query about copyright

Wed May 24 02:02:45 UTC 2006

Dear Janice,

An excellent survey.

There are two other things that perhaps should be noted here (or if I am
wrong, then my misperception should be corrected).

The first, commonly held by many presses and individuals, is that museums
own some sort of copyright on materials held in their collections.  While it
is certainly true that museums have the right to limit access to items and
even to prevent one from making a photograph, this is a right of possession
and not a copyright.  As such, though they can ask for money to make a copy
of a work for you, they cannot claim to have any copyright interest in a
work (unless it is a work that itself is not in the public domain and for
which they have been assigned the copyright by the artist or his/her heirs).

The second point, and this one is even more vexing, is that, as far as I
understand, a photograph of a two-dimensional object (eg., a painting) in
the public domain is not copyrightable.  So, if a publisher puts out an
album of photographs of, say, Repin paintings, anyone is free to scan any of
the images in that book and use them in subsequent publications.  If they
do, they neither need to seek permission from the publisher nor do they even
have to acknowledge their source.  In the case of the potential lubok volume
you describe, what is copyrightable is the organization and selection of the
lubki, not the individual photographs of any individual lubok.

If presses and journals would agree that these two points are valid, it
would make it a lot easier for people who need to publish illustrations that
accompany articles.

Andrew Wachtel
Northwestern University

On 5/23/06 1:15 PM, "Janice Pilch" <pilch at UIUC.EDU> wrote:

> 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 ³normal² 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 ³normal² 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 don¹t 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

Andrew Wachtel
Dean, The Graduate School
Bertha and Max Dressler  Professor in the Humanities
Director, Center for International and Comparative Studies
Northwestern University
Evanston, IL 60208

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