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The Copyright Licensing Office (CLO) provides assistance, services, tools, and resources to the faculty, staff, and students of Brigham Young University to successfully navigate the challenging landscape of copyright.

Fair Use Week

February 20-24, 2017 is fair use week—an annual celebration of the doctrine of fair use organized by the Association of Research Libraries. Click here for more information and help spread the word. #fairuseweek

Mission

The mission of the BYU Copyright Licensing Office is to ensure compliance with copyright laws by providing education and training, assuring effective licensing practices, resolving unauthorized use of copyright protected materials, and remaining current with copyright law and policy developments.

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Feb 15, 2017

Former Student Sues Artist’s Heirs For The Right To Include Copyrighted Artwork In Master’s Thesis

Solomon v. O’Connor, 17-cv-1011 (D. Mass.)
By Tyron Jensen

On January 23, Robert Solomon filed a complaint for declaratory judgment against Gwen, James, and Robert O’Connor. The O’Connors are the niece and nephews of the late artist Joseph Stapleton and inherited various drawings created by Stapleton. While he was a graduate student at Tufts University, Solomon—a protégé of Stapleton—decided to write his master’s thesis paper and a potential book covering the life and work of his mentor. The O’Connors provided Solomon full access to thousands of Stapleton’s drawings for the purpose of preparing his thesis and manuscript. After a disagreement over editorial control of the works, Solomon alleges that James O’Connor purported to exercise his copyrights in the Stapleton drawings and refused permission for Solomon to include them in his thesis and manuscript. Solomon seeks a declaratory judgment of non-infringement of copyright.

Solomon sought permission from Gwen and James O’Connor, who were in possession of the Stapleton drawings, to use the artwork in his thesis and manuscript. In response to this request, the O’Connor’s personally delivered all of the Stapleton drawings to Solomon’s residence. Solomon alleges that the O’Connors “placed no limit on [Solomon’s] access to, or reproduction or other use of, the Stapleton Drawings . . . They did not even communicate a limit on the amount of time [Solomon] could retain possession of the Stapleton Drawings, before returning them.” Therefore, Solomon contends that he was given an implied, if not express, license to reproduce, display, distribute and create derivative images of the Stapleton drawings.

Solomon alleges that, in reliance upon this license, he “spent numerous hours cataloging, studying, imaging and analyzing the Stapleton Drawings” over the next two years. Solomon completed a draft of his thesis paper and made progress on the manuscript he hoped to publish.

Prior to submitting his thesis, Solomon contends that James O’Connor demanded to review the completed thesis and any manuscript prior to publication. Solomon denied this request. According to the complaint, O’Connor then asserted his copyright interest in the Stapleton drawings and refused permission for Solomon to include them in his thesis and manuscript. As a result, Solomon did not submit his completed thesis.

Solomon’s complaint is seeking: (1) a declaratory judgment for non-infringement based on license; (2) a declaratory judgment for non-infringement based on fair use; and (3) a declaratory judgment of abandonment and transfer of ownership.

Feb 08, 2017

A&M’s Unoriginal History of the Original 12th Man

Bynum v. Texas A&M Univ. Athletic Dept., 17-cv-00181 (S.D. Tex.)
By Tyron Jensen

On January 19, 2017, sports author Michael Bynum filed a copyright infringement suit against Texas A&M University Athletic Department and the University’s 12th Man Foundation. Bynum’s complaint alleges that the defendants published an article in 2014 on the official website for Aggie athletics, which copied extensively from portions of an unpublished book that Bynum was writing at the time.

The book at issue was entitled 12th Man: The Life and Legend of Texas A&M’s E. King Gill. Bynum hired well-known Texas sportswriter, Whit Canning, on a work-for-hire basis to use Bynum’s research to write a biography of Gill, which Bynum intended to publish as the opening chapter of the book.

According to the complaint, Bynum provided draft copies of the book (including the biography) to A&M’s athletic department in 2010, in hopes of locating additional photographs for the book. Although these drafts included a copyright notice and were shown to A&M’s staff for their “review” only, Bynum alleges that on January 19, 2014, the A&M athletic department published a nearly verbatim copy of his copyrighted biography of Gill on its website. On January 22, Bynum contacted A&M and succeeded in having the article removed from the website.

Although the article was posted online for only three days, Bynum contends that it was disseminated to hundreds of thousands of people because of A&M’s widespread promotion of it. Bynum’s book has not been published; he claims that the prospects for a successful print run have been destroyed, because these are the very people that might otherwise be interested in purchasing the book. As a result, Bynum is suing for copyright infringement, seeking an unspecified amount of damages.

Jan 30, 2017

Are Public Universities Immune from Copyright Infringement?

Nettleman v. Florida Atlantic University, 16-cv-81339 (S.D. Fla.)
by Tyron Jensen

On January 5, 2017, the U.S. District Court for the Southern District of Florida dismissed a complaint for copyright infringement filed by Dr. Charles Nettleman against the Florida Atlantic University Board of Trustees. The complaint alleged that FAU published Nettleman’s copyrighted teaching materials—without his consent—to students enrolled in certain courses through its learning management system, Blackboard. (click here for a more in-depth review of the complaint.)

FAU moved to dismiss the complaint on the grounds that, as a public university, it should be immune from federal copyright infringement lawsuits under the Eleventh Amendment. The motion presented an unsettled issue: “under what circumstances, if any, does the Copyright Remedies Clarification Act (“CRCA”) abrogate the States’ sovereign immunity, pursuant to Section 5 of the Fourteenth Amendment?” In resolving the question, the court recognized that “a copyright is a property interest protected under the Due Process Clause,” which cannot be deprived without due process of law.

One option for providing due process is a pre-deprivation hearing. But this option is “not required where the complaint did not allege that the university defendant acted on an established state procedure that was ‘designed to deprive individuals of their copyrights.'” Nettleman’s complaint alleged that three procedures had the purpose of depriving him of his property: (1) that FAU ignored Nettleman’s refusal to use his materials; (2) that it allowed other professors to access and distribute his materials; and (3) that it limited access to Blackboard in a manner designed to prevent copyright owners from becoming aware of infringement.

The court considered each of these allegations in turn, and determined that none of them were established state procedures, because they did not involve any FAU officials “implementing a generalized government policy to appropriate copyrighted material.” Rather, the court concluded that “Nettleman’s allegation is tantamount to an accusation of ‘administrative negligence’ for FAU’s failure to institute ‘better procedures’ that might have blocked access to his Materials.”

Thus, the court held that due process did not require a pre-deprivation hearing, “so long as a meaningful post-deprviation remedy for the loss is available.” Here, the court found that the complaint failed to allege that Nettleman’s options for post-deprivation remedies were inadequate, and suggested that a common law tort suit might be able to make him whole.

As a result, the court concluded that FAU had sovereign immunity—not abrogated by CRCA in this case—and thus dismissed Nettleman’s complaint for copyright infringement.