query about copyright

Tue May 23 18:15:55 UTC 2006

Dear Natalie,

Public domain status is based on the law of the country where 
the work is being used. A work can be protected in one 
country and in the public domain in another, and determining 
this involves a number of factors. Do you intend to make use 
of the works in the U.S. or in Canada?

If there is an identifiable author, that author holds the 
initial rights, but the individual may transfer those rights 
to any other party, for example, to a publisher, or to an 
heir or other assignee, at any time. If an eligible work is 
anonymous, it still qualifies for copyright protection, and 
that copyright term is usually based on the date of creation 
or publication.

If lubki or lubki-type works are reproduced in books, and the 
original works are protected, the individual authors (or 
their assignees or hers, etc.) hold the copyright. In 
addition to this, there may be a copyright in the book as a 
whole, as a compilation. In this case, the original author 
(or assignee, heir, etc.) holds the copyright to the original 
images, and the editor or compiler holds the copyright to the 
compilation, as a derivative work. If the original works are 
not protected, the compiler still holds the rights to the 
compilation.

In the case of folk works, there are additional 
considerations. Folk works are a gray area in copyright law 
today, not all the issues have been resolved. Some nations 
treat folk works differently from “normal” works, by 
stipulating in their copyright law that folk works are 
protected, or the opposite-- that they are not. General 
characteristic of folk works are that they have no 
identifiable authors or dates of creation, they are 
unpublished, and in the case of oral works, they are not 
fixed in material form. 

So if any of the lubki or lubki-type prints you wish to use 
have identifiable authors or dates of creation, they should 
be treated as “normal” works and not as folk works, and the 
provisions of U.S. or Canadian law will apply if you intend 
to use them in either country. If the lubki are truly 
anonymous and don’t have dates of creation, they can more 
likely be considered true folk works, and lucky for you:

The Russian Federation (where I assume all the lubki you want 
to use originated) does not extend copyright protection to 
folk works, and the USSR did not at any time provide 
protection to works of folk expression. The U.S. does extend 
copyright protection to expressions of folklore as original 
works of authorship fixed in a tangible medium of expression. 
In Canada the scope of copyright protection for works of 
folklore is grayer.  However, because the lubok tradition 
ended in the early 20th century, lubki would not have 
received protection in the U.S. or Canada under the Universal 
Copyright Convention because the USSR joined that convention 
in 1973. And they would not have had their copyright restored 
under the Berne Convention in the U.S. or Canada because they 
were not protected in the RF on January 1, 1996. So, all this 
leads to the answer: real lubki are not protected today in 
the RF, U.S. or Canada.

Compilations of lubki may be protected as derivative works, 
depending on when and where they were first published. If a 
compilation is still protected, you are not authorized to 
reproduce the selection or arrangement in whole or large part 
without permissions, i.e. you cannot reprint a published 
collection of lubki if it is still copyrighted. But the 
individual prints would not be protected.

The key thing for you is to make sure that you are dealing 
with real lubki as folk works and not lubki-style prints that 
can be attributed to an author or that have a defined date of 
creation. And it is important to distinguish between original 
works of folklore and compilations of folklore, which may 
qualify as derivative works, in order to make the appropriate 
assessments on copyright protection.

Finally, I am offering this advice as chair of the AAASS 
Bibliography and Documentation Subcommittee on Copyright 
Issues. I have to add the customary disclaimer that I am not 
a lawyer and not authorized to give legal advice. The above 
information should not be taken as legally binding, but only 
as informal assistance to provide some direction for you. 
Please feel free contact me directly if you have any further 
questions!

Sincerely,

Janice Pilch

---- Original message ----
>Date: Thu, 18 May 2006 14:53:05 -0600
>From: nataliek at UALBERTA.CA  
>Subject: [SEELANGS] query about copyright  
>To: SEELANGS at LISTSERV.CUNY.EDU
>
>Dear Fellow list members,
>
>I'm looking for some illustrations and would love to use 
lubki.  I know 
>that a number of folklore books have used lubki as 
illustrations.  Here 
>is the question (or rather questions): are lubki in the 
public domain?  
>If not, who holds the copyright?  What about lubki that have 
been 
>reproduced in books?  Who owns those?
>
>On a related topic, does anyone know of books with drawings 
that could 
>be used to illustrate Slavic folklore?  I have found photos 
that are 
>outside copyright restrictions.  But some drawings would be 
nice, 
>especially for beings of the imagination like the 
domovoi/domovyk, 
>leshii/lisovyk, etc.  Again, these have to be in the public 
domain.  
>This means published before 1923.
>
>Thanks in advance.
>
>Natalie Kononenko
>
>Kule Chair of Ukrainian Ethnography
>University of Alberta
>Modern Languages and Cultural Studies
>200 Arts Building
>Edmonton, Alberta, Canada T6G 2E6
>Phone: 780-492-6810
>Web: http://www.arts.ualberta.ca/uvp/
>
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Janice T. Pilch, Assistant Professor of Library Administration; Acting Head, Slavic and East European Acquisitions; Librarian for South Slavic Studies, Baltic Studies, and Slavic Languages & Literatures
University of Illinois at Urbana-Champaign 
1408 West Gregory Drive, Urbana, IL 61801 
Tel. (217) 244-9399