Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Research Identifier An unambiguous reference to the resource within a given context CleanUrl: research Description A description of the content of the resource or work Entries in this section of the Copyright Cortex include both peer-reviewed and non-peer-reviewed research, exploring the law of copyright and its effects on policy and practice in a variety of cultural heritage contexts. From managing the risks associated with making orphan works available online to claiming copyright in digital surrogates of public domain works, this section catalogues data, evidence, and commentary across a wide range of topics. If you have any recommendations for material that should feature in this section of the Copyright Cortex please do let us know. You can contact us at: <a href="mailto:info@copyrightcortex.org">info@copyrightcortex.org</a> Journal Article URL https://ssrn.com/abstract=2505041 DOI http://dx.doi.org/10.2139/ssrn.2505041 Volume 61 Pages (from-to) 393-452 Issue Number 3 ISSN 0886-3520 Journal Title Journal of the Copyright Society of the USA Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Copyright at the Museum: Using the Publication Doctrine to Free Art and History Description A description of the content of the resource or work This journal article describes the difficulties associated with determining whether a work is published or unpublished, and explores judicial precedent and potential ways to clarify publication status for archived works, which would make it easier for cultural heritage institutions to determine the copyright status of their collections. Creator An entity primarily responsible for making the resource Deborah R. Gerhardt Date A point or period of time associated with an event in the lifecycle of the resource 2014-07-29 Abstract A summary of the resource. This Article is the first to use the copyright publication doctrine to clarify whether art, photographs, films, and historical documents that fill our museums and libraries are in the public domain. Knowing whether a photo, painting, film, or original letter was published is critically important to anyone who wants to use it today. Before 1989, publishing a work with no copyright notice dedicated the work to the public domain. Unpublished works without a notice are likely protected by copyright, and their unauthorized use can result in severe federal penalties. Unfortunately, the meaning of “publication” in copyright law is notoriously ambiguous. The federal statutory definition suggests that works “made available” to the public are published, while leading treatises generally assume that works given to public museums and libraries are unpublished. Confronted with this uncertainty, risk averse institutions too often assume that archived works are protected by copyright. Misunderstanding the law can keep cultural treasures locked in dark archives, vaults and basements, preventing their use as a foundation for new expression and distorting our sense of history. This Article critically examines mistaken assumptions about copyright publication. It finds that neither the statutory definition nor leading treatises adequately identify when a work is published. A better standard for determining when a work is published and in the public domain is needed to free works from being locked up by copyright uncertainty. The best solution would clarify the boundaries of a stable public domain. In a recent decision, the Supreme Court took a wrong turn in dismissing the importance of the public domain. Knowing what content may be freely used is critical to preserving First Amendment values and freeing cultural treasures from copyright’s bondage. The copyright ambiguity of archived works should be resolved in a way that honors the expressive and historical value of the public domain. After considering several alternatives, this Article shows how precedential patterns point to the best solution to the publication ambiguity. Drawing on empirical analysis of federal cases interpreting copyright publication, I identify the variables that are most important in determining whether archived works are published. The suggested solution focuses on copyright owner intent and the availability of authorized copies. Other factors described as significant in leading treatises - such as the type of work or archive - actually mask these two fundamental inquiries. The proposed standard provides a much needed solution to clarify which pieces of our cultural heritage are in the public domain and freely available as raw materials for educational sharing, expressive work, historical research, and public discourse. Publisher An entity responsible for making the resource available Social Science Research Network (SSRN) Source A related resource from which the described resource is derived <a href="http://journal.csusa.org/archive-home.php" target="_blank" rel="noreferrer">Journal of the Copyright Society of the USA</a> Language A language of the resource ENG Rights Information about rights held in and over the resource All Rights Reserved Identifier An unambiguous reference to the resource within a given context CleanUrl: copyright-at-the-museum-using-the-publication-doctrine-to-free-art-history Copyright Cortex Fields Extra CC fields for copyright information Jurisdiction United States Size Details about the size of the resource (can be Bytes, Pages or Duration, depending on item type.) 2.0 MB 60 pp. Copyright Information Information about the copyright status of the record. In Copyright Keywords A selection of keywords that pertain to the article attached. fair use public domain exceptions and limitations copyright duration collections management Visual Date Date of creation or availability of the resource that is shown to users. To be formatted as follows: 2017 January 7 2014 July 29 publication doctrine publication right unpublished works