Copyright Librarian – Nancy Sims, Lawyerbrarian at large

Refitting a t-shirt

Plenty of people have written about the (really quite big) issues involved in providing various sizes of promotional t-shirts. Very brief recap: the “unisex” sizes of t-shirts are usually cut for taller and straighter bodies, and tend to look less great on shorter, rounder, or curvier bodies. Quite a few vendors of curvier-cut blank shirts use measurements that are -unusually- small – so even if curvier cuts are offered, they fit fewer people. (Some of the same vendors that use extremely small measurements for curvy shirts also use smaller and tighter measurements for angular-cut shirts – using these companies may result in short-changing -all- of your larger conference attendees. If you’re allowing people to pre-order shirts, including the brand name for the blank shirts can be very helpful to let people check measurements.)

TL;DR – if you like curvier-cut t-shirts, and especially if you are on the larger side, you will often find nothing that fits you in a range of promotional t-shirts. But if you have a sewing machine, you can fix that.

First, take a shirt whose fit you -do- like, and trace it. (If you don’t have a roll of tracing paper, cut open a paper grocery bag for a big surface to trace.) My favorite curvy-cut shirt is Anvil brand, size XL. (I also like Gildan.)

You’ll want to trace the front and back (shirt patterns usually use a half-width shape: fold the shirt, shoulders together, to trace a half-pattern of the front side; then reverse to trace the back.) Trace around the folded shirt: the curve of the neck hole, the top shoulder seam, side seam, and bottom hem are pretty easy. The seams where the sleeves are attached are a little harder to trace; I fold the sleeve up a bit and feel where the seam goes with my fingers, tracing a dotted line underneath the fabric.

Grey t-shirt lying on a white piece of tracing paper (which is itself lying on a green cutting mat.) The top shoulder seam and side seam of the shirt have been traced on the paper, and a hand is pulling back the sleeve to show how to trace the edge of the arm hole.

Then I pick up the shirt and connect the dotted line. Do the same to trace the sleeves. A surprising fact: the front and back of the sleeve seams are -not- the same. It’s possible to use a single symmetric curve on front and back, but the different lines do look a little bit better. (The technical word for the line around the sleeve-hole is “armscye”.) Eventually you’ll have four pattern pieces traced: half-front, half-back, and front and back of sleeves.

A large piece of tracing paper lying on the floor, on a green cutting mat. The outlines of the front and back halves of a t-shirt, and the front and back of the sleeves, have been traced onto the paper.

When picking a shirt to re-cut, you may need a size up from what you normally settle for in a straight/angular-cut shirt. The most important dimension (for me) is to make sure there’s enough width around my hips. I happily wear an XL (or sometimes even L) in straight shirts, but usually find I need to start with a 2XL for the most comfortable cut-down shirts.

Might be a good idea, the first time you try this, to try cutting down a shirt you don’t mind messing up? Thrift stores are a good source for this. I’ve done this a few times now, so the process below takes me maybe an hour or so, if I don’t try to do it when I’m too tired to do floppy geometry correctly in my head. (Sleepy sewing = mistakes.)

First step is, cut off the sleeves! (You’re going to be narrowing the shoulders -and- shortening the sleeves, so it doesn’t really matter much which side of the seam you cut on.) Fold the sleeveless shirt in half as you did when tracing the pattern, and lay the relevant pattern piece on top.

A dark navy t-shirt with its sleeves cut off, has been folded in half with the front of the shirt facing out. A sewing pattern piece for the front of a t-shirt is lying on top of the shirt - it's one of the pieces obtained by tracing in the previous step.

Trace around the pattern piece (I used tailors chalk, but regular chalk works, too. Or on a light shirt, a disappearing-ink fabric pen.) Note that it -won’t- all line up quite right. Since the arm holes on the curvy-cut shirt are usually a little smaller, the armpit in particular won’t line up quite where you expect. It’s okay, just trace approximately – knits are pretty forgiving.

Dark navy t-shirt with the sleeves cut off, folded in half and lying on the floor, with chalk lines drawn on it to outline the pattern piece from the previous step.

Trim off the hem (leave extra space below the line you traced, as a seam allowance.) Trim off the sleeve hole, also leaving extra fabric outside the line – although it’s okay to get pretty close to the line at the very top of the shoulder seam – the head hole on angular-cut shirts is usually a little bigger than than of the curvy-cut shirts, so you can bring in the shoulders a little more than the specific lines you traced.

DO NOT CUT ANYTHING OFF AT THE SIDE SEAM, except to cut open the side seam for few inches below the armpit. Don’t cut all the way down to your hem, or even down to where your chalk line hits the side seam.

Trace the front and back of the sleeve pattern pieces onto the sleeves you cut off. Label the front and back. Make sure you have a left sleeve and a right sleeve. (I.e., if you have both front sides up, the sleeve hems should point in different directions.) The pictures below are of the front and back of the same sleeve.

Cut-off-t-shirt sleeve lying on a green cutting mat. It has a sleeve pattern piece traced onto it in chalk, and is labeled "F" for front.

Cut-off-t-shirt sleeve lying on a green cutting mat. It has a sleeve pattern piece traced onto it in chalk, and is labeled "B" for Back.

Turn the main body of the shirt inside-out, and insert the sleeve in the appropriate hole (i.e., lining things up so the front of the sleeve will be attached to the front of the shirt.) Note that the hem of the sleeve should be -inside- the body of the shirt while you do this; you’re sewing the seam inside-out.

Note! When sewing knits, use a double needle or a zig-zag stitch, or all your seams will tear the first time you wear the shirt! A fairly small zig-zag width gives you a decent amount of stretch. That’s what I’ve used below.

Pin the sleeve to the shirt. Since you didn’t cut any fabric away from the sleeve, there will be some sticking out of the hole. But try to roughly line up the edge you cut on the main body of the shirt with the line you traced on the sleeve. (Again, knits are forgiving. You could use a smooth curve here and it’d probably look okay in the end.) Sew around the sleeve from armpit to armpit. (When you’re done, there will be a little hole in the armpit where you cut a few inches along the side seam. That’s okay, you want that!)

Navy t-shirt fabric next to a sewing machine. Two layers of fabric are pinned together, ready for sewing. — Remember, this is the inside-out shirt, with the sleeve inserted (hem-first) inserted into the armhole. I still have to turn things and get the free arm on my sewing machine inside the armhole to sew the sleeve on.

Now comes the step where you have to improvise the most. You’re going to angle the side seam to make the shirt curvier, but remember that the armpit was kind of wacky when the pattern piece was lying on top of the shirt before we started cutting? You’re going to kind of fake your way to a new armpit. 🙂

I actually laid the shirt out and traced the side seam from the pattern piece again, on the inside of the shirt. Then I sewed a more-or-less straight line from where the pattern hit my actual side seam, up to the armpit. The line I sewed does -not- quite match what I traced from the pattern piece. There’s a little flappy corner that sticks out to the side below the armpit – that’s from the previous armhole. (Note the bottom of the shirt is toward the -top- of the image below.)

closer view of previous image, with red arrow and the word "armpit" in red highlighting the armpit.

Fold the hem up to the line you traced (the fabric you left for seam allowance should go towards the inside of the shirt.) Secret tip: I often extend the back hem down just a little bit (maybe 2 cm longer in the center back, easing back up to the original line I traced at the sides) to give a little better back coverage. Sew around your new hem. You’re done!

(DuckDuckGo is a search engine that doesn’t track your activity as much as most others. It’s my primary search engine (I even re-set my browsers to use it as the default search) and I really like it. They didn’t give me any money to write this or anything, but one of their legal team members did send me some swag shirts a while back that I decided to use for illustration!)

Solutions Manual Solutions

Black and white midcentury photograph of Chinese woman scientist in white lab coat gesturing in front of a chalkboard full of data — Geneticist Anna Chao Pai photographed by
Ted Burrows, mid-20th-century.
No known copyright restrictions.
(Smithsonian.)

Solutions manuals are turning out to be one of the BIG challenges of COVID teaching – most instructors are accustomed to having students buy their own textbooks, but are still pretty likely to be putting a solutions manual on physical course reserve. (I.e., making sure there’s a copy in the library that students can check out if they need to check their answers and don’t have a lot of money available.)

If the whole class is going to be taught remotely, and students won’t be on campus, or where (as at my workplace) physical reserves are simply not being offered this fall, instructors are in many cases suddenly contemplating how to make sure all students can equitably access the solutions for their problem sets. Many of them are considering whether they can scan the solutions manual and share that with their students.

Fair use does cover making educational copies for students – but rarely extends to making many reproductions of all of a currently-commercially-available work, especially where the main market for the original work is limited to the people you’d be making copies for. (On the other hand, most solutions manuals are for -extremely factual- disciplines; do/should they bear a copyright at all? If they do, is it only in the selection and arrangement of the problems?) Personally, I think fair use may be more flexible in the context of a public health emergency, but that is an activist position. So, legal copying is, at least, a little complicated.

Leaving aside the legality of scanning the whole solutions manual, what else can an instructor do? Well, they could make copies of just a few illustrative solutions for each set. They could work through some problems in recordings, and/or in interactive online settings. Either of these are more likely to be fair use, and/or more likely to be avoiding copying the copyrightable parts of the solutions manual.

Instructors and students may also find copies of the solutions manual online – but for Various Reasons, it’s probably not great to expect those files to be stable long-term.

The real problem here is that the textbooks and solutions manuals are inequitably priced to begin with. COVID remote teaching is merely highlighting a problem that already existed. So why not tackle the real problem?

Switch to an open textbook! Or put together pieces of several open-licensed books if there is no single one that meets your needs as-is – https://open.umn.edu/opentextbooks

White woman with long multi-hued hair faces a whiteboard, working out a math problem — Maths Outreach CC BY UCL
Mathematical & Phys Sciences
Photog Alejandro Lopez

That’s a pretty tall order, especially when classes are about to start (or have already started) on many US campuses. So perhaps instead stick with your existing textbook, but make new problem sets? This is a project that can be shared with students – flipping assignments from solving problems to setting them may result in deeper learning for many. (Remember, students may own copyrights in their creative works here, so if you’re aiming to reuse student contributions, make sure to approach that equitably as well. At my institution, you can set expectations for sharing or reuse of student work in a syllabus, but personally I think that is only ethical if students have a no-excuses-no-penalty way to opt out of sharing their work. If you don’t provide that, they’re not learning the lessons you might want them to learn about scholarly sharing, respect for authorship, and credit.)

And then you can share your open solutions with everyone else, and no one else will have to deal with this next semester!

(Isn’t it odd and surprising how copyright acts as a barrier to learning sometimes? It’s almost as if proprietary excludability isn’t always that great for advancing science and knowledge! Perhaps there are lessons to draw here related to research publishing practices?? Possibly??? /s)

We’re not -trying- to be unhelpful about copyright.

Daguerrotype portrait of African-American woman — Annie Crosby, photographed late 1800s

You found something really cool in an online archive! You think it’s in the public domain and you can use it, but the archive page says to contact the archive for information about copyright, so you do. And then no one will actually tell you whether it is or isn’t in the public domain, or anything useful at all! SO ANNOYING! Clearly, this is intentional obfuscation!

It really isn’t – in fact, in my experience, people who work in libraries and archives tend to be highly committed to meeting users’ needs – but I totally understand why people may feel this way. You’re encountering a confluence of complicating factors, and they’re not usually explained very clearly. (As usual, the following is mostly US-centric, though I’m sure some of these factors also exist elsewhere.)

First, there’s the whole “legal advice” issue. I am a lawyer, but I’m not -your- lawyer – so I can give general information about how the law works, but not specific advice on what you are or are not allowed to do. This is part of the rules of professional responsibility for lawyers, and violating these rules could get me disbarred. For people who are -not- lawyers, like most library and archive staff members, providing specific advice can put them on the hook as committing “unauthorized practice of law” (which carries different penalties in different states.)

These are deeply entrenched rules and norms – the likelihood that someone will actually complain about it if a lawyer provides advice to someone who is not their client is low. The likelihood that someone will complain if a non-lawyer library staff member provides advice is probably even lower. But the possibility is there, and it does happen from time to time, so people have some legitimate nervousness about that, and general rules of professional practice guide against providing specific info.

The “legal advice” issue can be solved by hiring your own attorney. They would -definitely- be allowed to give you legal advice about risks and benefits of particular plans or approaches. (But of course, that would be costly. My cynical side sees the rules and laws about who can provide advice as, at least partly, motivated by a desire to generate business for lawyers. Unfortunate, but a piece of the puzzle.)

Second, libraries and archives as institutions have long taken a -very- hands-off approach to evaluating the ownership status of items in our collections. We often have very incomplete information about these items (unlike art museums, which due to the different natures of their collections, usually have more detailed provenance information about individual items). Our institutional lawyers can be very uncomfortable with the idea of us providing information with legal implications to members of the public (due to the rules described above, and also possible liability if we tell someone there is no rights holder, but we’re wrong.) On top of that, there has been a tradition in archives to require permission -from the archive- for use of archival materials, even though that does not map directly onto how the law works.

Most of us in libraries and archives are, to varying degrees, trying to move -away- from that hands-off, “you’re on your own” approach to sharing information with the public, and on untangling archival traditions from legal details. A joint project of US and European organizations has produced a human- and machine-readable set of 12 basic rights descriptors that have great potential for standardizing public info. But it can be hard to figure out which one to apply!

Botanical-illustration paintings of phlox plants - green stems with small purple flowers. — Phlox Subulata, Agnes Williams

A team of folks at the UMN Libraries have been working heavily the last few months to add labels to our digital collections that provide more information about what we know about the copyright status of collection items. (You can see one example of what the end result looks like at the bottom of the page for this painting of Phlox Subulata, part of the Agnes Williams Collection of wildflower paintings from Andersen Horticultural Library.)

Reduced-size overview of complex graphical workflow document — Rights Review workflow thumbnail

Which brings us to a third piece of this puzzle: it is often difficult to tell if something is in the public domain – and those determinations may be country-specific. The rights label we’ve attached to Agnes Williams’ paintings is “No Copyright – US” – this happens to be a fairly straightforward determination because these works were unpublished, and we know that Agnes died more than 70 years ago. (Note that in most countries, this “life of the author + 70” years term applies to most works – but in the US, it only applies to unpublished works, and only from certain time periods.) For a brief illustration of the complexity of this review process under US law, check out the intro workflow co-produced by the Minnesota Digital Library & UMN Libraries (and we don’t always have the info needed to answer even just these basic questions!)

The 12 standardized Rights Statements are very helpful here: the public display text is very clear that we haven’t assessed items under the laws of other countries. If you click through to the full text of the “No Copyright-US” label , you’ll also see that it contains a lot of disclaimer language: this is our best guess, we make no guarantees our assessment is correct. Those limitations have helped to make institutional lawyers more comfortable with sharing this kind of information with the public.

Black and white photo portrait of African American woman — Violet P. Henry, photographed 1970-80.
CC BY-NC YMCA

In addition to trying to clear up copyright communications for items that may -not- have a copyright owner, some libraries and archives are expanding further into making rights more understandable and making our collections more useable. One way we can help with this is to identify items where there -is- a knowable existing rightsholder – and ask them to pre-approve public use! The YMCA has authorized UMN’s Kautz Family YMCA Archives to share many items that do have a copyright, and in many cases has authorized the application of a Creative Commons license permitting non-commercial use with attribution.

Worries about providing legal advice, challenges of changing organizational culture, and complexity of legal facts aren’t the -only- factors that contribute to institutional reluctance to be straightforward about copyright status. Obviously, specific instances of confusion may have many different contributing factors. But hopefully, this outline makes it a little clearer why things are not always so clear, here!

Migration, and an update

I know, I know – blog posts that say things like “I intend to update more frequently” are usually a death-knell for any future updates. I hope to avoid that; I just migrated this blog to a new hosting service. But in order to combat the forces of vocational awe (Ettarh, 2018 (and earlier)), I also wanted to give some info on why I slowly stopped blogging in 2016 and 2017.

Until recently, I’d’ve told you that it was just that I got too busy with work. But until recently I didn’t realize how sick I’d been. “Sick” is a bit of a weird word for it, because I wasn’t dealing with a disease or injury or an infection or anything. I’ve had fibroids for years, and they had been giving me increasingly heavy periods, and by fall of 2017 they started literally interfering with daily life. So I did a minimally invasive procedure that winter to treat them, with some benefit, but things just got worse again. Then I had a hysterectomy last summer, and immediately felt a lot better. In fact, I thought I felt all the way better by early fall. But round about January, something just clicked, and the only way I can describe it is feeling like my brain came back online.

I’ve mentioned this to co-workers, in the process of apologizing for dropping so many of the balls I was trying to juggle, work-wise, in the last few years. (I’m a realist: I’m still gonna drop balls – my back-online brain is still pretty poor at lots of executive functions.) But according to most of those folks, it wasn’t obvious to them I was offline. Heck, it wasn’t obvious to me until the magic moments of a few months ago, when I suddenly could do stuff like -remember things- and -complete more than three complex tasks in a day-. (I am pretty sure that most of my brain/energy dysfunction was iron depletion, but because my hemoglobin levels never dropped below normal range, we didn’t discover my ferritin levels were very low until way late in this whole game. There was also a lot of physical dysfunction, mostly in terms of core muscle function, that I didn’t really realize until it started feeling better, but that was pretty fine by September.)

I did plenty of work during my out-of-it time (some of it even good), but it was slow and slogging. Getting stuff done at work -inevitably- meant not getting stuff done at home. I stopped cooking for myself, I lost clothes in the laundry (I have machines in my basement – I just couldn’t keep track of loads.) I had less and less energy for protest and political work (though I did keep doing that – it was just always a tradeoff with work and home function.) I stopped doing as much socially, stopped biking as much, lost track of a lot of craft projects I wanted to do but couldn’t sustain attention for. I was under a lot of pressure at work, often communicated in those weird indirect ways that library folks communicate, to step it up on things like tangential newsletter communications, when I was barely able to stay on top of my (heavily increasing throughout this period) consultation requests and project work. I definitely felt guilty for not doing as much work as I “knew” I could do, including for just not ever getting around to blogging.

But I was totally wrong about how much work I could do! And there was no way to know that until I felt better. Even “tired” doesn’t really describe the difference between how I felt then and how I feel now. And heck, everyone is tired!

There are so many things that affect our lives, and the lives of others, that we may not know. And work and “productivity” are so very much not the most important things in life. The current pandemic is driving that home for a lot of people, and how much we can and should still do more to value our own lives (not our work) and the lives of others (not their work) more highly.

I may write more here in the future. As always I have lots of thoughts, and my brain seems to finally have the cycles to want to express them a bit more. But political action, and gardening, and even just sitting on a chair with my cat are also pretty important. So maybe not.

What is that citation doing?

Saying “this is not my work!”
Saying “this is the work of [named person or entity]!”
Showing where the author found information or an idea.
Showing other people where to find that information or idea, too.
Showing that someone, anyone, other than the author has previously stated this piece of information or articulated this idea.
Proving that the author can cut and paste from a random website.
Proving that the author can cut and paste from a “suggested citation” widget.
Proving that the author can use citation software.
Demonstrating competency in a weird niche subcultural skill.
Demonstrating competency in using specific kinds of sources.
Demonstrating that the author is willing to jump through certain hoops for a grade.
Illustrating that the author read* particular sources.
Illustrating that the author read* “the right” sources.
Illustrating that the author read† Reviewer 2’s publications.
Claiming membership in an academic field or academic tradition
Claiming expertise for the author.
Claiming association with people of recognized stature in a field.
Performing one or more identities.
Manifesting anxiety.
Hazing.‡
Obfuscating.
Excluding people from in-group status.
Making a joke.
– ∞ a LOT of other functions

* (or skimmed)
† (almost certainly skimmed)
‡ See, e.g., Minn. R. 1550.1760 (1996).

Related readings (by no means the only things I’ve read on this topic, just the ones I can remember right now)(edit: slightly updated and ordered in semi-interestingness, 5/10/19):

Tushnet R. Payment in credit: copyright law and subcultural creativity. Law & Contemp. Probs.. 2007;70:135.

Boyle, James. 2010. The public domain: enclosing the commons of the mind. (Open PDF) New Haven, Conn: Yale University Press.

A good portion of the things Jessica Litman has ever written.
Posner, Richard A. The Little Book of Plagiarism. New York: Pantheon Books, 2007.

Lots of conversations online and IRL with very smart people.

Hyde, L. (2012). Common as air: Revolution, art, and ownership. London: Union Books.

Boon, Marcus. In Praise of Copying. Cambridge, Mass: Harvard University Press, 2013. Print
ZERBY, C. (2007). The Devil’s Details: A History of Footnotes. New York, Touchstone.
Wincor, Richard. From Ritual to Royalties; An Anatomy of Literary Property. New York: Walker, 1962.

Lots of folks in replies scandalized by this footnote, but I think it's beautiful. https://t.co/Ono2gsOS2O

— Angus Johnston (@studentactivism) May 9, 2019

Extremely off-topic: dyeing my hair!

People often ask about my hair: yes, the grey is my natural color. My grandfather and most of his siblings were solidly white by their late 40s. Yes, I do dye the ends. Because why -not- play with the blank canvas nature has decided to give me? 🙂 I dye just the tips because I think it looks cool, and because I don’t have to worry about my roots growing in! (Also, the way I dye it, dye never touches my skin, which is mostly just a bonus, but does mean I don’t have to worry much about toxicity.) When it first started going solidly grey in my mid-20s, I colored all of it back to dark brown for a few years while I adjusted to the idea.

When I first tried dyeing the tips, it was via a friend who is a total pro. She invented a method using foils and carefully layered chunks of hair; it has never looked quite as smooth or even as when she did it. But she moved away! And also, I am a cheapskate. That said, if you live in Seattle, you should check out Helix Salon.

Annnnyway, what people ask most often is -how- I dye just the tips. So, uh, here goes:

1. Purchase hair dye.
I use Nice’n Easy: white hair -really- doesn’t like taking color. Plus, this lasts longer than even the good salon color I got when I first tried this plan. It fades well, too. It doesn’t have the pretty purple undertones, tho, even though I use the darkest “blue-black” (2BB).

2. Perform the allergy test.
AH HA HA HA HA HA HA HA HA HA HA

2. Put on a shirt that zips or buttons, or otherwise comes off -not- over your head.
I have a dedicated -very ratty- and dye-stained sweatshirt I use for this. An earlier version of this process used a ratty turtleneck to keep the dye off my skin, but I have developed an even better, higher-tech solution for that…

3. Wrap a piece of tinfoil around your head.
No, really.

I don’t know how this would work if I -didn’t- wear glasses. They’re pretty key to keeping the tinfoil on.

Everything is going to sound metallic for the next hour or so.

4. Put on the “Expert Colorist” *snicker* gloves.

5. Squeeze some dye out onto your fingers.

6. Use your fingers to squish the dye into your hair.
I grab a chunk near my face, and just squish the dye on. Always start by keeping the dye closer to the tips than you think you want the color to end up; it’ll spread upward in a later step.

7. Continue squishing the dye into your hair, all the way around your head. I do in in about half-inch-wide chunks.

8. Once there’s dye on your hair all the way around, go back and take chunks of hair between your fingers, and slide them back and forth (in the semi-universal “pay me” gesture) to make sure the dye has penetrated to most of the individual hairs in that chunk. If you skip this step (I sometimes forget), you’ll find un-colored hair that was on the inside of one of the chunks when you wash it all out. This step is when the color usually climbs up the hair a little.

I know steps 6-9 would work better with photos, but um, I HAD HAIR DYE ALL OVER MY HANDS.

9. Let it sit for however long you’re supposed to let it sit. Conveniently, the tinfoil can be bent to keep it out of your face at this point. I give it a generous 45 minutes. Enough time to write a ridiculous blog post!

10. Clean up the inevitable drips of color you got on bathroom fixtures in steps 6 and 7 but couldn’t see then.

11. Rinse the dye out.

12. This is one of the few times I actually use a hairdryer, so I can see right away that the color made it where I wanted it to.

And of course, I missed a spot! There is a lot to be said for professional hair colorists. Ah well. 🙂

Copyright Report, #13 – Access Copyright v. York University

This is not a full roundup of copyright news, but for those keeping an eye on copyright issues in higher education broadly, you’ll want to know about the Federal Court of Canada decision in the Access Copyright v. York University case.

Access Copyright is the Canadian equivalent to the Copyright Clearance Center in the U.S.; a central point for licensing many materials for educational copying uses. For a while, there was a compulsory license that all higher ed institutions in Canada paid to Access Copyright yearly. But the law on educational “fair dealing” (a concept in Canadian law similar to “fair use” in the U.S.) changed a few years ago, and subsequently several Universities stopped paying the annual license fee. Instead, they began to rely on a combination of fair dealing and payment of individual licenses, sometimes through the Copyright Clearance Center.

Access Copyright sued York University over these practices a couple years ago (background from Canadian Lawyer) and earlier this week, the court issued its opinion in the case. It’s an almost complete loss for York, but many commentators have pointed out that it is a pretty large departure from the last several years’ fair dealing jurisprudence of the Supreme Court of Canada. It sounds like a lot of Canadian universities are worried about their options right now, but many are expecting an appeal. Some good analysis from the always-thorough Michael Geist, a slightly-shorter piece that is apparently what Howard Knopf produces when he doesn’t “have a lot time”; and a shorter, very cogent piece from Lisa DiValentino.

Not much immediate impact in the United States, but there might be some interesting long-term implications for the Copyright Clearance Center’s business models in Canada – and perforce, the U.S. It’s also interesting to compare against the strong win for educational copying in India earlier this year.

What does a Copyright Librarian do, anyway? Special user agreements

A lot of people I meet are curious what my job is like. In fact, a lot of my colleagues who work in the same library as me don’t know what I do with my time. So I’m going to highlight some interesting things that come up in my work. Hopefully, this may become a series.

Image of a modern fountain pen with older-style metal nib pointing rightwards, resting on graph paper with a partial view of a signature in black ink — Signature BY Wiertz Sébastien

One thing I do is help to draft legal agreements related to content in the libraries. One of the very first legal agreements I drafted when I started working here was text for users to click-through when uploading content to a particular public online space within the University. My goals are usually threefold, when drafting this kind of thing:

to make a document that gives the University the rights it needs to share the content now (and usually, the rights needed to preserve it for the future. Sometimes, the rights needed to authorize others to use it – more on that in some other post.)
to make a document that DOESN’T TAKE ANYTHING AWAY from the people who share it with us unless absolutely necessary (which it almost never is.)
to make a document that makes sense to normal (i.e., non-lawyer) humans.

Even with similar goals in mind, these kinds of agreements sometimes turn out differently. Here are two examples that are both trying to meet the needs of particular groups of people, under different use conditions.

Oral History Agreement(s)

One agreement I drafted was for use in oral histories collected by Libraries staff, in active interviewing situations. The development was informed by documents used at other institutions, and principles of informed consent (which is not usually a legal concept, but rather one of academic ethics). We’ve adapted it at times for use with different populations.

We knew from previous encounters with muddy oral history agreements that there is divided legal precedent on who owns a recording of a semi-scripted interview, copyright-wise. Without going into too much detail, copyright doesn’t exist under US federal law in “unfixed” works – that is, in off-the-cuff conversations. However, once such a conversation is recorded, it is “fixed”. It doesn’t quite make intuitive sense to say that just hitting the “record” button means you own the copyright in all of the expressive contributions of anyone in the recording, but some courts have thought that. Some have thought that each contributor to that sort of recording owns rights in their own independent contributions. So we wanted an agreement that ironed out that point.

We also wanted this agreement to work with oral history contributors who might have a complicated relationship to the idea of a singular “legal” name (e.g., contributors who might go by several different names, contributors whose names may have been affected by cultural differences during an emigration/immigration experience, etc.) After a bit of research and consultation with other lawyers, we ultimately concluded that this was mostly a non-issue. (For us, in this situation. TINLA, IANYL.) That pop-culture idea of signing documents with an “X”? Yeah, it sort of still works, legally.

So here’s some example language from that agreement:

When a recording is made that contains non-scripted conversation, anyone talking in that recording may own a copyright in their contribution to the conversation. Similarly, under laws in various jurisdictions, individuals appearing in a recording may have some rights to control how that recording is used.
This agreement is not intended to, and does not, take any rights away from interviewees. It does share some of those rights with the Libraries. The next paragraph spells out what rights are shared in more traditional legal language.
To the extent that I, [Interviewee] own any copyrights, publicity rights, or other related rights in the products of my participation in this project, I hereby grant to Regents of the University of Minnesota (“the University”) a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, right to use, transmit, reproduce, distribute, perform, prepare derivative works from, distribute, and authorize the redistribution of the products of my participation in this project in any medium.

I really like the second paragraph there, and wish I could’ve made the third one more like it. The language in the third paragraph is legally robust, but intimidating for non-lawyers. We ultimately decided that since this agreement would only be used in situations where interviewers were face-to-face and able to explain it to contributors, the trade-off was probably worth it.

To be fair to the interviewee, and respectful of the value of their contributions, we included the following:

To the extent that the University owns any copyrights or other related rights in the products of Interviewee’s participation in this project, the University also hereby grants the same nonexclusive rights listed above to the Interviewee, so the Interviewee may make any desired use of those products.

With some user populations, or with interviews on particular topics, sharing oral histories can be very sensitive, or even risky. This agreement includes some options for contributors to limit use, including options for them to allow in-person access but not online sharing, to allow online sharing of transcripts but not audio/video, and to limit all use for a set time period. The in-person face-to-face interaction between interviewers and contributors allows for discussion of the benefits and drawbacks of all the various options.

Personal Stories Agreement

Another interesting agreement I drafted was for use in a project where trainers and researchers were working with specific groups of people to help them develop skills in creating their own video “stories”. The hope was to collect these stories to be able to share them online, again while respecting the value of the contributions of individuals. In this case, the agreement language was for an online click-through agreement that users might encounter while working with a trainer, but would more likely need to navigate on their own.

Since lots of the contributors to this project would have learned English as a second (or third, or fourth, or…) language, and some might have limited English proficiency, we wanted this to be as simple as possible, while still dealing with legal issues that don’t get all that “simple”. In this case, we might have sacrificed some of the legal robustness in favor of trying to make things understandable. I used the Readability statistics generated in Microsoft Word to try to limit complexity (though ultimately I had to use some words that tanked those statistics immediately.) In some cases, I also used the “ten hundred most used words” (a la XKCD’s Up Goer Five) to try to keep lists simpler. You can see how successful (or unsuccessful) I was with that in this section that’s intended to cover both the author’s own contribution, and any third-party materials they may have included:

I created this digital story. If I used anything (including words, video, pictures, music) that I did not create, I promise that I either got permission, or I think my use was legal as a “fair use” or because of a Creative Commons license. Anything in the digital story that I did not create myself is explained in the video’s credits.

Both Creative Commons and fair use are elements of the training that is part of this project, so at least theoretically the user agreement won’t be the first time these contributors encounter the terms or concepts. We also made use of Creative Commons licenses from contributors for this project, partly so contributors could keep copyright ownership while enabling sharing, and partly because they provide strong support for attribution to creators. Creative Commons was discussed in trainings, but we also wanted to reinforce that in the agreement, so we included this language:

My materials will also be shared publicly online under the terms of a Creative Commons attribution non-commercial license. This license lets others view, share, remix, and build upon my work non-commercially, as long as they credit me and share what they create under the same terms.

The whole agreement is less than half a page. Whatever benefits a longer, stronger agreement might bring the institution in terms of legal risk avoidance would just not be worth the negative impact on trust and empowerment of creators.

As an example of “my” work, it’s worth highlighting that for each of these agreements, there was a great deal of input from various colleagues around the libraries, and often additional legal review. That made these agreements much better for their own purposes, but it also means that each of them took at least a couple months of back-and-forth communication to reach full completion. In any given week, I might spend a couple hours (or less) on this kind of work, but for each document like that, it often totals quite a few hours in the end.

Copyright Report #12; General shenanigans

“Who’s On First?” Routine goes to the Supreme Court
The heirs to Abbott & Costello recently sued a Broadway play that involves quotation of the classic “Who’s On First?” comedy routine. Court decisions so far have disagreed as to whether the quotation in the play is a fair use or not, but a more fundamental challenge has also been raised. The defendants claim that the routine has existed for long enough that it is in the public domain. The plaintiffs are claiming that the routine was unpublished prior to its inclusion in the 1940 movie, “One Night in the Tropics”, and that renewals for that movie mean that it is still in copyright today. The heirs have just petitioned for certiorari at the Supreme Court on this point.
Law360 – https://www.law360.com/ip/articles/915189/abbott-costello-heirs-take-copyright-case-to-high-court
Hollywood Reporter – http://www.hollywoodreporter.com/thr-esq/supreme-court-asked-save-abbott-costello-whos-first-copyright-995770
Baseball diamond image by Wikimedia Commons user CBurnett

A lot of people have been circulating this piece from The Atlantic, which is apparently a paean to the never-approved Google Books settlement. I can’t finish reading it, because it starts of with such extreme romanticizing of “what might have been”. My own take, to paraphrase my Twitter thread on this is: the Google Books settlement was always and forever a TERRIBLE THING FOR THE PUBLIC INTEREST. It could have potentially created a massive online library, but access would have been only via Google, and only at their benevolent discretion. The settlement would not have answered -any- questions about whether what they did was legal in the general sense, and whether others could do it, too. The settlement not getting approved eventually meant that we got a court ruling affirming that scanning for searchability can be fair use, and that accessibility, and potentially computational analysis, are fair use, too. One of the biggest barriers that I see to massive public access to a deep set of digitized literature is that NO ONE IS FUNDING LIBRARIES AND ARCHIVES in our attempts to capitalize on the Google Books and Hathi Trust decisions that made clear the broad scope of fair use for this kind of work.
James Grimmelmann has also tweeted about this, at greater length than me, and with deeper consideration for the details of class-action law in this case. Thread starts here; continues here.

The College Board is having a social media event for college-bound students; Twitter user Bill Fitzgerald pointed out that the contest terms grant the College Board massive rights to use students’ works, information, and likenesses forever, regardless of whether they win the contest.

A federal district court recently ruled that there is no copyright protection for pesticide labels. (Similar but slightly more detailed commentary.) This seems pretty straightforward to me, but apparently there is precedent to the contrary. I haven’t yet had time to chase down the actual court opinion; would be pleased if anyone does have a copy and can forward it.

Techdirt has a very interesting piece (including long, relevant, digression about a sorority trying to enforce copyright ownership of a secret handshake) on the dangers of ex parte judgments about copyright being used to stifle critical speech online.

Copyright Report, #11 – Cheerleading and copyright office reform

Only two real pieces of news, but they’re fairly major.

On Monday, the Supreme Court issued its decision in Star Athletica v. Varsity Brands (PDF), determining that cheer uniforms are copyrightable – or at least, the designs incorporated within the uniform are, if they would qualify for protection if they were -not- part of the uniform.

This case can be a little confusing for people who are not deeply nerdy about copyright – it can come as a surprise that most clothing items, considered useful articles, are not copyrightable under United States law. Some of the arguments in this case have focused on whether some of the decorative elements in the cheer uniforms were equally functional parts of the garment design. The Supreme Court has not reviewed much in the way of cases about clothing copyright before this, which is another reason why the case is more complicated; there’s precedent, but not a whole lot of -binding- precedent.

Although copyrightability of clothing decorations may not seem very related to research, scholarship, or education, the underlying issues of copyrightability of functional objects, and the boundaries of separation between functional objects and creative works are definitely of interest to these areas of work and study. ALA, ARL, and ACRL signed on to an amicus brief filed by Public Knowledge (PDF), which argued that expanding copyrightability of the -appearance- of useful articles could hinder technology research and development, especially in fields such as 3D printing. The brief also argued that the correct area of protection for visual designs in useful articles is design patent; having extensive personal experience dealing with the fallout of overlapping copyright and patent protections for software produced in academic environments, I’m definitely not thrilled about any expansion of overlaps. (Although design patent already had some odd overlaps, before.)

For more on this ruling:

Marie-Andree Weiss at the 1709 Blog
Eriq Gardner at the Hollywood Reporter
Ronald Mann at SCOTUSBlog
Steff Yotka at VOGUE (with a runway look illustration that aptly highlights how much chevrons and stripes are vernacular in cheer outfits)

The other major copyright news item of late is that a bill to move the Copyright Office out of the Library of Congress has been introduced in the House of Representatives. Despite bipartisan support from congressional political parties, this is a strongly politicized topic – many news stories report as fact that Google has control over the current Librarian of Congress, or that library activities and the “protections” of copyright are inherently in conflict, when neither is clearly true. (See my previous coverage here.) A couple of the stories linked below have pretty strong biases, but I think they’re pretty obvious.