Avoiding the golden fleece: Licensing agreements for archives

American Archivist

Volumn 67, Issue 1, 2004, Pages 58-85

  Loe, Nancy E ^a  

^a NONE

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[No Author keywords available]

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EID: 77956034459     PISSN: 03609081     EISSN: None     Source Type: Journal    
DOI: 10.17723/aarc.67.1.341n71ru50661152     Document Type: Article

References (57)

1. Licensing Your Intellectual Property Rights, Stites & Harbison, PLLC, available at http://bsd.iplawky.com/ wcsb/licensin.htm (accessed 19 January 2004).
2. Michael S. Shapiro and Brett I. Miller, A Museum Guide to Copyright and Trademark (Washington, D.C.: American Association of Museums, 1999), 123.
3. Karen Underhill, "Digital Dilemmas: Access and Ethics," Society of California Archivists workshop, May 1995.
4. Jack W. Plunkett, Plunkett's Entertainment & Media Industry Almanac (Houston: Plunkett Research Ltd., 1999), 11.
5. Microsoft Press Computer Dictionary: The Comprehensive Standard for Business, School, Library, and Home (Redmond, Wash.: Microsoft Press, 1994), 264.
6. Jack W. Plunkett, Plunkett's E-Commerce and Internet Business Almanac 2001-2002 (Houston: Plunkett Research, 2001), x.
7. Discovery Channel Network Homepage, Discovery Communications, Inc., http://dsc.discovery.com/ (accessed 19 January 2004).
8. Ann S. Dinerman, "Restructuring Discovery's Many Worlds; Discovery Communications, Inc.," Video Age International, February 1996, 26.
9. "Procter & Gamble and Discovery Communications, Inc. Announce Cross Platform Media and Marketing Deal," Financial Times Information, 21 June 2002.
10. "A&E Television Networks," Hoover's Online, http://www.hoovers.com/co/capsule/5/0,2163,47295,00. html (accessed 19 January 2004).
11. The History Channel actually had, "one million subscribers, an extremely modest beginning," when it launched in January 1995. " 'We had forecast that we would get to 4.5 million subscribers by the end of 1995,' said Daniel E. Davids, the general manager of the History Channel. 'We wound up at eight million.' " One reason postulated by Thomas S. Rogers, the president of NBC Cable, for the early success of the History Channel: " 'It seems there is a very high correlation of cable operators who were also history majors in college.' " Bill Carter, "For History on Cable, the Time Has Arrived," New York Times, 20 May 1996.
12. "An Analysis of Economic Models for Administering Museum Intellectual Property," Canadian Heritage Information Network (CHIN), 27 April 2002 http://www.chin.gc.ca/English/Intellectual-Property/Economic-Models/ introduction.html (accessed 19 January 2004).
13. Kristi Ellis, "Developing CD-ROMs from Scratch," Los Angeles Business Journal, 13 February 1995, 23.
14. Ellis, "Developing CD-ROMs from Scratch," 23.
15. Ronald Laurie, head of the computer law group in the Menlo Park, California, office of Weil, Gotshal & Manges noted, "You can't possibly pay a little bit to thousands of people, no matter how little, and make a profit." Susan Orenstein, "Digital Multimedia Madness," Legal Times, 13 September 1993, S29.
16. Rick Prelinger, "Archival Survival: The Fundamentals of Using Film Archives and Stock Footage Libraries," http://www.footage.net/info/ archival-survival.html (accessed 19 January 2004).
17. Richard Raysman and Peter Brown, "Multimedia Licensing," New York Law Journal, 13 July 1993, 3.
18. "High Noon Productions Acquired Footage/Still Photograph Agreement," facsimile sent 27 March 2001.
19. Untitled agreement, Casa Grande Productions, Inc., facsimile sent 21 September 2000.
20. See William J. Maher, "Current Issues in Copyright Law and Archival Administration," Archival Issues, forthcoming, 2003.
21. Maher's SAA workshop, "Copyright: The Archivist and the Law," also provides an excellent and specific grounding in intellectual property issues relating to archives. Shapiro and Miller, A Museum Guide to Copyright and Trademark is also helpful.
22. Licensing Your Intellectual Property Rights, http://bsd.iplawky.com/wcsb/ licensin.htm (accessed 19 January 2004).
23. Mark F. Radcliffe, "Licensing Issues in the New Economy," The Computer & Internet Lawyer, September 2001, 1.
24. "The definition [for intellectual property] has not evolved far from an 1845 court case, the date of the first recorded usage of the term. 'Only in this way can we protect intellectual property, the labors of the mind, the productions and interests as much as a man's own . . . as the wheat he cultivates.' " Denise K. Fourie and David R. Dowell, Libraries in the Information Age: An Introduction and Career Exploration (Greenwood Village, Colo.: Libraries Unlimited, 2002), 206.
25. Black's Law Dictionary also include "publicity rights, moral rights, and rights against unfair competition" under the rubric of intellectual property. Bryan A. Garner, ed. Black's Law Dictionary 7th ed. (St. Paul, Minn.: West Group, 1999), 813.
26. Laurence R. Hefter and Robert D. Litowitz, "What Is Intellectual Property?" http://usinfo.state.gov/ products/pubs/intelprp/ (accessed 19 January 2004).
27. Of the many Web resources on U.S. copyright law, the University of Texas site is notably useful: http://www.utsystem.edu/ogc/intellectualproperty/ cprtindx.htm (accessed 19 January 2004).
28. For Canadian copyright issues, the Canadian Heritage Information Network (CHIN)'s intellectual property site, produced in cooperation with the Virtual Museum of Canada, is a model of clarity: http://www.chin.gc.ca/English/ Intellectual-Property/Economic-Models/introduction.html (accessed 19 January 2004).
29. 17 USC § 106. Cited on the Library of Congress Web site: "Copyright Law-Chapter 1," Copyright Office, Library of Congress, http://www.copyright.gov/title17/92chap1.html#120 (accessed 19 January 2004).
30. For related museum acquisitions issues, see Marie C. Malaro, A Legal Primer on Managing Museum Collections (Washington, D.C.: Smithsonian Institution Press, 1985), 113-21.
31. For a more choleric view of institutional control over reproduction of items in the public domain, see Kathleen Connolly Butler, "Keeping the World Safe from Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control Art Images in the Public," Hastings Communications and Entertainment Law Journal 21 (Fall 1998): 55.
32. Shapiro and Miller, A Museum Guide to Copyright and Trademark, 185.
33. "Permission to Use Reproductions of Materials," (San Antonio: University of Texas at San Antonio, undated).
34. "Application for Permission to Publish and/or Reproduce," Cline Library Special Collections and Archives Department, Northern Arizona University, Flagstaff, Arizona, at http://www.nau.edu/∼cline/ speccoll/exhibits/sca/using/forms/publish.html (accessed 19 January 2004).
35. Privacy rights are not a new concept. In 1902, Abigail M. Roberson sued a company for using a lithograph of her face on 25,000 advertisements for flour without her permission. A recent (perhaps lighthearted) example of a privacy suit: "When a 1970s photo of [Skip] Johnson cropped up in ads for a San Francisco dot-com, with his head filling a two-page spread that poked fun at [his] bushy mane, it sent him on a trip-straight to San Francisco Superior Court. . . . [Johnson's attorney] said his client had [once] been married . . . to Jefferson Airplane singer Grace Slick . . . who first noticed the photograph. . . . Johnson's lawsuit . . . includes claims for alleged libel, misappropriation of likeness and infliction of emotional distress. Johnson wants unspecified damages, along with a court order that would force the company to stop using the photo in advertisements." Peter Hartlaub, "S.F. Dot-Com Is Sued Over Big Hair Ad; Firm Used 'Do Without Permission, Suit Says," San Francisco Chronicle, 29 May 2001, B14.
36. Malaro, A Legal Primer on Managing Museum Collections, 121. Malaro also addresses additional rights artists have pertaining to their work that are too complex for treatment in this paper, but worth noting here in brief: droit de suite (a property right an artist enjoys from the resale of his/her work) and droit moral, which "assumes that every work of art carries with it the distinctive imprint of its creator, and hence, the fate of the work and the reputation of the artist are inextricably bound." Moral rights thus provide the artist with the right to prevent the misuse of his/her work. Both droit de suite and droit moral are recognized in several foreign countries, but are not widely accepted in this country, with the exception of California and New York State (moral rights only).
37. Mark F. Radcliffe, "Old Content in New Bottles: Interpreting Pre-Existing Agreements in the Online World," Entertainment Law Reporter 17 (January 1996).
38. For more information on implementing Section 108 notices, see "Copyright Notices for Supervised Library Copying: Updated Information for Library Services," Copyright Management Center, Indiana University and Purdue University, http://www.copyright.iupui.edu/super-copying.htm (accessed 19 January 2004).
39. Carol Noonan and Jeffery Raskin, "Intellectual Property Crimes," American Criminal Law Review 48 (Summer 2001): 971.
40. Needham J. Boddie II, Thomas C. McThenia, Jr., Fred B. Amos II, and Douglas W. Kim, "A Review of Copyright and the Internet," Campbell Law Review 20 (Spring 1998): 193.
41. Steve Silberman, "Paramount Locks Phasers on Trek Fan Sites," Wired News, 18 December 1996 at http://www.wired.com/news/culture/0,1284,1076, 00.html (accessed 19 January 2004).
42. Theodor Seuss Geisel quoted in David Handelman, "Curiouser and Curiouser," The New York Times on the Web, 16 May 1999 at http://www.nytimes.com/books/99/05/16/bookend/bookend.html (accessed 19 January 2004).
43. Kirstin Downey Grimsley, "The Cat in the Hat Strikes Back; Seuss's Widow Licenses Characters in an Effort to Protect His Legacy," Washington Post, 3 March 1994.
44. Barbara Hoffman, "Caught in the Legal Web," Art News, March 1996, 100.
45. David Bouder, "Martin Luther King's Estate Sues CBS News," AP wire story via Lexis-Nexis, 20 November 1996
46. and "King Estate Sues CBS Over Copyright," Los Angeles Times, 20 November 1996.
47. Linda Daniels, "IP Lawyer: King, CBS Agreed to Cross-Licensing, " Fulton County Daily Report, 14 July 2000.
48. "Intellectual Property Rights in Cyberspace: In a Landmark Trial by Jury, SuperStock Successfully Defeats Opponent in Copyright Infringement Law Suit," Intellectual Property Today, May 1998, 36.
49. Attorney Mark Radcliffe advised his business clients to "try to obtain broad rights to exploit a work. The parties must also determine how to share responsibility, costs, and damages for infringement, particularly for 'parts' of the work. For example, who pays for and controls litigation if an infringer only takes a photograph out of an interactive program? How will the monetary damages, if any, be shared?" Mark Radcliffe, "Legal Issues in New Media Technologies," Computer Lawyer, December 1995, 1.
50. Archivists with sound and motion picture materials may want to retain the right to limit the length of audio or video segments used in one product because "an extended audio or video segment in the product could effectively supplant the demand for future exploitations of the work such as recordings, movies or videocassettes." Raysman and Brown, "Multimedia Licensing," 3.
51. Corbis is frequently mistaken as a subsidiary of Microsoft Corporation, but actually is privately owned by Bill Gates. "The privately-owned company is headquartered in Seattle, with offices around the globe in Asia, Europe and the United States," Corbis Overview, http://www.corbis.com/corporate/ (accessed 19 January 2004).
52. "Huge Photo Archive Bought by the Chairman of Microsoft," New York Times, 11 October 1995.
53. Barbara Hoffman, "The Legal Web and the Virtual Gallery," New York Law Journal, 22 March 1996.
54. Corbis-Stock Photography and Pictures at http://pro.corbis.com/ (accessed 19 January 2004).
55. "An Analysis of Economic Models." "Illustrating Options: Collective Administration of Intellectual Property for Canadian Cultural Heritage Institutions," Canadian Heritage Information Network (CHIN), 27 April 2002, at http://www.chin. gc.ca/English/Intellectual-Property/ Illustrating-Options/index.html (accessed 19 January 2004).
56. MESL Press Release, 23 December 1994. Contributing institutions: Fowler Museum of Cultural History at the University of California, Los Angeles; International Museum of Photography at George Eastman House, Rochester; Harvard University Art Museums, Cambridge; Library of Congress; Museum of Fine Arts, Houston; National Gallery of Art, Washington, D.C.; and National Museum of American Art, Washington, D.C. Universities: American University, Washington, D.C.; Columbia University, New York; Cornell University, Ithaca; University of Illinois at Urbana-Champaign; University of Maryland at College Park; University of Michigan at Ann Arbor, Dearborn, and Flint; and University of Virginia, Charlottesville.
57. Fran Smallson, "Soliciting from a Spectrum of Sources," Recorder, 6 March 1995, 28.