I agree with Pat and Joan about the importance of continuing a discussion until differing opinions are resolved. I specifically asked Pat to comment, but I also said, " I await the comments of other list members." Joan picked a statement about distribution with which she disagreed. She gave her reason(s), then I quoted copyright law to support my position. I think that this is the way the list should work. Most of the members of the list remain in the background, but are here to learn. Misstatements should be corrected on the list rather than privately so that list members don't learn the wrong thing. Continuing with the discussion about distribution rights....... Pat wrote: Stephen Fishman says: "If the speech was given extemporaneously (improvised, not written down in advance) but recorded with the speaker's permission, the author/speaker usually owns the copyright in the speech itself, the same way as if it was written down. But the recording of the speech belongs to the people who recorded it." [For those not familiar with the name, Stephen Fishman is the author of several copyright books.] Notice in the first sentence that Fishman confirms what I had concluded in a previous email; that taping/recording a speech that was not written down (therefore uncopyrightable) will in itself result in the speaker acquiring/owning the copyright of the speech. I don't interpret the second sentence to mean that the recorder owns the copyright to the recording. To me, it says simply that the single copy of the recording is owned by the recorder. That is like a person owning a copy of a book. **I don't think that distribution rights to the recording resides with the recorder. I believe the recorder can only distribute the recording with the permission of the copyright holder of the speech.** This permission can be verbal if it is non-exclusive, but the speaker should determine the intentions of the recorder. Does he/she want to make a few copies and distribute them to some friends, or does the recorder want to make hundreds of copies and sell them? I invite agreement or disagreement with my conclusions in the previous paragraph, especially the part between the asterisks. Cliff Lamere >

Being naive about such things.... I always thought a verbal contract was only as good as the paper it was written on, hence not worth anything. Pat Asher <pasher@ee.net> wrote: At 11:03 AM 4/15/2006, you wrote: >I made an assumption based upon Richard's original post--which stated: > >"You give a lecture at a genealogy convention and, with your approval, it is >taped (either audio or video). > >Absent any specific contract point on this, who owns the copyright - the >person who gave the lecture or the person who taped it?" > >...From the above I figurerd there IS a written contract and perhaps I'm >assuming too much "Contacts" can be verbal or written :) A verbal contact (permission given orally) can only transfer nonexclusive rights to distribute. The speaker would retain copyright to the speech itself, assuming it was not a work for hire or s/he was not a government employee where the speech would immediately be public domain. The speaker would also retain all other rights to distribute as part of the exclusive rights included in their copyright. They could even prepare and distribute a competing recording. Think of a news reporter who video tapes a news conference or seminar. The speaker has invited the media to record and report the event (given permission) The speaker retains copyright to his speech. The news reporter/agency holds the copyright to the video tape and can distribute it. However, the speaker can also sell/distribute recordings of his speech/seminar. If the recorder wants exclusive rights to distribute recordings of the speech, he must obtain that exclusive right from the copyright holder in writing. Pat ==== COPYRIGHT Mailing List ==== RootsWeb's mailing lists are filtered and attachments are removed. A virus that is distributed as an attachment will not reach you through a RootsWeb mailing list. For further information about Viruses, Trojans, Worms etc., go please to: http://helpdesk.rootsweb.com/virus.html. Think to keep your Anti-Virus up-to-date! ============================== Search Family and Local Histories for stories about your family and the areas they lived. Over 85 million names added in the last 12 months. Learn more: http://www.ancestry.com/s13966/rd.ashx

In a message dated 4/15/2006 11:32:06 AM Eastern Standard Time, pasher@ee.net writes: "Contacts" can be verbal or written :) There is an old saying in Contract Law that "a verbal contract isn't worth the paper it isn't printed on." While verbal contacts can be enforced first you have to get the parties involved to agree on what was said--and therein lies the rub. ;) Joan

At 11:03 AM 4/15/2006, you wrote: >I made an assumption based upon Richard's original post--which stated: > >"You give a lecture at a genealogy convention and, with your approval, it is >taped (either audio or video). > >Absent any specific contract point on this, who owns the copyright - the >person who gave the lecture or the person who taped it?" > >...From the above I figurerd there IS a written contract and perhaps I'm >assuming too much "Contacts" can be verbal or written :) A verbal contact (permission given orally) can only transfer nonexclusive rights to distribute. The speaker would retain copyright to the speech itself, assuming it was not a work for hire or s/he was not a government employee where the speech would immediately be public domain. The speaker would also retain all other rights to distribute as part of the exclusive rights included in their copyright. They could even prepare and distribute a competing recording. Think of a news reporter who video tapes a news conference or seminar. The speaker has invited the media to record and report the event (given permission) The speaker retains copyright to his speech. The news reporter/agency holds the copyright to the video tape and can distribute it. However, the speaker can also sell/distribute recordings of his speech/seminar. If the recorder wants exclusive rights to distribute recordings of the speech, he must obtain that exclusive right from the copyright holder in writing. Pat

In a message dated 4/15/2006 11:08:39 AM Eastern Standard Time, pasher@ee.net writes: P.S. Joan and I are old friends and work together to refine our respective comprehension of many subjects, not just copyright :) Right...and the key to this type of discussion is listening to what the other person has to say. The point isn't to post an opinion and defend it right or wrong--the key is to have a give and take discussion and pay attention to the points raised by the other person. That is how we all learn. We start with a question and response, and then get into all the "what ifs." Joan

At 10:24 AM 4/15/2006, you wrote: >While I am not a person who makes list rules, I think that when a string >gets to the argument stage (prolonging far beyond the interest level of >most people other than the main posters arguing), it might make sense to >take it private. You know the old saying about the futility of trying to >change someone's point of view on religion and politics. It likely also >applies to the positions people take in many list arguments. >----- Original Message ----- From: "Pat Asher" <pasher@ee.net> >To: <COPYRIGHT-L@rootsweb.com> >Sent: Saturday, April 15, 2006 7:54 AM >Subject: Re: [COPYRIGHT] Distribution, a right of the copyright holder / >was "Who owns... Deason, First, I was specifically asked to comment on the question by Cliff, see http://archiver.rootsweb.com/th/read/COPYRIGHT/2006-04/1145078152 Second, as I'm sure you are aware, copyright law is complex. The devil is often in the details. Discussing those details and how they apply to various possible scenarios is part and parcel of understanding. Taking a discussion (not argument or flaming) private would IMO be a disservice to the other subscribers who want to learn and understand, as well as to those who visit the archives now or in the future and find unrefuted misstatements or incorrect interpretations of the law. Pat P.S. Joan and I are old friends and work together to refine our respective comprehension of many subjects, not just copyright :)

In a message dated 4/15/2006 9:01:19 AM Eastern Standard Time, pasher@ee.net writes: Unless the right to distribution was granted exclusively (which must be in writing) the speaker/author still retains the right to distribute in other ways and/or to other markets. I made an assumption based upon Richard's original post--which stated: "You give a lecture at a genealogy convention and, with your approval, it is taped (either audio or video). Absent any specific contract point on this, who owns the copyright - the person who gave the lecture or the person who taped it?" ...From the above I figurerd there IS a written contract and perhaps I'm assuming too much but my assumption in this type of agreement is that the right to distribute would be spelled out as belonging to the person doing the recording--that this would pretty much be standard. I just can't figure why anyone would make a recording (other than someone wanting to tape it for their personal reference) unless the end goal was to distribute. Now in a specific case, Bob Velke has stated that he did make such a contract with Richard--but I'm assuming the original question was a generic one. Maybe I need more coffee this morning before assuming anything further. ;) Joan

In reference to this entire string and not just the last entry, it is interesting on this (and almost all the lists to which I subscribe) how these things go through stages. First there is a question or statement (information). Then there is a reply (information). Then there are multiple replies giving different answers and/or points of view (also information). Information and sharing is why I subscribe to all of my lists, and I assume it is the same for other subscribers. At this point, I am still following the string. However, at some point, people begin to argue their point versus another respondent's point. This is when we have left information for difference of opinion and the debate of the validity of a given point. When the wife and I have a disagreement out in public, we usually express separate points of view. However, when we come to the argument stage supporting our own point and showing why the other's point is not valid, we take it private -- out of earshot of others, to the car, or home. While I am not a person who makes list rules, I think that when a string gets to the argument stage (prolonging far beyond the interest level of most people other than the main posters arguing), it might make sense to take it private. You know the old saying about the futility of trying to change someone's point of view on religion and politics. It likely also applies to the positions people take in many list arguments. ----- Original Message ----- From: "Pat Asher" <pasher@ee.net> To: <COPYRIGHT-L@rootsweb.com> Sent: Saturday, April 15, 2006 7:54 AM Subject: Re: [COPYRIGHT] Distribution, a right of the copyright holder / was "Who owns... > At 03:07 AM 4/15/2006, you wrote: >>Getting back to the original question at hand...My point is that he >>doesn't >>hold the right to distribution once he agrees to the recording--he's given >>the right away to the company who does the reocording. No company would >>agree >>to record a presentation if it wasn't for the specific purpose of having >>the >>right to distribute/sell it. The only way the lecturer would possess the >>right to distribute his lecture is if he recorded it himself. Remember >>that the >>mere presentation of a live lecture doesn't create a copyright. Placing >>that >>lecture/content into a fixed medium creates the copyright--therefore, >>before >>the recording in many cases there would be no copyrighted content for >>anyone >>to possess. > > Joan, > > Cliff is correct. Unless the right to distribution was granted > exclusively (which must be in writing) the speaker/author still retains > the right to distribute in other ways and/or to other markets. The > copyright in an audio recording of an extemporaneous speech is separate > and apart from the copyright iin the speech itself. The speaker is the > author of the words. The person making the recording is the author of the > recording. > > Stephen Fishman says: > "If the speech was given extemporaneously (improvised, not written down in > advance) but recorded with the speaker's permission, the author/speaker > usually owns the copyright in the speech itself, the same way as if it was > written down. But the recording of the speech belongs to the people who > recorded it." > > Pat > > > > > ==== COPYRIGHT Mailing List ==== > LATIN-WORDS-L is a mailing list for anyone with a genealogical or > historical interest in deciphering and interpreting written documents in > Latin from earliest to most recent 20th Century times, and discussing old > Latin words, phrases, names, abbreviations and antique jargon. To > subscribe, send subscribe to mailto:LATIN-WORDS-L-request@rootsweb.com > (Mail Mode) or mailto:LATIN-WORDS-D-request@rootsweb.com (Digest Mode) > > ============================== > Search Family and Local Histories for stories about your family and the > areas they lived. Over 85 million names added in the last 12 months. > Learn more: http://www.ancestry.com/s13966/rd.ashx > >

At 03:07 AM 4/15/2006, you wrote: >Getting back to the original question at hand...My point is that he doesn't >hold the right to distribution once he agrees to the recording--he's given >the right away to the company who does the reocording. No company >would agree >to record a presentation if it wasn't for the specific purpose of having the >right to distribute/sell it. The only way the lecturer would possess the >right to distribute his lecture is if he recorded it himself. Remember >that the >mere presentation of a live lecture doesn't create a copyright. Placing >that >lecture/content into a fixed medium creates the copyright--therefore, before >the recording in many cases there would be no copyrighted content for anyone >to possess. Joan, Cliff is correct. Unless the right to distribution was granted exclusively (which must be in writing) the speaker/author still retains the right to distribute in other ways and/or to other markets. The copyright in an audio recording of an extemporaneous speech is separate and apart from the copyright iin the speech itself. The speaker is the author of the words. The person making the recording is the author of the recording. Stephen Fishman says: "If the speech was given extemporaneously (improvised, not written down in advance) but recorded with the speaker's permission, the author/speaker usually owns the copyright in the speech itself, the same way as if it was written down. But the recording of the speech belongs to the people who recorded it." Pat

At 01:15 AM 4/15/2006, you wrote: >I don't think a verbal contract (agreement) would take precedence over the >copyright requirement that the copyright transfer be in writing, but that >would be an interesting question for Pat Asher. Transfer of exclusive rights must be in writing and signed by the owner. "Transfer of a right on a nonexclusive basis does not require a written agreement." http://www.loc.gov/copyright/circs/circ1.html It is on this basis that RootsWeb acquires the right to archive and redistribute mailing list posts under the AUP. By posting, the poster grants RootsWeb a nonexclusive right to redistribute. The poster/copyright holder may still "distribute" elsewhere as desired. Pat

Joan said: >No company would agree to record a presentation if it wasn't for the >specific purpose of having the >right to distribute/sell it. I did -- and I just confirmed it to Dick in the original thread. Bob Velke Wholly Genes Software -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.1.385 / Virus Database: 268.4.1/311 - Release Date: 4/13/2006

In a message dated 4/15/2006 2:53:11 AM Eastern Standard Time, clifflamere@nycap.rr.com writes: The author of an email holds the copyright, but also holds the distribution rights. When a person writes to a mailing list, it is with the assumption that the email will be distributed. ---- Getting back to the original question at hand...My point is that he doesn't hold the right to distribution once he agrees to the recording--he's given the right away to the company who does the reocording. No company would agree to record a presentation if it wasn't for the specific purpose of having the right to distribute/sell it. The only way the lecturer would possess the right to distribute his lecture is if he recorded it himself. Remember that the mere presentation of a live lecture doesn't create a copyright. Placing that lecture/content into a fixed medium creates the copyright--therefore, before the recording in many cases there would be no copyrighted content for anyone to possess. Joan

Joan, I'm disappointed that you disagree with several of my conclusions. That doesn't leave much with which you did agree. I'd be happy to discuss each of your disagreements, one at a time. You said, "I disagree with several of your conclusions but the most glaring is... 'Distribution is a right of the copyright holder.'" You go on to say, "Distribution rights don't always go hand in hand with copyright. Take RootsWeb mailing lists for example. We own the copyright to any original text of our emails to list--and yet we grant RootsWeb (per the AUP) the right to distribute and redistribute." You just about proved my point. The author of an email holds the copyright, but also holds the distribution rights. When a person writes to a mailing list, it is with the assumption that the email will be distributed. Therefore, the copyright holder is implicitly granting the mailing list the right to distribute the copyrighted email. We couldn't "grant RootsWeb... the right to distribute and redistribute" if we didn't have the right to grant it. Owning the copyright is what gives us the right to control distribution. See circular 92 of the U.S. Copyright Office (next). http://www.copyright.gov/title17/92chap1.html#106 "§ 106. Exclusive rights in copyrighted works Subject to sections 107 through 122 [fair use, educational use, etc.], the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; ***(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;" <snip> [rights 4-6 were omitted] ~~~~~~~~~ Joan, if you still disagree about the copyright owner having the right to control distribution, I'd like to hear your reasons. If you now agree, let's discuss the next conclusion of mine with which you disagree. Cliff Lamere ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ JYoung6180@aol.com wrote: > >In a message dated 4/15/2006 1:28:02 AM Eastern Standard Time, >clifflamere@nycap.rr.com writes: > >Distribution is a right of the copyright holder. > > >I disagree with several of your conclusions but the most glaring is the >above. Distribution rights don't always go hand in hand with copyright. Take >RootsWeb mailing lists for example. We own the copyright to any original text >of our emails to list--and yet we grant RootsWeb (per the AUP) the right to >distribute and redistribute. > >Joan > > > > >

In a message dated 4/15/2006 1:28:02 AM Eastern Standard Time, clifflamere@nycap.rr.com writes: Distribution is a right of the copyright holder. I disagree with several of your conclusions but the most glaring is the above. Distribution rights don't always go hand in hand with copyright. Take RootsWeb mailing lists for example. We own the copyright to any original text of our emails to list--and yet we grant RootsWeb (per the AUP) the right to distribute and redistribute. Joan

Richard, A copyright can only be given away or sold to another person or organization if it is done in writing. Since the convention organizer would not likely have asked for the presenter to sign away the copyright to a talk, the organizer could not obtain the copyright. In a 'work for hire,' the creator holds the copyright unless the hiring company, as a condition of employment, requires that the copyright pass to the company. Being in business, and being familiar with such things, they would almost certainly require that something be signed to that effect. Being paid for a speech does not mean that the presenter loses the copyright. The average genealogist would not know enough to require a written agreement when, for example, they hire someone to make a translation of a document for them. The translator maintains legal control of the copyright of the translation unless something is put in writing. In the absence of a written transfer of the copyright, I do not believe that the person paying for the translation has the legal right to publish the translation without the translator's written permission. I don't think a verbal contract (agreement) would take precedence over the copyright requirement that the copyright transfer be in writing, but that would be an interesting question for Pat Asher. "Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement." http://www.copyright.gov/circs/circ1.html (see Transfer of Copyrights) On the same page see "What is Not Protected by Copyright?" There would be no protection for "works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)." The presenter may have put the speech on paper before giving it, in which case he/she owned the copyright even before it was given. If it was not written down, it became "fixed in a tangible form" when it was recorded in audio or video. So the speech itself would have become copyrighted by the presenter when it was recorded. The question remaining is, "Does the recorder get a copyright on the recording of the speech?" Although skill is required, I don't think there is the required creativity when making an audio recording (some may disagree with that view). But, I think there is the required creativity when making a video, just as there is when taking a photograph. The video was made with the presenter's permission. Assuming there were no extenuating circumstances, I think the videographer owns the copyright on the video. Distribution is a right of the copyright holder. The right to distribute the speech is at odds with the right to distribute the video. As illogical as it may seem, I conclude that despite owning the copyright of the video, the videographer would not be able to distribute the video of the copyrighted speech without the permission of the presenter. I have never seen a situation quite like this before, so I await the comments of other list members. Did I go astray somewhere in this analysis? Cliff Lamere ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Richard Pence wrote: > An exchange in another list raised this issue in my mind. > > You give a lecture at a genealogy convention and, with your approval, > it is taped (either audio or video). > > Absent any specific contract point on this, who owns the copyright - > the person who gave the lecture or the person who taped it? > > Richard P. > Fairfax, Virginia > > > > ==== COPYRIGHT Mailing List ==== > RootsWeb's mailing lists are filtered and attachments are removed. A > virus that is distributed as an attachment will not reach you through > a RootsWeb mailing list. For further information about Viruses, > Trojans, Worms etc., go please to: > http://helpdesk.rootsweb.com/virus.html. Think to keep your Anti-Virus > up-to-date! > > ============================== > Search the US Census Collection. Over 140 million records added in the > last 12 months. Largest online collection in the world. Learn more: > http://www.ancestry.com/s13965/rd.ashx >

W David Samuelsen <dsam@sampubco.com> wrote: > This is best asked at the National Genealogical Society office which is > located in Arlington, VA (I presume is next to Fairfax, VA) Yes, David, the NGS headquarters is not far from where I live. I even know the phone number. Having given several presentations before NGS and other national conferences, I am quite sure the various contracts involving the NGS, recording firms and presenters make it clear that ownership rights of recorded presentations resides with the presenter and he or she is entitled to any royalties that may accrue from sales of the tape. However, please note that my question was NOT who owns the copyright for a presentation at an NGS conference, but who owns the copyright ABSENT a prior agreement. Richard

David said to Dick Pence: >>You give a lecture at a genealogy convention and, with your approval, it >>is taped (either audio or video). >>Absent any specific contract point on this, who owns the copyright - the >>person who gave the lecture or the person who taped it? > >This is best asked at the National Genealogical Society office which is >located in Arlington, VA (I presume is next to Fairfax, VA) At the National Genealogical Society (and most other national society) conferences, the recording company typically issues contracts to speakers, spelling out their respective rights to the audio recordings. In spite of such contracts, however, there has been a lot of unpleasantness in recent years between speakers and the recording company surrounding copyright, sales of audio tapes, royalty payments, etc. As a result, the NGS Board has not invited any recording company to its annual conference which this year is in Chicago, 7-10 June 2006 (www.ngsgenealogy.org) so those lectures will not be recorded at all. We hope that we can return to recording lectures for future conferences. Dick's question may have been prompted by the fact that he will be a speaker my company's "Genealogy Conference and Cruise", Nov 11-18 2006 (http://www.whollygenes.com/cruise.htm) and he has asked that his presentation be recorded. Dick, I am happy to provide you with a contract specifying that you have exclusive rights to that audio recording. Bob Velke member, Board of Directors, National Genealogical Society and President, Wholly Genes Software -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.1.385 / Virus Database: 268.4.1/311 - Release Date: 4/13/2006

I think that there are 2 answers to that question. I person could say , the speaker because he gave only her, permission to tape it , no other , he did not give her permission to sell it .. The second would say , neather because there was no contract made . Sounds right to me , Now lets hear from other's , Minnie Ann

This is best asked at the National Genealogical Society office which is located in Arlington, VA (I presume is next to Fairfax, VA) David Samuelsen Richard Pence wrote: > An exchange in another list raised this issue in my mind. > > You give a lecture at a genealogy convention and, with your approval, it > is taped (either audio or video). > > Absent any specific contract point on this, who owns the copyright - the > person who gave the lecture or the person who taped it? > > Richard P. > Fairfax, Virginia > > > > ==== COPYRIGHT Mailing List ==== > RootsWeb's mailing lists are filtered and attachments are removed. A > virus that is distributed as an attachment will not reach you through a > RootsWeb mailing list. For further information about Viruses, Trojans, > Worms etc., go please to: http://helpdesk.rootsweb.com/virus.html. Think > to keep your Anti-Virus up-to-date! > > ============================== > Search the US Census Collection. Over 140 million records added in the > last 12 months. Largest online collection in the world. Learn more: > http://www.ancestry.com/s13965/rd.ashx > > >

In a message dated 4/14/2006 6:31:15 PM Eastern Standard Time, jpatter@comcast.net writes: another thought.... it might depend on the circumstances of the presentation. IF you were a paid presenter, the presentation and thus the recorded copy could be considered a "work for hire" and thus the © would belong to the group who paid you?? If a gratis presentation, would think the copyright belongs to the presenter. ?? Joe Joe- Yes--if this was a work for hire then any copyright--if one is applicable, would belong to the company who hired the presenter to prepare and give the lecture--BUT--the recording could still be copyrighted by the company doing the recording. I'd think there would still need to be a fixed tangible record of the presentation (other than the film/audio recording) for there to be any copyright to anyone else. Joan