The Copyright Counseling Team Helps Clients Take Advantage of Fair Use and Public Domain

By Lindsay Harris (‘23) and Batya Kemper (‘24)

Literature and visual art have taken on a new role as technology continues to develop. The digital era has led to both concerns and excitement about the possibilities of preserving creative works and increasing access to works that might previously have been lost forever. Simultaneously, as the body of works expands, literature and visual art have both begun to build on preexisting works in a manner that raises copyright questions. During the spring semester of the 2022-23 academic year, two students in the Advanced Technology Law & Policy Clinic at the NYU School of Law, Lindsay Harris and Batya Kemper, counseled three clients operating in the literary and visual arts spaces with similar legal questions on the legal doctrines surrounding copyright, fair use, and public domain.

The team’s first client was an author who wrote her latest novel about a fictitious world in which the characters, sometimes modeled off of characters from real books, go on adventures in various existing books. The book acknowledges numerous existing novels, characters, and authors, either in passing through reference to their names or titles, or as part of the broader plot. The characters in the book often comment on these works and the book frequently integrates them into its storyline. Throughout their engagement, the students helped the author sort through how copyright doctrine might apply to her book and its numerous literary references.

The team’s second client was a professor, programmer, and artist who is undertaking a preservation project to archive artist-run spaces on websites. He compiles photos, exhibit descriptions, oral history interviews, and other materials that document former and current artist-run spaces into a webpage that memorializes these artist spaces. His motivation is that these spaces are typically informal and therefore documented poorly, and could be lost to history without a method of gathering documentation and archiving it on the internet for the world to view and remember. Because he was using both materials he created as well as materials from the artist spaces, he wanted to understand how copyright may affect best practices for preparing his archives. He also hopes to share what he has learned through creating his archives with others who seek to undertake similar efforts in the future, so the benefits of documenting artist spaces can be broadened even further.

The team’s third client was a museum working on digitizing their art reference library and making it open access. The library has more than 1 million photographic records of artworks, a significant number of which are unique — in other words, no other known photographic record of that work exists in public collections. Digitizing this collection and making it open access involves posting these images online, ideally under a “No Rights Reserved” or CC0 license. This allows artists, historians, educators, and anyone else to use these images however they choose. Posting these collections requires doing a copyright analysis for each of the photographic records and the underlying works. In order to help them with this labor-intensive process, the team created a set of flowcharts and explanatory tables that would allow the reference librarians to do the fact gathering necessary to determine the copyright status of works in their collection.

Both team members enjoyed working with and learning from these clients. Team member Lindsay Harris said: “Helping our clients understand how copyright doctrine applies to their works was incredibly rewarding. I loved contributing in small part to ensuring their creative efforts could be shared with the world.” And team member Batya Kemper added: “Getting to collaborate with real clients and do impactful work is one of the best parts of law school.”