FW: Russian copyright law and 1930s magazines

[Brewer, Michael]

Dear Katerina,

This message is kindly being posted by Michael Brewer on my behalf. I’m happy to help you with this question, as Chair of the AAASS Subcommittee on Copyright Issues. I must provide a disclaimer that these views are my own, they do not represent the policies or positions of the University of Illinois or of AAASS, and that they are not offered as legal advice but just as collegial communication. Please see the disclaimer at the end of this message.

The relevant law is the law of the country where the work is being published. Are you publishing this article for a U.S. publisher? If so, U.S. copyright terms apply. If any of the images were first published before 1923, they are in the public domain today in the U.S. and you would be free to use them.

In order to determine the copyright status of a work, some essential facts have to be gathered, including year and country of first publication. You say these were published between 1929-1936—it might be worth finding out if they were first published earlier, who knows, they might have been. But if, not, then we need to know for sure that they were first published in the RSFSR. 

There are two avenues for a foreign work published in that period to be copyrighted today in the U.S.—but only one is relevant for a work first published in the USSR by a non-U.S. citizen in that period: copyright restoration under  Section 104A of the U.S. copyright law. That involves a calculation based on both U.S. and Russian Federation copyright law. In a nutshell (assuming each work was first published in that period in the RSFSR), if the work was protected in the Russian Federation on January 1, 1996, then its copyright could have been restored in the U.S. for the U.S. term of 95 years from publication.

To determine that you need to know for each image who the photographer was and when s/he died. The calculation involving Russian law is generally done on the basis of the term of 50 years from author’s death. For example, if one of the images was taken by a photographer who died in 1950, it would have been protected in the RF on January 1, 1996 (1950 + 50=2000). If the photographer died in 1940 the work would not have been protected in the RF on that date. 

There are exceptions to this calculation of copyright--persons who were politically rehabilitated have copyright terms in the RF based on date of rehabilitation, and people who worked or served in WW2 get 4 extra years of protection. This all goes into the calculation.

If the work was copyrighted on this basis in the RF on January 1, 1996, it got restored in the U.S. for a term of 95 years from publication. If not, then not. 

If the photographer is unknown-- if any of the images is truly an anonymous work-- then the Russian term for anonymous works applies, that is, the term in the 1993 RF law: 50 years from first publication. If these works are truly anonymous and were published in the date range you indicate in the RSFSR, then they were in the public domain in the RF on January 1, 1996 and were not restored in the U.S. and are in the public domain today in the U.S.

All of this information is based on the assumption that the copyright in the images was indeed held by the photographer and that there was no special contractual situation that might have defined the initial copyright holder as another person or entity. That is unlikely, but possible. 

Also, this information is based on the rough facts in your e-mail, and cannot really be definitive without all the facts. This is a rough estimate. Doubts often arise in these copyright assessments and sometimes you are never sure of the copyright status. There could be other factors of which we are not aware. It looks to me like these images might be in the public domain, but more info is needed to gain more certainty.

It’s likely that the current Krestianka holds the copyrights for the Soviet entity, you will need to find that out if the works are copyrighted. This brings us to the really fun part: Will they answer? Will you receive a legally correct reply? It’s hard to say. There is a lot of misinformation out there and you may or may not get a (straight) answer. Do you even need to contact them? Not if the works are in the public domain.

>In short, do I have to get the reproduction permission for the material originally published in mass >periodical press in Russia/Soviet Union at least 70  years ago and where do I get it?

In the U.S. reproducing, publicly displaying, publicly distributing copyrighted works is the exclusive right of the copyright holder unless the use can qualify under an exception. The exception available to you in this situation is fair use. 

Some would argue that publishing a few photos in a scholarly article is a fair use. Others would argue that it is not, or that it is risky, and advise that permissions be obtained. This is particularly true of publishers of electronic journals. There is so much written about fair use—I suggest this website as a source: it's the website of Prof., kenneth Crews at Columbia University, http://copyright.columbia.edu/fair-use-university.

Fair use involves a determination that you make, based on a reasonable assessment of the purpose of the use, nature of the work, amount being used, and market or potential market for the works in question. There is no ultimate answer as to whether a use is fair except for the court’s decision if you are sued. And so you are left to a decision on your own, but the decision may be affected by the publisher’s policy on fair use.

Many publishers will not accept third-party works in scholarly publications without evidence of permission. See how liberal your publisher is about fair use, that is important to know and will help you to decide what to do.

I think the most promising avenue is to see if you can determine of the works are indeed anonymous. If there is no way to determine who the photographer was, if they are really anonymous, then that will likely put them in the category of public domain works—likely, because, again without all the facts, I hesitate to say anything for sure.

I hope this information helps you to navigate and to work on a couple of possible avenues. Please let me know offline if you have further questions. The AAASS Subcommittee on Copyright Issues is involved in copyright education and we help out whenever possible.

Sincerely,

Janice Pilch
Chair, AAASS Bibliography and Documentation Subcommittee on Copyright Issues
Associate Professor of Library Administration, Humanities Librarian, 
University of Illinois at Urbana-Champaign 
Visiting Program Officer in International Copyright, 
Association of Research Libraries
E-mail: pilch at illinois.edu

Although this message may provide information concerning copyright legal issues, such information is not intended to constitute or to be a substitute for legal advice from qualified counsel. The sender of this message is not engaged in rendering legal services or advice by providing the information, and assumes no responsibility for consequences relating to any action taken based on the information provided above.

>-----Original Message-----
>From: SEELANGS: Slavic & East European Languages and Literatures list [mailto:SEELANGS at BAMA.UA.EDU] On Behalf Of Katerina Romanenko
>Sent: Tuesday, October 13, 2009 2:12 PM
>To: SEELANGS at BAMA.UA.EDU
>Subject: [SEELANGS] Russian copyright law and 1930s magazines
>
>Hi, 
>Sorry, another question concerning reproduction rights...
>
>I need to publish some images from "Krestianka" journal from 1929-1936.
>According to MIT press "Public domain articles are 1923 and older," yet according to Russian the Copyright law  "a general duration of copyrights of 50 years beyond an author's death, or 50 years since the publication of an anonymous work." 
>What about articles and magazine illustrations and design (in most cases anonymous)?
>Would contemporary "Krestianka" have the copyrights for the Soviet period?
>In short, do I have to get the reproduction permission for the material originally published in mass periodical press in Russia/Soviet Union at least 70  years ago and where do I get it? 
>
>Thanks.
>Katerina Romanenko
>Art History
>Graduate Center CUNY
>New York NY
>k.romanenko at yahoo.com
>------------------------
---------------------------------------
Janice T. Pilch
Associate Professor of Library Administration, Humanities Librarian,
University of Illinois at Urbana-Champaign
Visiting Program Officer in International Copyright, 
Association of Research Libraries
University Library 425B
1408 W. Gregory Drive, 
Urbana, IL 61801  
Tel (217) 244-9399
Fax (217) 333-2214

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