Re: Films from an public archive "for sale"

From: Gerald Barnett <barnett[_at_]u.washington.edu>
Date: Sat, 16 Apr 1994 22:56:30 -0700 (PDT)

On Fri, 15 Apr 1994, Jesse Lee Kercheval wrote (in part):
>
> The man, a lawyer, responded with the threat of a suit. He says,
> we must, as a state institution, sell him copies under the Freedom
> of Information Act!

Federal FOIA wouldn't have anything to do with this. Perhaps this person is also confused in thinking if works of the US Government are not protectable by copyright then neither are works by state government. But both the federal and state governments are allowed to hold copyrights assigned to them, so he's very confused.

State public disclosure laws vary regarding what constitutes a public record and what records can be withheld. If the man wants to obtain a public record under a state public disclosure law, he needs to file the request through an appropriate channel, and the agency then has a chance to respond, and it may be that it would not have to disclose the archive. If the material is protected by copyright, providing a physical copy obviously does not grant the right to redistribute.

> I don't know the copyright situation. It may still be held by the
> manufacturer who deposited the films with the historical society,
> it may have been transferred to the historical society, or it may
> have been allowed to lapse. In any case, the historical society
> has the collection. Doesn't it have some legal right to control
> its use, or at least recoup some of the cost of maintaining the
> archive?

If the society holds copyright, then it certainly has a basis for control. If the copyright has lapsed, then its only form of control short of adding new copyright (or perhaps trademark?) material to the work is by means of contract with users. The starting point would be documentation relating to the acquisition of the work and its copyright status.  

If the society lacks a form of control, but wants to exploit its archive, then it should make it easier for interested parties to get the work from it than from free-lance attorney-hucksters. Undersell him with an ad in the same magazines, or some sort of thing.

> Dan Fuller
> (asking for his own edification only and not for the benefit of the
> institution at which he is only a part-time employee anyway)
>
> kerchevl[_at_]macc.wisc.edu

---

Gerald Barnett                              Phone:  (206) 543-3970
Office of Technology Transfer, JD-50        Fax:    (206) 685-4767
University of Washington                    Email:  barnett[_at_]u.washington.edu

Seattle, WA 98195 Received on Sun Apr 17 1994 - 06:01:29 GMT