be found at: https://www.nysenate.gov/legislation/bills/2019/s5575.

[3] I am writing this on February 10, 2021. 

[4] This "Ask the Lawyer" answer does not address the issue of yearbook photos and student-generated art or academic work.  For that, see RAQ #108 and RAQ #91.

[5] What is "fame?"  It's a notion that is taking odd journeys these days.  As I said in footnote #3, I am writing this on February 10, 2021.  Jockeying with the impeachment proceedings for "fame" on the cover of today's digital New York Times: an article about a lawyer who appeared in virtual court as a cat.  I bet he can't wait for his 15 minutes to be over.

[6] "Directory information" includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

[7] Here is the actual definition: "...those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution."

[8] There are exceptions to this, of course...one big one being the records of campus police.

[9] I value this archive because it has letters between W.E.B. DuBois and Mary Talbert, a Buffalo resident who was a stalwart organizer for civil rights and, on the side, historic preservation (she led the effort to save the house of Frederick Douglass).  I read her letters when I need a shot of pragmatic inspiration.

[10] Some "archives" exist because some wonderful employee couldn't bear to see institutional history thrown out, and they got permission to buy some boxes and put the "archives" in the storage closet. 

[11] The "Ask the Lawyer" from November 4, 2020 has more about ethical considerations for archival projects: RAQ #178.

[12] For this question, "risk" is not just legal risk, but relational and reputational risk, too.  After all, it might be legal to share a harsh evaluation from a thesis committee related to the work of a long-dead student...but is there value in doing it?  (Of course, there might be).  Knowing why something is in the archive, and having full confidence in that reason, is just as important as preserving the record in the first place.

At "Ask the Lawyer," we have tackled "yearbook questions" before: in 2018[1] we addressed patron requests to copy physical yearbooks in a library's collection, and in January of 2020[2] we addressed using scanned yearbook images to illustrate a commemorative calendar. [3]

But I have been waiting for this question for quite some time, and I am sure this scenario has a familiar sound to many readers.

"Yearbook scanning"—the creation of digital versions of yearbooks previously available only in hard copy—has been happening for quite a while now.  However formal or informal such efforts might be, the end result (if made accessible) is a searchable, highly accessible collection of images of people in their formative years[4], who for whatever reason, might see the increased access to their former images as problematic.

Although we don't know the motivation of the person asking the member to remove their name from a digitized yearbook, this scenario shows the apex of this concern: a request to be removed.

At this "apex," a person can make a simple, single request to be removed.  Or, they can be persistent about it--making multiple requests, calls, letters, etc.[5]  Or, if they are available, they can make legal arguments.

I can think of several "legal" arguments a person could bring forward to remove their name from a yearbook in the manner described by the member:

• They are a victim of domestic violence trying to elude an abuser.
• They are a victim of stalking trying to elude their stalker.
• They have specific safety concerns based on the general public's easier access to the content.
• They have legally changed their name and identity for personal reasons.
• They have informally changed their name and identity for personal reasons.
• They feel the use of their image is commercial (not likely if the poster is a not-for-profit library that isn't charging for the content).
• The content is defamatory.[6]
• The content is the result of a crime.
• They have been the victim of identity theft and are attempting to optimize their privacy.[7]

Of course, asking for the "legal reason" a person is requesting removal from a digital, online yearbook puts the library in the uncomfortable position of having to evaluate the validity of the answer.  Let' not go there just yet; instead, let's take a closer look at the member's question:

If the library that scanned and uploaded the yearbook to the internet received permission from the high school to do so (the yearbook is tagged as In Copyright)[8] does the student have a reasonable request? [emphasis added]

The member has used a very, very important phrase to frame this question: "a reasonable request."

"Reasonable requests"—that is to say, requests that might not have slam-dunk legal footing, but still might be a good reason for removal—cannot be analyzed in a vacuum.  In this context, to determine if a request is "reasonable," it must be assessed against the backdrop of the hosting institution's mission, the purpose of the digital collection, and the values and ethics governing both.

That is why for libraries, archives, museums, and historical societies digitizing old yearbooks and other content that can impact living, breathing people, I advise every institution adopt a policy that 1) confirms that the goal of a digitization project aligns with the mission of the institution; 2) confirms how the content will be accessed (will it be added to the catalog to be checked out as an e-book, or be openly accessible as an online archive? etc.[9]; 3) confirms the ethics applicable to the project; and 4) creates an ethics-informed process for raising, evaluating, and acting on any concerns about the content.

For readers out there working in established archives, this ethical framework for selecting, preserving, and enabling access to archival content is already built into your institution's DNA.  However, for many libraries or smaller institutions that are now able to create online collections of easily accessed content through scanning, either to hold on their own servers, or to contribute to a larger initiative--with access unmediated by a library card or on-site access--it may be an area ripe for development. 

For those institutions just arriving at this phase, here is a short sample policy to govern the creation of digital content intended for open access:

Now, with those essential considerations backing us up, here are my thoughts on the member's questions:

A request for removal or redaction of digitized content should be evaluated against the mission and values of the library that created the digital content, the purpose of the digitization project, and the ethics governing the project.

In this case, if the person requested removal without giving a reason aligned with ethics of the library and/or the project, the request should be denied.  On the flip side, if the reason for the request does align with the relevant ethics, it should be redacted or removed.

Here's an easy example of this playing out in the real world:

Every "Code of Ethics" I have seen governing libraries and archives requires that the institution follow the law.  Therefore, if there is a legal reason for removal, it should be done.

Here's a less easy example of this playing out in the real world:

If the request is more vague, like "I just don't want people to be able to find out information about me,"[11] your institution needs to look at the values and ethics it has adopted.  Does personal autonomy and concern for the privacy of living people get a high priority?  If the answer is "yes", there should be a process for redaction or removal.  If the answer is "no," with more priority placed on the integrity of the material, unless there is a legal reason compelling removal, the answer should be, "Sorry, our role is to preserve and make accessible this record in its original form" (or other language regarding integrity of the records, taken from your library’s Code of Ethics).

Personally, although I don't think my yearbooks have anything to hide, I like the option of being able to remove myself from the record until I am dead.[12]  But in saying that, I am expressing a value, not a legal right, and value judgments are harder than legal conclusions.  That is why requests not rooted in solid legal reasons benefit from: a) the library having a strong, consistent guide, like a Code of Ethics; b) applying that guide consistently; and c) ensuring the library has the technical ability[13] to implement your institution's decisions, which are all critical.

Thank you for bearing with me on this answer, I know it is intricate, and perhaps more than you signed on for!  The steps I lay out in this answer are meant to be practical, easy to implement, and designed to help your library document that it is doing its best to balance preservation and access to documents with consideration of privacy and ethics.  That is no simple balancing act, but since requests like the one sent to the member are only likely to increase, it is a good thing to be ready to do.

[1] RAQ #47

[2] RAQ #108

[3] The reply to the 2020 question, after walking the reader through a suggested analysis of the content, states: "This analysis was done because yearbook projects bring up issues of not only copyright risk, but privacy and social issues."

[4] For libraries considering creating a formal archive of digitized yearbooks, this "Ask the Lawyer" answer regarding creating digital archives that include images of children discusses the interplay of legal and ethical issues.  Of course, a yearbook presumes a certain level of both awareness and willing participation, which not all images of minors do.

[5] It pains lawyers to hear this, but not every problem is solved by threatening to sue.  Letter campaigns, online petitions, public shaming, reaching out to people in power...these are non-litigious routes to get relief from problems, too.

[6] I don't just mean that the content makes them look bad, I mean it genuinely meets the criteria for defamation in New York, which is very precise.

[7] One thing the information in old yearbooks can do is help with social engineering of scams to defraud and/or commit identity theft.  "Hi, it's me, Angela, from your high school volleyball team!  Remember, with the red hair?  Yeah, it's me! Hey, can you cash a check for me...?"  Yes, this is exactly how it happens.

[8] Just to confirm: this question has nothing to do with copyright (sounds like the library got the right permission to move ahead with digitization), and has everything to do with the "right to privacy," laws barring use of identity-based content, and ethics.

[9] The difference here is critical!  A yearbook that is digitized and available only as an e-book to be checked out by a patron is very different from an open collection that is available to access and search without borrowing privileges.  This is one reason why archivists have different codes of ethics than librarians.

[10] You will note I do not call this content "archival" content.  As every library council member out there knows, libraries are not archives (although they might have some archives).  That said, in this case, the creation of the digital content is likely to end up in an archive—or a collection that functions like one—and the ethical considerations align almost exactly.  For that reason, the Code of Ethics of a body like the Society of American Archivists might be a good go-to for your policy.  It wouldn't hurt to have a professional archivist on board as a consultant for help evaluating concerns, too.

[11] Remember the person faking being on the volleyball team.  This is not an outlandish concern.

[12] I am already ahead on this.  Having a hatred of head shots, I boycotted my senior picture, a decision that only makes me happier as the years go by.

[13] As the member points out, "removal" in this instance poses a challenge.  In this case, it would be good to explore if "redaction" through an addition of a black bar to the PDF, with an appropriate footnote citing the Statement of Ethics, is possible.

This question is at the vertex of the law and ethics.  What an institution may be positioned to do with archival images legally might not be what our society demands ethically.  And if the issue impacts real people with real feelings, this conflict can lead to legal claims—regardless of solid footing based on precedent and the law.[1]

When it comes to images of children, who can't legally consent to the use of their images, the ethical issues arising from agency, respect, and self-determination are all the more critical.

The member clearly knows this, and is seeking a direction for assessing how to access, catalog, and use them—if at all. The law is often too blunt an instrument to assess ethical questions, but in this case, I believe the legal steps for assessing the use of such such images can provide a framework for the deeper assessment of the ethical considerations[2] .

Below, I will list the "legal" steps an attorney considers when reviewing a museum or archive's acquisition, but focus on the ethical considerations connected to those factors, especially with regard to use of images of children.

1.  Ownership of the Physical Object

This stage is where an institution looks at the provenance of the object and, if that physical object is to be transferred to the institution, addresses the legal priority of making sure the title is "clear."

Ethical considerations: How did the physical object come into existence?  Was the creator a member of the community being documented, an academic, a journalist, or an "outsider?"  Does it appear that parents or guardians were present?  What was the original purpose of the object?  Does any of that information suggest coercion, exploitation, or invasion of privacy?

Or, as the International Council on Archives puts it in Section 7 of their Code:

Archivists...must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.

2.  Ownership of the Copyright

This stage is where an institution looks at the original ownership of the copyright of the image, any transfers of those rights, the use of those rights, if the rights have expired or been transferred to the public domain, and if any of those rights are to be transferred to the institution.

Ethical considerations: Who "owns" the rights to the image?  Are the rights financially valuable?  Have they been put to non-academic, commercial use before, or are they likely to be?  Can your institution accept the rights in a way that limits future commercial exploitation of depicted minors?

Or, as the Society of American Archivists puts it in Section VI of their Code of Ethics:

Archivists may place restrictions on access for the protection of privacy or confidentiality of information in the records.

3.  Manner of Accession

This stage is where an institution looks at the overall package it is acquiring.  In this case, the member has pointed out that the data collection project may have over-stepped some (formal or informal) boundaries.  Other accession challenges can be donor-imposed conditions, environmental factors, and budget concerns.

Or, as the International Council on Archives puts it in Section 2 of their Code of Ethics:

Archivists should appraise records impartially basing their judgment on a thorough knowledge of their institution’s administrative requirements and acquisitions policies.

...and in Section 5 of that same Code:

Archivists negotiating with transferring officials or owners of records should seek fair decisions based on full consideration – when applicable – the following factors: authority to transfer, donate, or sell; financial arrangements and benefits; plans for processing; copyright and conditions of access. Archivists should keep a permanent record documenting accessions, conservation and all archival work done.

4.  Legal Considerations of Content

This stage is where an institution looks for specific concerns caused by the precise content in the materials.  When it comes to pictures of minors, this means assessing if the content is in any way criminal, contains evidence of a crime, if the information suggests they were a ward of the state, if it originated from sealed criminal records, and if the use will in any way be commercial (and thus require permission).

Or, as the Society of American Archives puts it in Section IX of their Code of Ethics:

Archivists must uphold all federal, state, and local laws.

5.  Identity of Person(s) Portrayed

This stage is where an institution looks at the depiction of the real person portrayed in the material and assesses if it poses any additional challenges.

Or, as the Society of American Archives puts it in Section VI of their Code of Ethics:

Archivists strive to promote open and equitable access to their services and the records in their care without discrimination or preferential treatment, and in accordance with legal requirements, cultural sensitivities, and institutional policies.

6.  Alignment with Mission

An archive or museum will always have a mission—or "charitable purpose"—at its core.  This is how it maintains a tax-exempt status, its charter, and its ability to operate.  Does the contemplated use of the content you are focusing on (the images of children) match up with that mission?  Or it is somehow at odds or unaligned with it?

This consideration warrants a repeat of Section 7 of the International Council on Archives Code of Ethics:

Archivists should take care that corporate and personal privacy as well as national security are protected without destroying information, especially in the case of electronic records where updating and erasure are common practice. They must respect the privacy of individuals who created or are the subjects of records, especially those who had no voice in the use or disposition of the materials.

7.  Alignment with Collection Purpose

Just as an archive or museum will always have a mission—or "charitable purpose"—at its core, so will a particular collection have a description that sets out its scope, methods, and purpose.  Does the contemplated use of the content you are focusing on (the images of children) match up with that description?  Or it is somehow extraneous or not quite consistent with it?  If sensitive material is not squarely within the scope of the collection, it shouldn't be there at all.

Or, as the Society of American Archives puts it in Section III of their Code of Ethics:

Archivists should exercise professional judgment in acquiring, appraising, and processing historical materials. They should not allow personal beliefs or perspectives to affect their decisions.

That's great...but what to do?!?

When faced with a sensitive decision like the one posed by the member, a subject-focused analysis based on the above factors is the right way to move ahead, in one of three directions:

• If there is a decision to accession the materials and facilitate access, a written protocol for handling the sensitivities should be made part of the policies of the collection.
• If there is a decision to accession but limit access (something archival values generally counsel against) there should be a clear path through the restrictions and a well-documented justification for the limitations.
• If there is a decision to decline accession, the basis of the decision should be documented in light of the factors impacting the decision.

In this particular case, any of the three above-listed options might be appropriate.  From the brief description provided by the member, it sounds like the photos were joyful documentation of a community by its own members—not exploitive or rooted in dubious practices. 

But even under a "best case scenario"[3] like the one provided by the member, it is appropriate to develop a checklist based on the mission of the institution, and the goals of the collection, to be assured any archival images with minors:

1) will not be subject to commercial exploitation by the institution or a third party accessing the collection (unless there is properly executed permission allowing such use);

2) were not created in a manner inconsistent with the mission, values, and ethics of your institution; or if they were, the collection parameters address those concerns;

3) are included in a manner consistent with the purpose of the collection; and

4) there is a process[4] for any individual or relative to request removal of an image of a depicted minor.  Since such a request would only come after there was a determination that the image was consistent with the values of the institution and fit within the scope of the collection, any evaluation of such a request should be made based on the reasons for the request.

The good news is, the same documentation that shows careful assessment of the ethical factors will help you with any future legal concerns.

And finally, there is one more option for this particular scenario, which is to ask each church to include in their weekly bulletin or routine outreach:

Our church has been selected for inclusion in the ABC institution's online archives. As part of this work, we have provided numerous photos of our events over the years, which include pictures of many of our congregants when they were children. If you have any concerns with your childhood image being included in such a collection, please alert us.  Otherwise, please know that our community records are being preserved for the future!

That way, the church as the original provider of the records can "claw back" any photos that a person might object to, and your archive will have another step in its own records to show it did everything it could to respect people's agency and privacy.

Thank you for a thoughtful question.

[1] A critical example of this issue—use of a person's image in ways that raise question of agency and ethics (to say nothing of basic human decency) is found in the saga of the images of people named Alfred, Fassena, Jem, Renty, Delia, Jack, and Drana, all subjected to enslavement in the 19th century.  The images are commonly called the "Zealey Daguerotypes" and the disputes about them start with how they come into being, as well as how they are used in the present day.  For a good summary of this saga, see https://www.nytimes.com/2020/09/29/books/to-make-their-own-way-in-world-zealy-daguerreotypes.html.

[2] "Established" by recognized authorities, not by me.  My go-to for this will be the Code of Ethics of the Society of American Archivists, found at https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics#code_of_ethics, and the Code of Ethics of the International Council on Archives, found at https://www.ica.org/en/ica-code-ethics.

[3] This "Ask the Lawyer" is only addressing the question about minors...I am not tackling the fact that the rights to the relatively recent photos may be held by still living people, or relatives!

[4] This does not need to be a flagrant "notice and takedown" process; it can be accomplished through a simple statement like: "The ABC Archive [is accredited by/follows the ethics of DEF]; if you are concerned that the depiction of any individual or the inclusion of certain content in this collection is contrary to those ethics, please contact GHI at ### to share your concern."

There are four ways it can be permissible:

1.  Check the license[1] from the publisher and see if the purchase of the physical copies came with any digitization/duplication permission.  You'd be surprised how many rights you buy (or don't buy) when you make that hard copy purchase.  Publishers take a variety of approaches on this, and an individual publisher's permissions may change from work-to-work, so confirm (or rule out) this approach for each work.

2.  If the license does not allow making digital copies, contact the publisher, and see if it can be expanded.  Publishers are now getting many requests like this and may be ready with a simple (and affordable) solution.

3.  I am not a fan of them (they are as outdated and as risky as the Ford Pinto), but the "CONTU" guidelines speak to this issue.  I am including the relevant guidelines, as presented in Copyright Office Circular 21, under this answer.  If one of your precise needs fits one of the "permissible uses" listed in Circular 21, you are all set.

4.  Speaking of CONTU, the first "permissible use" listed in the guidelines may help you out here, with a slight twist on your scenario.  In the event that the physical copies listed in the question are mailed out and not returned as feared, the guidelines allow for emergency copying after the fact (of course, they also require that at some point, you purchase more physical copies, but at least you can get the copies to the students).

Those are my four solutions, based on conventional approaches and current case law.

I'll also throw out a "fifth option" based on a slightly different approach, which, depending on some precise facts, could work for faculty teaching choral classes:

The 110 Solution

Copyright Section 110 allows an academic choral group (if meeting as part of a class) to display "a work in an amount comparable to that which is typically displayed in the course of a live classroom session," during an online class/rehearsal.

How can that help with the member's scenario?

Let's say I am in a class that is working up an a capella performance of "36 Chambers,"[2] as arranged by the composers of the original work.[3]

If the class was still meeting physically, Copyright Section 110(a) would allow us to perform the song and to display the music on the in-class smart board.  In the online environment, the same performance and display could happen via the internet, as allowed by 110(b) (the "TEACH Act")—again, so long as only the amount "typically" displayed in class was shown. 

Whether in-person or online, the rehearsal would include review of the different parts for bass, tenor, alto and soprano,[4] with the relevant music displayed on the screen.  While an academic institution can't tell people to take screen shots of the music displayed for rehearsal purposes, students who want to snap screenshots of a class to take notes is a fact of modern-day academia.  If a student who was told to purchase a copy of their part uses this method to ensure they are practicing on an incremental basis, that's out of the school's control, and the student can make their own claim to fair use.

This type of solution should never be used as a deliberate alternative to the purchase of individual copies.  But so long as the display is incremental and truly a part of the in-class experience, it is a viable option.

I wish all music faculty approaching the Fall 2020 semester many good performances, whether virtual, or face-to-face.  These are tough days for people who love to sing, who enjoy the community of a choir, and who need to hone their vocal art in collaboration with others.  Hunting for music should not add to the burden, and with a few tricks and an awareness of the limits of the law, it doesn't have to.

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Guidelines for Educational Uses of Music

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223.

The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future, and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

Reproduction of Copyrighted Works

Permissible Uses

1 Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

2 For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section¹, movement or aria, but in no case more than 10 percent of the whole work. The number of copies shall not exceed one copy per pupil.

3 Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

4 A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.

5 A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

Prohibitions

1 Copying to create or replace or substitute for anthologies, compilations or collective works.

2 Copying of or from works intended to be “consumable” in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

3 Copying for the purpose of performance, except as in A(1) above.

4 Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above.

5 Copying without inclusion of the copyright notice which appears on the printed copy. (iv)

Discussion of Guidelines

The Committee appreciates and commends the efforts and the cooperative and reasonable spirit of the parties who achieved the agreed guidelines on books and periodicals and on music. Representatives of the American Association of University Professors and of the Association of American Law Schools have written to the Committee strongly criticizing the guidelines, particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the university and graduate level. However, the Committee notes that the Ad Hoc group did include representatives of higher education, that the stated “purpose of the … guidelines is to state the minimum and not the maximum standards of educational fair use” and that the agreement acknowledges “there may be instances in which copying which does not fall within the guidelines … may nonetheless be permitted under the criteria of fair use.” The Committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use. Teachers will know that copying within the guidelines is fair use. Thus, the guidelines serve the purpose of fulfilling the need for greater certainty and protection for teachers. The Committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate, the parties will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months

[1] Checking a license is not an exact science.  Some publisher's use a catch-all that is included on their invoices.  Others put the information right on the music.  Others like to make you really hunt for it, but it is usually part of the sale transaction.  This is why, when making a purchase of music, it is good to take a screen shot or save the paperwork related to the purchase.

[2] Note: To my knowledge this work does not exist, but it is on my wish list of music to hear.  I love it when genres collide.

[3] This new version would be a "derivative work" based on the original, and have its own copyright protection as a musical composition.

[4] We have reached the limit of my choral knowledge.  Is there separate sheet music for mezzo-soprano and counter-tenor?  Probably.  I am sorry, I quit choir in 7th grade.

“Slippery slope,” indeed.  The member has identified a battleground in the “1201 wars.”

“1201” is a Section of the Copyright Act.[1]  It bars working around the anti-duplication protections built into certain types of copyrighted works (software, digital entertainment).  It also bars “trafficking” in the technology that can perform those work-arounds.  DVDSmith appears to sell this technology.

For those of you who don’t want to follow the link in the question, I checked out the DVDSmith,[2] and here is their “About” description:

“DVDSmith Inc. (www.dvdsmith.com) is a multimedia software company that develops and markets DVD copy, DVD ripper programs for both Windows and Mac platforms. DVDSmith products will circumvent the copy-protection schemes used on commercial DVDs and enable you to make copies of store-bought DVDs.”

I puttered around the site a bit, not just taking their word for what they are.  And while I didn’t delve too deep,[3] as the member points out, the particular product linked to the question does boast the ability to enable streaming of non-supported formats to HDTV via the Roku 3.  It claims to do so by enabling the conversion of those files from other formats, a process that can require getting around (“circumventing”) access control technology.[4]

Is such conversion and duplication always wrong?  No.  While 1201 can bar the type of copyright “circumvention”[5] described by DVDSmith, and can also bar anti-circumvention tech,

1201 also creates permanent and temporary[6] exemptions to one or more of the statute’s prohibitions, including exemptions for educators and libraries. 

Here is the text of the permanent exemption for libraries:

(d) Exemption for nonprofit libraries, archives, and educational institutions.

(1) A nonprofit library, archives, or educational institution which gains access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work for the sole purpose of engaging in conduct permitted under this title shall not be in violation of subsection (a)(1)(A). A copy of a work to which access has been gained under this paragraph—

(A) may not be retained longer than necessary to make such good faith determination; and

(B) may not be used for any other purpose.

(2) The exemption made available under paragraph (1) shall only apply with respect to a work when an identical copy of that work is not reasonably available in another form.

…

Is your head starting to hurt?  You’re not alone.

This combination of strong prohibitions and well-defined exceptions creates the “1201 contradiction,” where some circumventions of copyright controls are expressly allowed—but selling to enable them may be illegal. 

There is a ton of thorough analysis out there on “1201,” and this “contradiction.”  It comes from a range of perspectives: the entertainment and software industries (whose general position is that the rules aren’t strict enough), the innovation, information, and academic sectors (whose general position is that the rules are too strict) and government (whose general approach is to try and please everybody, and as usual, makes nobody happy).  

To sample the variety of 1201 analysis, try reviewing the materials at:

https://www.copyright.gov/1201/

…and then reading the materials at:

https://www.eff.org/deeplinks/2018/10/new-exemptions-dmca-section-1201-are-welcome-dont-go-far-enough

Once you recover from the whiplash of these diverging priorities and opinions, you’ll realize anew that just like the Marvel Universe, the Copyright Universe has numerous alternate realities.

To answer the member’s question: what is my take on this?

The member is right to feel cautious about the products offered by DVDSmith, since under 1201, the capability described could violate the law.  But there ARE exceptions to what 1201 bars, and libraries should be ready to exercise them, advocate for them, and make sure they are meeting their needs.

My deepest feeling is that like Section 108, the basics of Section 1201 should be taught in library school, and each librarian ready to advocate for the position they feel serves the public.

Thanks for a great question!

[1] https://www.law.cornell.edu/uscode/text/17/1201

[2] How about a question about copyright protections for the mountain vistas of the Adirondacks, or a trademark on the culture of Martha’s Vineyard? 

[3] It had the same vibe as a site for dubious herbal remedies.

[4] Hello, FBI. No, I did not download the software and do a test run with my “13^th Warrior” DVD.

[5] As defined in the statute, to “circumvent” generally refers to acts such as avoiding, bypassing, removing, deactivating, or impairing tech that prevents copying. See 17 U.S.C. § 1201(a)(3)(A), (b)(2)(A).

[6] The current temporary (triennial) exemptions are here: https://www.federalregister.gov/documents/2018/10/26/2018-23241/exemption-to-prohibition-on-circumvention-of-copyright-protection-systems-for-access-control