Ford manuscript. A few weeks before the publication of the Time article, The Nation published a 2,250-word article that included about 300 copyrighted words (verbatim quotes, actually) from the as yet unpublished manuscript. With its article scooped, Time cancelled its agreement with Harper & Row, and Harper & Row sued The Nation. Although The Nation used less than 1% from the Harper & Row manuscript, Harper & Row won.
A court may consider not only the amount taken from the first work, but also how much of the new work includes material that was copied from the first one. In other words, if the author of a twenty-page article copies twelve pages from another person’s work, 60% of the new work (twelve of the twenty pages) really is someone else’s. Needless to say, “the more the merrier” does not bode well for defendants in such cases.
Because much library copying involves copying articles, it is important to understand that there are usually two levels of copyright protection for periodicals. First, the publisher holds a copyright in the entire periodical issue as a “collective work”, provided that the selection and arrangement of the contents meet the originality requirements for copyright protection.[1]
Second, there is copyright in each individual article. Copyright in an article is held by its author, unless the author transfers the copyright to another person or entity. If you want to use an article, and that use is not permitted by section 107 or another provision of the Copyright Act, you will need permission from whoever holds copyright in the article. In most cases it probably is the author, but many journals require authors to transfer copyright in their articles to the publisher. If you are copying an entire issue of a periodical, you may need to secure permission from whoever holds copyright in the articles, as well as from whoever owns copyright in the issue as a whole.
Copying from newsletters is even more problematic, and copying entire issues of newsletters is particularly frowned upon. A library should not
- ↑ “[T]o the extent that the compilation of a journal issue involves an original work of authorship, the publishers possess a distinct copyright in each journal issue as a collective work.” American Geophysical Union v. Texaco, 60 F.3d 913, 918 (2d Cir. 1994). Issues of illustrated magazines such as Rolling Stone or Time clearly warrant copyright protection as collective works because of the creativity involved in selecting and arranging the articles, photographs and graphics. Other periodicals (such as law reviews) may arguably lack such creativity, but the safest approach is to treat all periodical issues as collective works.
