Questions and Answers

Questions & Answers — Copyright Column

Column Editor: Will Cross (Director of the Open Knowledge Center and Head of Information Policy, NC State University Libraries) <wmcross@ncsu.edu> ORCID: 0000-0003-1287-1156

QUESTION: A cataloging librarian asks, “Can I claim copyright in bibliographic records that I create?”

ANSWER: Even putting aside questions about work made for hire — which may suggest that the library or university rather than individual librarian may control any rights that do exist — the core issue about the copyrightability of metadata including library bib records is complex. Of course, a fundamental tenet of copyright is that facts, words, and short phrases are not eligible for the copyright monopoly. So, to the extent any descriptive metadata is essentially a fact-based description of a work with only minimal creativity, it may not be eligible at all. Likewise, if the metadata is simply a single word or short phrase like “published in 1994” or “Author: Cassidy Sugimoto” it would also be unlikely to qualify for copyright. On the other hand, where the metadata takes the form of longer, more creative descriptions, there could be some copyright to consider. Likewise, while the U.S. does not recognize any sui generis (or unique) protection for unoriginal databases, other countries do provide such protections for databases of descriptive metadata.

Given the potentially mixed copyright status of bibliographic records, as well as their public-serving mission, many libraries have elected to simply open up access to those records. The New York Public Library’s policy, for example, states plainly “To the extent that NYPL has a copyright interest in the Metadata Records, a Creative Commons CC0 1.0 Universal Public Domain Dedication will apply.” (https://www.nypl.org/help/about-nypl/ legal-notices/open-metadata) Under this policy, NYPL also requests standard attribution, open sharing of any materials developed from their metadata, and respect for the community norms set forth in the WorldCat Rights and Responsibilities for the OCLC Cooperative (https://www.oclc.org/en/worldcat/ cooperative-quality/policy.html). Significantly, OCLC, which is the steward for much shared descriptive metadata, specifies, “OCLC claims copyright rights in WorldCat as a compilation, it does not claim copyright ownership of individual records.” Most other libraries follow a similar approach to NYPL including the University of California System (https://libraries.universityofcalifornia.edu/sag2/uclibraries-metadata-sharing-policy/). Creative Commons itself advocates releasing metadata into the public domain under a CC0 license: https://creativecommons.org/2012/08/14/ library-catalog-metadata-open-licensing-or-public-domain/. Taken together, it is fair to say that much descriptive metadata generated by libraries falls outside the scope of copyright and in the rare cases where it may be protected, most libraries choose to openly license it.

QUESTION: A student asks, “Who owns copyright in tattoos? If my university wants to commercialize my image, does the tattoo artist have any claim on my image if it includes a tattoo they created?

ANSWER: Tattoos have a long and unusual history in copyright law. As a baseline, tattoos themselves are clearly protectable under copyright law as pictorial and graphical works once fixed in the medium of expression (either an established design that is reused on many people or on a particular person). Of course, tattoos can include both original designs and borrowed elements from other tattoo artists as well as from the wider world of copyrightable texts, images, and so forth. So identifying the particular owner can be a first level question that needs to be answered.

Despite the fact that the basic question about copyrightability is fairly clear, tattoos have often been used as a signature example of low-copyright regimes where the boundaries of acceptable use and practice are governed less by legal rules than by ethical and professional norms. Most disagreements about tattoos have historically been addressed informally through community sanction rather than through litigation, with some exceptional cases where a high-profile tattoo incorporates a highly-commercialized image or trademark such as a wellknown cartoon character or the logo for a well-known company.

In recent years, however, the issue of ownership in original tattoo designs has taken on greater significance as online media — especially video games and streaming services — have grappled with acquiring the rights to display athletes on their platforms. In several cases, courts have ruled that tattoos displayed by athletes appearing in a video game may be included under the doctrine of fair use. In fact the leading case in this area, Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F.Supp.3d 333 (2020), found exactly that.

In the fall of 2022, however, a jury in the Southern District of Illinois reached a surprising decision holding that the same video game studio, Take-Two Entertainment, along with the WWE, was liable for incorporating tattoo art into a realistic depiction of wrestler Randy Orton for use in their “WWE 2K” series of video games. The tattoo was designed and the claim of infringement brought by Catherina Alexander, a mostly inactive tattoo artist who has never licensed any of her designs.

The case itself has taken some unusual twists and turns. Many copyright experts were particularly surprised when the court held that the case should be decided by a jury despite the fact that questions of law are generally decided by a judge. The court compounded this mistake when it failed to include jury instructions that covered the primary legal defenses at issue including implied license, de minimis use, and waiver, despite both parties request that this guidance be provided.

The law professor Zvi Rosen attended the trial and reported that the defense attorney may have done their clients no favors based on some behavior in the courtroom. From Rosen’s perspective, however, that the main distinction between this and the 2020 Solid Oaks case was that “the court in Solid Oaks found that the players’ tattoos depicted in the games were only identifiable when players selected their player models.” In contrast, “in this case, there are at least two times where the Tattoos are identifiable in detail: (1) during the customization process, and (2) during the walk-out clip of the player model.” You can read Rosen’s full report here: https://mostlyiphistory. com/2022/10/06/tattoos-and-fair-use-the-alexander-v-taketwo-case/. Significantly, the jury also awarded a relatively small amount of damages, $3,750, which works out to roughly $71 for each

month the case has been pending! Despite the relatively small award, defendants are likely to appeal and with a new circuit split a court of appeals is likely to take up the issue. Certainly, the economic stakes could be much higher in a future case where the work at issue has been registered. Indeed, Alexander’s lawyer reportedly suggested that the jurors award Alexander $2 for each copy of WWE 2K sold, which would come out to about $20 million.

The case also raises profound questions about a person’s right to their own likeness and bodily autonomy. Copyright attorney Aaron Moss has written deeply about this case — most recently here https://copyrightlately.com/tattoo-artist-trialvictory-copyright-lawsuit/ — and closes with a series of quotes from flabbergasted copyright experts across the field including Aaron Perzanowski, the nation’s foremost legal scholar on tattoos. Perzanowski writes that, beyond any financial issues “these lawsuits are corrosive at the deepest levels of tattooing as a practice.” For students, faculty, and anyone who cares about the ability to control use of your likeness, this is a case worth watching.

QUESTION: A publisher asks, “We have been approached by a news organization that claims we are violating their copyright by including an image from their newspaper in a scholarly article. Should we be concerned?”

ANSWER: Of course, any credible claim of infringement merits attention, but publishers, scholars, and everyone else should be aware that copyright trolling remains an ongoing issue in higher education. Groups like Rightshaven LLC and attorneys like Richard Liebovitz, who was sanctioned and indefinitely suspended in 2021 for his bad conduct, have built a business around threatening and sometimes filing aggressive and opportunistic nuisance lawsuits over unauthorized use of materials with the specific intention of forcing expensive settlements.

In a column last year, we discussed the rise of a new version of this practice: “copyleft trolling” where a rightsholder targets creators who have incorporated a Creative Commons-licensed photograph of dubious commercial value but failed to provide proper attribution as required by the license. In a recent report, attorney Ethan Jacobs documents another new approach to copyright trolling, this time from news organizations. Specifically, Jacobs notes “an uptick in demand letters from Mathew Higbee’s law firm, which represents copyright holders in claims over unlicensed Internet uses of photographs.” Photos by these holders are frequently included in news stories from major news agencies including AP, Reuters, and AFP as, in Jacobs’ words “infringement bait” for unsuspecting bloggers, creators preparing slide decks, and so forth. These high-volume nuisance claims raise the specter of statutory damages (up to $30,000 per infringement) and then offer a settlement of $1,000 to $3,000 per photograph used.

Given the high-volume nature of much copyright trolling — firms often send out thousands of demand letters each year — one might expect that many cases would result from these legal threats. However, Jacobs notes, “it appears the Higbee firm has only ever sued once on behalf of AFP and has never brought a suit on behalf of AP or Reuters.” In addition, only a few of the recipients of demand letters have brought declaratory judgment lawsuits asking courts to find they were not liable for infringement. This disconnect between the high volume of legal threats and the relatively low level of legal action is not uncommon for copyright trolls, who are often more bark than bite.

Academic publishers and authors are especially well positioned to review these threats with a critical eye when their scholarly engagement with the materials would be likely to be protected by fair use. Resources such as the Codes of Best Practice in Fair Use (https://cmsimpact.org/report-list/ codes/) document a huge set of practices across most academic disciplines that are clearly transformative and thus do not require any permission at all. When an article, book chapter, or other scholarly work incorporates images for purposes of commentary, critique, illustration, and so forth, the threats from a copyright troll are particularly unpersuasive. After all, this affirmative defense permits the use and raises the potential for a judgment requiring the plaintiff to pay for attorney’s fees.

Jacobs’ full discussion is worth a read and can be found here: https://twitter.com/ethanjacobslaw/ status/1572298298140274690 He closes with a suggestion that many of the news agencies that retain trolling firms may be hoping to keep a low profile since the practice of copyright trolling is borderline unethical and certainly disreputable. Jacobs cautions, as do I that “this is not legal advice that Higbee’s news agency clients won’t sue you. They might. They could. But so far they haven’t decided to sue almost anyone they’ve threatened.” Either way, I hope this discussion can help shed some light on bad actors who may have been hoping to stick to the shadows and to reassure academic authors and publishers that just because someone sends you a nasty letter doesn’t mean that you are actually doing anything wrong or in any credible jeopardy.