Student Works

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.

There are some really good, separate answers to this question.  I'll present them in the order I think would be useful to students and academics.

Answer #1: Clarity of ownership

Students own the academic work they author.  Even if they are completing an assignment with requirements tightly prescribed by a syllabus (such as: "Write an essay about four different civil rights cases heard in 2019; no more than 2,000 words; cite no less than four peer-reviewed law journal articles commenting on each case; identify a shared theme of the cases; conclude with a short paragraph as to which case is your favorite and why."[1]), the end result--if the student is the  only writer--is the student's.

Registration is not necessary to claim a copyright any more, but it remains strong evidence as to the ownership of a work.[2]  A student who authors something of importance to that student (such as a thesis, or a student film) should consider registration so they can readily assert that ownership.

Answer #2: Publicly establishing co-authorship

Not only do students own the copyright to their academic work, but students who are co-authors own that copyright together. 

This is true even if co-authors take on different tasks (such as: "Student 1 summarizes two cases, Student 2 summarizes two cases; each summary is 250 words; each cites to eight articles; they flip a coin to see whose paragraph on their favorite civil rights case is in the final version, and they proofread, edit, and finalize the document together."[3]), the end result--if they combine their work into a single whole--is the students'.

This is also true of students collaborating with a faculty member or a faculty research partner--even if one author/researcher has more experience than the other.  So, while most academic collaborations might not warrant the time and expense of registration, if the end result could be valuable (either financially, or as an academic credit in a published journal or on a CV) the co-authorship should be established in a written collaboration agreement, and confirmed with a joint registration.

Answer #3: Being able to quickly fight infringement

Before I dive into this one, a bit of commentary on copyright and academia:

The world of copyright--and of students taking credit for their artistic and academic expression--is changing: more and more authors are authorizing audiences to use their work through mechanisms such as an “open license” through the Creative Commons.

As a person who (still) believes that "information [still] wants to be free," I see this trend as a positive, but I do have one concern with this generous/generative approach: sometimes, the use of the work might be...wrong. 

What do I mean by this?  While an author might assume that anyone wishing to use their work would do so for a reason that aligns with that author's own perspective, values, and vision, that is simply not always the case. Sometimes, a person or organization could make a use of a work that is simply unacceptable to the author.[4]

Authors who think they could be impacted by this type of concern should consider using a copyright notice together with an easy way for would-be users to request permission, rather than an “open license.”  With this approach, an author/owner can still enable use, but will have a bit more control over what their work is associated with.[5]

The concern over work being used in a way that is objectionable to the author (and isn’t a fair use), is one of the biggest reasons to register a copyright: if a writer/photographer/muralist/etc. really wants to stop someone from infringing their work, that work's copyright must be registered, because that is the only way an author can sue for infringement and obtain an injunction.[6]

 Answer #4: Money

My final answer is 100% financial.

As the member's question states, authors no longer have to make a registration to claim a copyright. So what is the motivation to register?  In addition to answers "1" through "3," above, if a student/copyright owner, finding that their work has been infringed, wants to be able to sue for "statutory"^[7] damages, actual damages,[8] and attorney's fees, they need to have completed the registration of a published work prior to the infringement. 

Among many other things, these “statutory” damages, and the ability to recoup the costs of enforcement, are a motivation for a copyright attorney to take your infringement case without needing an up-front deposit.  So, it's another tool in the toolbox of copyright enforcement.

Final question

I believe answers "1" through "4" take care of the member's last two questions.  But what about the first one:

When is it advisable for an author/creator to register a work with the copyright office?

I don't usually play this card on "Ask the Lawyer," but I have to say, this is an almost unanswerable question.

For some people, the mere prestige of being able to look up their registrations at copyright.gov is important.

For others, the certainty of knowing they've done everything they can to protect their work from mis-use is critical.

And for still others--especially those planning to support themselves and their families through their intellectual property--registration is an important habit to ensure they are protecting their valuable property.   After all, copyrights are property rights left to a person's heirs after they die, just like money in the bank and real estate.

When I advise a client to register a Copyright, it is because they have flagged that work as important for some reason. For some, they might have already self-published it, and want to be able to control how their work is used. For others, it is because they plan to shop it or sell it, and they want to have optimal protection before they share it. And for others, it is because they suspect that the work has that "special something," and people in the future may copy it.

Any of these, and more, are valid reasons. For students, and those working in academia, the important thing is to be aware of your full body of work, to have clarity about its ownership, and --when you know you've created and own something important to you—to protect it.

Thank you for making sure today's students are thinking about their work and their intellectual property.

[1] Assignments like this are why students have either loved or hated my classes, AND why I never have to rely on a utility like "Turnitin" to detect cheating.  You just can't fake selecting a favorite civil rights case.

[2] The basics of registration, including the basic elements it asserts, are in "Circular 2" found at https://copyright.gov/circs/circ02.pdf.

[3] Back when I was in law school this type of group work drove me crazy.  I am a good team player professionally, but group academic work brought out the lone wolf in me.

[4] For example, a person who takes photos at a "Black Lives Matter" march, hoping the images will boost support for criminal justice reform, finds that their photos are being used by a political candidate who portrays the marchers as "the enemy."

[5] To carry forward my example, license for the photos could say "© NAME, 2020, to be used only with attribution and only after written permission.  For permission, please write to ADDRESS.  The author generally gives permission to those whose use will align with the author's values and agree to attribution."

[6] An injunction is a court order to "cease and desist" infringing use of the work.

[7] "Statutory damages" are those big numbers you used to see at the beginning of movies on video and DVD.  And although both mediums are quickly becoming a relic of the past, damages with fixed amounts set by law are not.

[8] The "actual" costs and damages created by the infringement.