Title 17, Section 105: "Subject matter of copyright: United States Government works" has been updated

Section 105 of Title 17 has been fairly short, but: the footnote on that section notes:

In 2019, the National Defense Authorization Act of Fiscal Year 2020 amended section 105 by adding “(a) In general.—” before “Copyright”; and by adding new subsections (b), (c), and (c). Pub. L. No. 116-92, 133 Stat. 1198. 

All of Section 105 now reads:

(a) In General.—Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

(b) Copyright Protection of Certain of Works.—Subject to subsection (c), the covered author of a covered work owns the copyright to that covered work.

(c) Use by Federal Government.—The Secretary of Defense may direct the covered author of a covered work to provide the Federal Government with an irrevocable, royalty-free, world-wide, nonexclusive license to reproduce, distribute, perform, or display such covered work for purposes of the United States Government.

(c) Definitions.—In this section:

(1) The term “covered author” means a civilian member of the faculty of a covered institution.

(2) The term “covered institution” means the following:

(A) National Defense University.

(B) United States Military Academy.

(C) Army War College.

(D) United States Army Command and General Staff College.

(E) United States Naval Academy.

(F) Naval War College.

(G) Naval Post Graduate School.

(H) Marine Corps University.

(I) United States Air Force Academy.

(J) Air University.

(K) Defense Language Institute.

(L) United States Coast Guard Academy.

(3) The term “covered work” means a literary work produced by a covered author in the course of employment at a covered institution for publication by a scholarly press or journal.

 Yes, there are two sebsections "c". The footnotes on the second Subsection (c) states:

When the National Defense Authorization Act of Fiscal Year 2020 added three new subsections to section 105, it designated them (b), (c), and (c). But for this typographical error, the third new subsection would have been designated as (d).

I find it interesting that the new sections (b), (c) and (c) are specific to U.S. military-related educational institutions.  This means that faculty at those institutions may be required to give the copyright in their works to the federal government. I would be curious to know what this means in reality to those faculty members. What are the positives and negatives of this?  Is this being enforced on new works only?

Reminder: Registration is open for U.S. Copyright Law in the Library

A reminder that I will be teaching an online course on U.S. Copyright Law in the Library this August. This course will cover the basics of U.S. copyright law, including how it informs what libraries, staff, and patrons can do with their materials, as well as how to stay up-to-date as copyright law evolves.

This online course will start in less than four weeks on August 3. The course will run for six weeks (ending in September). You can find more information and register at the ALA Store. Bulk and institutional pricing is available. If you have any questions, you can contact me or the folks at ALA Publishing at elsmarketing@ala.org.

This year, as libraries shifted from in-person services to providing more services online, people have recognized a need to know more about copyright law. This six-week course will provide the grounding that you need, so you can productively engage in the conversations occurring in your institution, as it continues to work through how it wants to deliver services in our changed world.

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Brammer v.Violent Hues Productions LLC: Copyright of photographs

I often start blog posts, save them, and then never return to finish them.  I suspect that I'm not the only person who does this.  Occasionally I look at my draft blog posts and wonder if any are worth completing.  This one, yes, because it is a good case to remember.  I particularly like that the Appellate Court when through the four factors of Fair Use in detail.

In June 2018, the Eastern District of Virginia, in the case of Brammer v. Violent Hues Productions, LLC, decided that photographs were facts and could not be copyrighted. As you can imagine, people's reaction to this was swift! How can a photograph be just a factual representation? Ask any professional photographer - and many amateurs - and they will tell of the work and creativity involved.  

Thankfully, an appeal was filed and the Fourth Circuit reversed the lower court decision.  The court's decision goes through the four factors of Fair Use and then states:

After examining the four factors, we conclude that none weighs in favor of Violent Hues. Considering these factors together, it is clear that the copying here fails the “ultimate test” of fair use: Violent Hues’ online display of Brammer’s Photo does not serve the interest of copyright law.

Later in the conclusion, the court states:

We reach our conclusion with the recognition that the Internet has made copying as easy as a few clicks of a button and that much of this copying serves copyright’s objectives. Many social media platforms like Twitter, Facebook, and Instagram are specifically designed for the participatory “sharing” — or copying — of content. We express no opinion as to whether such sharing constitutes fair use. We note, however,that Violent Hues’ use is not of this kind.

Violent Hues did not comment on the Photo, promote the Photo, “remix” the Photo, or otherwise engage with the Photo in a way that might stimulate new insights.

I've listed several resources below.  If you want to read something that is "brief" to start with, I would suggest the Gates article, which was written after the appellate decision.

Resources

• Stephen Carlisle. (June 21, 2018) Court Rules Photographs are “Factual Depictions;” Copying Them Is Fair Use.
• New York Intellectual Property Law Association. (October 29, 2018 ) BRIEF FOR AMICUS CURIAE NEW YORK INTELLECTUAL PROPERTY LAW ASSOCIATION IN SUPPORT OF NEITHER PARTY.
• Kirland & Ellis, LLP. (November 19, 2018) Brief for Appellee [Violent Hues Productions, LLC]
• Justia. (March 19, 2019) Brammer v. Violent Hues Productions, LLC, No. 18-1763 (4th Cir. 2019)
• Stanford University Libraries. (April 26, 2019 ) Brammer v. Violent Hues Productions, LLC
• Sara Gates. (May 6, 2019) Fourth Circuit Rules in Favor of Stock Photographer, Overturning Widely Discussed Fair Use Decision.