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Re: Copyright status of lectures



Looks like a keeper for my copyright file.  Thanks.  S

Sherrill Redmon
Head of the Sophia Smith Collection
Smith College
Northampton, MA 01063
http://www.smith.edu/libraries/ssc
sredmon@smith.edu
Phone : 413-585-2978
FAX 413-585-2886

>>> pbh6@CORNELL.EDU 10/24/00 11:52AM >>>
At 03:18 PM 10/23/00 -0400, Andrew Pollock wrote:
>Dear list members:
>
>The repository that I work in has a substantial collection of lectures
>presented by various members of a local historical society. I would
>like to know if lectures, as a genre, are considered to be published
>(since they were distributed verbally) or unpublished. Does anyone
>know of any black-letter or case law on this topic?

Let's start at the beginning.  With a lecture, the first thing to ask is
whether the lecture is fixed.  If it is not fixed (i.e., not recorded),
then it is not federally copyrightable.  Since you have tapes (I assume
that these are tapes and not verbatim transcripts made from memory after
the fact), the lectures are fixed.  Next question to ask is whether the
recordings were done with the knowledge and approval of the speaker.  If
they were, then the lectures could be copyrighted.  The speaker would own
the copyright in the text; the person making the recording _might_ have a
copyright in the recording.  If the recordings were made without the
knowledge of the speaker, then possibly the lectures do not have federal
copyright protection - though they may still have state common-law
copyright protection.

Once you have determined whether the lectures have federal copyright
protection, then you can look at the date of the recording.  If it was
before 1 March 1989, you can then worry about whether the requirements for
registration of published material were followed. The courts have long
maintained that performance does not equal publication. The question for
you would be whether there was also a general or a limited publication
involved with the lectures.  A non-divesting limited publication is one
that communicates the contents of a work to a select group and for a
limited purpose, and without the right of diffusion, reproduction,
distribution or sale.  I suspect that tapes of the lectures were not
offered to the general public, are therefore at best a limited publication,
and so are considered unpublished.  In the recent "I have a dream" case a
court found that MLK's speech was published and hence in the public domain
since proper registration procedures were not followed.  The appeals court
reversed, however, suggesting that even though copies of the speech were
distributed to the press in advance, it was heard by hundreds of thousands,
and was seen on television by millions, it might still be "unpublished"
under the terms of the 1909 law.  (It was sent back to the lower courts,
but CBS and MLK's estate settled).

In your case, I would bet that the speeches were unpublished, which means
that are still under copyright, having not forfeited their copyrights for
improper registration.  You can see my chart at
<http://cidc.library.cornell.edu/copyright> to figure out when the
copyrights will expire.

Peter "I am not a Lawyer" Hirtle

---------------------------------------------------------------
Peter B. Hirtle
Co-Director                                pbh6@cornell.edu 
Cornell Institute for Digital Collections     607/255-4033 (ph)
2B Kroch Library                                   607/255-9524 (fax)
Cornell University                <http://cidc.library.cornell.edu/>
Ithaca, NY  14853
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