This post was written by Brandy Karl, Copyright Officer, Penn State University Libraries, as part of Fair Use Week 2015.
The William Dorsey Scrapbook collection, owned by Cheyney University of Pennsylvania, is a series of organized clippings from newspapers and other sources, meticulously collected and arranged by William Dorsey, a prominent African American artist in 19th century Philadelphia. His scrapbooks chronicled everything from art to crime, but give particular insight into contemporary black life of that era. W. E. B. DuBois’ book The Philadelphia Negro: A Social Study was based in part on the material found in the Dorsey Scrapbooks.
The materials collected by Dorsey from 1870 through 1923 are in large part in the public domain,* and pose few legal problems in terms of digitizing the scrapbooks and making them available to the public online for further study and research. However, the Dorsey collection and other memory books, scrapbooks, and similarly compiled collections are similar, and in some ways identical to the work that is done in library archives around the country. Many of the resources that are collected, curated, contextualized, and recontextualized are still copyrighted, posing significant legal questions as to the extent they may be digitized and made accessible to the public.
The fair use doctrine is the part of copyright law that allows users of copyrighted material to do so without payment or permission. The Association of Research Libraries’ Code of Best Practices in Fair Use for Academic and Research Libraries provides fair use guidelines for library activities, including the digitization and preservation of items like these, as well as the creation of digital collections of copyrighted archival and special collections material (in essence, a very large scrapbook).
It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.
Subject to a variety of considerations, the ARL urges its members to rely on fair use to enable online access to collections of great value. The transformation of the often mundane correspondence, news clippings, and photographs from their narrow original purposes into collections with scholarly and educational purpose supersedes the object of the original copyrighted works, “altering the original with new expression, meaning, or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
Transformativeness is one of the hallmarks of fair use, and I’d like to share a passage that resonates strongly with the idea that the reuse of copyrighted works can result in collections of great value. In Writing With Scissors: American Scrapbooks from the Civil War to the Harlem Renaissance, Ellen Gruber Garvey writes (in a chapter entitled “Reuse, Recycle, Recirculate” and a subheading of “Creating New Value”)
Clipping and saving the contents of periodicals in scrapbooks is a form of active reading that shifts the line between reading and writing. Readers become the agents who make or remake the meaning and significance of their saved items. The fact that recontextualizing newspaper items into a scrapbook changes their value was a transformation that struck nineteenth-century readers with great force. The transformation from trash to treasure, the instability of value, and the potential of the disregarded and marginal to reveal astonishing worth are themes that appear repeatedly in nineteenth-century writing… Even when copyright locks down the right to reproduce a text, readers have the option of moving an old text to a new context, creating a new tier of private circulation: clipping text out of newspapers, pasting them into scrapbooks (or today onto web pages), and circulating this new compiled version (47-48).
So too do these themes appear in our own contemporary musings of authorship, copyright, and fair use. Although Garvey’s work mentions copyright a few times in her 250 page exploration of authorship in recontextualized material, she never once mentions fair use. Nonetheless, Garvey elucidates a brilliant argument for using the fair use doctrine to assist libraries, archivists, and individuals in their use and reuse of copyrighted material. For this Fair Use Week, I call on us to consider how we might find our collections more than a bare assortment of copyrighted material, how our collections are like these scrapbooks, and how libraries and individuals “remake the meaning and significance of their saved items.”