Archival Materials and Copyright Ownership

June 2003

Identifying, tracking and managing archival items is a huge issue for library and archival collections.  Although copyright is just one part of archives management, it is a critical one.  Maintaining an inventory of the artifacts is something libraries historically do well, but identifying the rights the institution has in each item, managing these rights, and explaining them to users presents considerable challenges.  One of the problems concerns the difference in ownership of the physical item and ownership of the copyright.

The copyright in a work such as a letter or diary or other one of a kind item is in the literary work; the tangible object in which the literary work is embodied might be a typed letter, a computer disk or a handwritten journal.  Librarians and archivists have not always understood this distinction which has resulted in problems for the institution and confusion on the part of those charged with managing archival works.  

The status of many of the items in an archival collection is uncertain due to poor record keeping, especially in the early days.  Consider a common example where the owner of a letter from a literary figure donates that letter to a library.  The deed of gift relates only to the transfer of the physical object – the letter – and normally does not deal with transfer of the copyright.  Today, librarians are more likely to recognize that the library may own the only existing copy of a letter but that such ownership does not confer the copyright in the work to the library.  As a matter of fact, the donor of the letter is more likely to be the recipient of the letter and not the author, and thus the recipient does not hold the copyright and cannot transfer it to the library.  Recipients of letters have often assumed that since the letter was sent to them, they owned the copyright.  If the donor is neither the recipient of the letter nor the author, she is less likely to assume that as the holder of the letter she owns the copyright unless she is the heir or other beneficiary of the author. 

A typical situation for a library was illustrated by the Salinger case[1] in which a donor, the recipient of letters from the reclusive author J.D. Salinger, gave letters written by Salinger to a library.  The case dealt with Salinger’s attempt to prevent publication of these unpublished letters and was the first in a series of cases holding that the fair use doctrine had only limited application to unpublished works.[2]  The library owned the physical copy of the letters which the donor recipient had given to the library; Salinger, however, owned the copyright in the letters and was able to restrain publication of these letters by a scholar who was writing an unauthorized biography of Salinger.  The court focused on the author’s right of first publication to hold that publishing these unpublished letters was not fair use.

Many libraries and archives have behaved as if they do hold the copyright to the archival materials they own.  They often require scholars who seek access to the item to sign a contract that gives the scholar the right to publish the item (such as a photograph) in a work he is writing.  If the archival collection does not hold the copyright, then it has neither the right to publish the work nor to grant a researcher permission to publish.  Sometimes, these works have even been public domain works and yet the library has required scholars to seek its permission to publish the work.  Certainly, a library or archives may control access to a work in its collection.  In fact, the institution may totally prevent access to the work for a number of reasons due to the fragility of the artifact, restrictions placed on access by the donor at the time the object was donated or simply because institution wants to restrict access.   The reason most archival collections exist, however, is to make publicly available the works they house, and institutions do not want to deny the public access to the work.  So, restrictions beyond protecting the physical integrity of a public domain work is beyond what the institution owns.  Unless the library also holds the copyright in a work, it really cannot restrain publication but should refer the person seeking to publish the work to the copyright holder.

Sometimes the library or archives does own the copyright.  For example, a novelist, donates her papers consisting of letters, published and unpublished manuscripts, research notes, and the like, to a library, and she may also transfer the copyright to the institution.  The deed of gift of the physical item usually does not include the copyright, so it requires another document to transfer the copyright.  Just as with all transfers of ownership, the transfer should be in writing.  When an author transfers the copyright to all of his works, both published and unpublished, it is an ideal situation for the library, but it is decidedly not the most probable scenario.  For published works, most likely the author assigned the copyright to the publisher, and copyright in these works will continue to be held by the publisher.  For unpublished manuscripts and letters, however, the author may directly transfer the copyright to the library or archives, and some have done so.

Why would a library or archives want to hold the copyright in these artifacts?  First, the library can publish these works either in print or as a digital work.  Second, it can control other reproduction and distribution of copies of the works by publishers educational institutions, museums, etc.  Third, it gives the library a potential income stream through licensing certain uses of the works or from selling copies of the works it publishes.  Many libraries and museums reproduce works of art on which it holds the copyright on tee-shirts, notecards, posters, bookmarks, etc., and sell these in the museum or library store.  Finally, a library may want to hold copyright in a work is in order to maximize its investment, especially if the artifact was purchased and in order to maximize its cache as the institution that owns such a unique object.

Donors may place restrictions on use of the work even if the copyright is transferred to the library.  In other words, in order to acquire the item, often libraries and archives agree to restrictions such as not making the work available for a certain number of years.  Although normally the owner of the copyright owns all of the exclusive rights, in order to acquire the work and its copyright, the institution may agree to refrain from exercising certain rights for a period of time.

Libraries that work with donors to acquire works on which the donor holds copyright should consult with legal counsel and should be honest with the family about the effect of transferring the copyright to the institution.  Further, the institution needs a policy in place to deal with archival materials of both types:  those on which it does not hold the copyright and those on which it does. 

 


[1]               Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987).

 

[2]               Others of these cases included New Era Publications Int'l v. Henry Holt and Co., (New Era I), 873 F.2d 576 (2d Cir. 1989) and Wright v. Warner Books, 953 F.2d 731 (2d Cir. 1991).   In 1992 Congress amended  § 107 of the Copyright Act to make it clear that unpublished works were subject to fair use just a published works are.  Courts are directed to apply the four fair use factors to unpublished works as well.