Fair Use: Building the World of Tomorrow

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.  

Today’s post is brought to you by guest blogger, Greg Cram, Associate Director of Copyright and Information Policy, New York Public Library.  Cross-posted to fairuseweek.org*

In 1939, the New York World’s Fair opened to great pomp and circumstance. The theme of the Fair was “Building the World of Tomorrow.” The aspirational theme reflected the country’s desire to shake off the doldrums of the Great Depression and focus on a better future. Participants included close to 60 nations, 33 states and U.S. territories, and over a thousand exhibitors. During its two seasons, the fair attracted 45 million visitors.

At the conclusion of the Fair, the corporation responsible for the Fair dissolved and donated a large amount of material to The New York Public Library. The corporation donated over 2,500 boxes of records and documents, as well 12,000 promotional photographs. These records document not only the operations of the Fair, but also present a comprehensive view of all aspects of the planning, design, execution, maintenance, and dismantling of the Fair. The photographs in particular offer a unique view of life at the time, illustrating the Fair as only visual images can do.The collection is used heavily by researchers and the public today. It supports research on a variety of subjects, including the birth of consumer society, the influence of industrial design in common objects, and the fashions of the time. For example, the collection was recently used by the New York City Parks Department to inform the commemoration of the 75th Anniversary of the Fair. The collection has served as foundational research for numerous articles, books, theses and dissertations.

Because of the popularity and importance of the collection, we wanted to make the collection as broadly accessible as possible. We began by trying to determine the copyright status for the nearly ten tons of material in the collection. The publication status of much of the material was difficult to determine. With this uncertainty, we treated the material as if it were in copyright.

We then turned to conducting a thorough, good-faith search for rights holders. We spent days combing through the legal records of the Fair to determine whether the Fair’s copyrights were ever assigned to a third party. We also tried to determine whether copyrights were assigned at the dissolution of the corporation, but could not find an answer in the collection. When the records of the Fair did not help, we searched for rights holders utilizing other methods, including searches on Google, the Copyright Office records, and other relevant sources. This search was time-consuming and, ultimately, fruitless.

Having found no copyright owner after our good-faith and reasonable search, we undertook a fair use analysis. Our analysis was informed by the development of voluntary community-driven efforts to create best practices for identifying rights holder(s), taking into account the nature of the particular material at issue, including the Society of American Archivists’ 2009 statement of best practices, as well as general guidance such as the Code of Best Practices in Fair Use for Academic and Research Libraries, developed by the Association of Research Libraries. We were also informed by various academic viewpoints, including Jennifer Urban’s article on fair use and orphan works.

Guided by our fair use analysis, we determined to move forward with digitization of portions of the collection after balancing the educational benefit of the undertaking against the risk that a rights holder might subsequently surface. Although the potential for $1.8 billion in statutory damages in the worst-case scenario was daunting, we not only digitized and posted the selections of the collection online, we also created a free iPad application to feature the digitized content. The iPad application contextualizes the content by using original essays and innovative design alongside the content created by the Fair. The application was named one of Apple’s “Top Education Apps” of 2011.

So far, no rights holder has contacted us to ask that we limit the uses of works from the Fair collection. If a rights holder wished to contact us about our uses, we have made our contact information available online and in the iPad application. We welcome any new information about the rights holder of this collection.

*Portions of this post were previously published in NYPL’s Reply Comments to Orphan Works and Mass Digitization: Notice of Inquiry.
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