Implicit Transfer of Copyright in Official SCA Documents

I’ve long been curious about the legal reasoning behind a carve-out in the Society’s release-form policies which stated that it is not necessary to obtain written consent when publishing routine operational communications.

This provision appears in the November 2011 Release Forms FAQs:

No form is needed for
• correspondence from officers or autocrats
• event notices

SCA Websites: Release Forms FAQs (2011)

An expanded version of this appears in the Release Forms Handbook published in February 2023 (but confusingly dated April 2022 on its cover).

Officers may publish material created by themselves and other officers as a part of routine Society Operations without the need for a Creative Work Release form. Examples are:
• Officer announcements and reports
• Event notices and reports
• SCA Policies
• Meeting minutes
• Captions for photographs
• Official SCA documents, reports and announcements.

Release Forms Handbook (2023)

At first I assumed this was simply a matter of an implicit “permission to publish” granted by officers who were writing event announcements, reports, and the like.

But then I noticed that there must be some more sweeping principle in operation, because the January 2023 SCA Webministers Handbook was written collaboratively by a number of of volunteers (myself included), who were not asked to sign copyright assignments, and the resulting publication was marked “Copyright 2023 — The Society for Creative Anachronism, Inc.” (The same thing happened to the Release Forms Handbook, which ironically explains the importance of getting copyright-transfer agreements in writing.)

This question escalated from a mere question of curiosity to a practical matter when a local youth combat marshal suggested a revision to our East Kingdom Youth Combat Rule Book — if I wanted to incorporate their proposed new text in the next version of our manual, did I need to ask them to sign a Creative Works release form?

Because I wasn’t sure, I wrote to the Society Publications Manager, cc’ing the Society’s In-House Counsel. (See email thread attached below.)

In response, I was told that if a volunteer writes text for use in an official document, they are implicitly transferring the copyright to the SCA.

I’m not sure of the legal foundation for this, as volunteers generally do not transfer copyright by default (see Hubay v. Mendez, 2020), and 17 U.S. Code § 204(a) requires the transfer of copyright to be in writing and signed.

Nonetheless, I am not a lawyer, and I assume that the Society has some sound legal basis for this interpretation, so it seems defensible for individual officers to rely on that guidance.

[Update, April 22:] It does seem like a judgement call is required to delineate the potentially fuzzy boundaries between these emerging categories:

• “creative works” for which a release form is required,
• “reports and event announcements” for which no release form is required but for which copyright might not be transferred, and
• “official documents” for which release forms are not required and which are subject to the “implicit” unwritten transfer of copyright.

[Update, April 28:] I followed up to ask about these categories and was informed that there were in fact only two — the Society’s position is that the copyright for all material created by officers as part of routine Society operations is automatically transferred to the Society. I’m unsure of what legal basis would support this interpretation.

[Update, May 3:] I’ve been informed that these policies have been reviewed by legal counsel and the Board. I’ve replied in somewhat more forceful terms, with copies to the Society seneschal and relevant Board Ombudsman, explaining why these questions are important and how they affect me and other participants.

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From: Mathghamhain Ua Ruadháin
To: Society Publications Manager
Cc: Society In-House Counsel
Date: April 19, 2023

Hello again,

I am writing to you today in my role as the East Kingdom’s Deputy Earl Marshal of Youth Combat, with a question that came up as we are starting to work on one of our periodic revisions of the kingdom’s youth combat rule book.

The Release Forms Handbook states that:

Officers may publish material created by themselves and other officers as a part of routine Society Operations without the need for a Creative Work Release form. Examples are: … Official SCA documents, reports and announcements.

A local youth combat marshal has written some useful text about armor requirements, which I would like to incorporate into the next version of our rule book. 

Do I need to ask her to sign a release form before I use her words, or is there some legal grounds to assume that by sending the text to me she has implicitly transferred copyright to the SCA?

— Mathghamhain Ua Ruadháin

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From: Society Publications Manager
To: Mathghamhain Ua Ruadháin
Cc: Society In-House Counsel
Date: April 19, 2023

If she didn’t write it in a role as an officer or specifically for the handbook, get a release.  It is always better safe than sorry.  Just because someone sends you something that pertains to a project you are working on; it doesn’t mean you have permission to use it.

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From: Mathghamhain Ua Ruadháin
To: Society Publications Manager
Cc: Society In-House Counsel
Date: April 19, 2023

Okay — if they clearly say that they’re writing the text in order for it to be included in the rule book, does that mean that they’re implicitly transferring the copyright to the SCA and I don’t need a signature?

Thanks!

— Mathghamhain

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From: Society Publications Manager
To: Mathghamhain Ua Ruadháin
Date: April 19, 2023

Yes.

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From: Mathghamhain Ua Ruadháin
To: Society Publications Manager
Cc: Society In-House Counsel
Date: April 19, 2023

Thanks for the clarification.

My understanding of copyright law had suggested otherwise, but I am not a lawyer and I assume that the above interpretation has been vetted by someone with relevant expertise, so I’ll proceed under that basis.

— Mathghamhain

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From: Mathghamhain Ua Ruadháin
To: Society Publications Manager
Cc: Society In-House Counsel
Date: April 28, 2023

Hello, and please forgive the belated follow-up.

My original question was about handbooks, but it later occurred to me ask whether this same principle applies to other “official” material such as officer reports, event announcements, and the material chroniclers and webministers create for their official publications.

For example, the newsletters created by chroniclers are routinely marked “Copyright SCA,” but chroniclers are not asked to complete release forms for the text and images they create when assembling those newsletters — are they subject to the same implicit transfer of copyright as outlined above?

Thank you for your help in understanding these policies!

— Mathghamhain

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From: Society Publications Manager
To: Mathghamhain Ua Ruadháin
Date: April 28, 2023

That is correct.  I shudder to think of the paperwork and the associated mess it would involve.  Thankfully, we are covered.

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From: Mathghamhain Ua Ruadháin
To: Society Publications Manager, Society In-House Counsel
Date: April 28, 2023

Thank you for the clarification.

Does the Society have reliable legal advice to support this interpretation?

I ask because my non-professional reading of 17 U.S. Code § 204(a) indicates that transfers of copyright must be in writing, and recent U.S. legal decisions such as Hubay v. Mendez have held that unpaid volunteers for a nonprofit organization do not fall under the “work for hire” doctrine.

(I am less familiar with the laws in jurisdictions outside the United States where the SCA also has operations, but I wouldn’t be surprised to find that at least some of them have similar guidelines.)

— Mathghamhain

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From: Society Publications Manager
To: Mathghamhain Ua Ruadháin, Society In-House Counsel
Date: May 3, 2023

For the duration of my 20+ years working at the Society level, there has always been reliable legal counsel monitoring the copyright issues. Since I am not a lawyer, I depend on them to provide insight to keep us within the legal parameters necessary to protect the SCA. All policies pertaining to copyright issues are submitted to them for review before presentation to the Board for approval.

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From: Mathghamhain Ua Ruadháin
To: Society Publications Manager, Society In-House Counsel
Cc: Society Seneschal, Board Ombudsman for Publications
Date: May 3, 2023

That’s reassuring.

I have two follow-up questions:

1. Would it be possible to share any of the legal reasoning behind this interpretation?

2. Is this policy documented anywhere that local officers or the membership has access to?

I ask the first question because, while I am not a lawyer, I have done a fair amount of amateur research on this topic over the course of my thirty-year career buying and selling the rights to computer software, and I can’t think of any jurisprudence that would support it. US courts seem unanimous that unpaid volunteers are not subject to “work for hire” rules, and that copyright assignments must be agreed to in writing. Two Society members who work as lawyers in the US have recently confirmed they also understand the law this way, and two members who live outside the US were equally skeptical that their local jurisdictions had any provision for “implicit copyright assignment.” Again, I am not a lawyer, and I would absolutely be willing to be corrected by someone with real professional expertise in this area, but as it stands I am profoundly skeptical, and suspect that the Society is operating under an erroneous understanding of the law.

And I ask the second question because after spending many hours researching the Society’s policies around copyright while drafting the release forms handbook in 2021, it still came as a complete surprise to me to see the final version of that handbook published with a “copyright SCA” notice despite never having been asked to sign a copyright assignment agreement. Other people who have had work they created published under Society copyright notices without executing a rights assignment have been equally startled. If the idea of an implicit copyright assignment is written down anywhere, I haven’t yet been able to find it in the kingdom- or Society-level policies of the Webministry, the Chroniclers, the Seneschalate, or the Governing Documents of the SCA. 

If copyrights really are being transferred to the Society, folks working under those parameters should be informed of the details so that they can properly adhere to the resulting constraints. For example, over the last seven years, while working in my role as a branch herald, I have created a variety of heraldic imagery, and assuming that I retained copyright to those illustrations, I later published elements of that work on my personal website, making it available to others under a Creative Commons license. Moreover, I have encouraged and facilitated other Society heralds in doing the same thing with images that they have created. I know that these images have now been downloaded thousands of times, and have been integrated into third-party software projects that allow thousands of people outside of the SCA community to create heraldic images using a point-and-click interface. If the copyright to the original illustrations was implicitly transferred to the SCA at the time of its creation because I and the people drawing them were officers engaged in “routine Society operations,” then not only am I infringing on the Society’s rights, but I have been encouraging other people to do so on a massive scale, and have unknowingly exposed myself and others to significant legal liability that I need to mitigate as soon as possible.

I know you folks are busy people, with other demands on your time, and it must be annoying to receive persnickety questions about seemingly-obscure legal issues from someone with no particular authority to drive policy on this topic. Please believe me when I say that I love the SCA and have no wish to make trouble for it — I honestly believe that it would be to the Society’s benefit to grapple with this issue now, rather than leaving it as an invisible iceberg to be dug up in an adversarial setting. The Society’s non-profit status and generally-good relationships with its participants likely limit its potential civil and criminal exposure, but given the extent and duration of this practice I worry that there is still a substantial risk here, and it strikes me as the responsible thing to do to make sure this issue is surfaced for discussion.

I look forward to hearing back from you regarding the two questions laid out above.

In service to the dream,

— Mathghamhain Ua Ruadháin 

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From: Society Publications Manager
To: Mathghamhain Ua Ruadháin, Society In-House Counsel
Cc: Society Seneschal, Board Ombudsman for Publications
Date: May 15, 2023

Greetings Mathghamhain,

I do appreciate your interest and concerns for the SCA and I apologize for the delay in responding.

Addressing your questions:

1. Would it be possible to share any of the legal reasoning behind this interpretation?

I do not have access to the historical decision-making process or their reasoning. This interpretation has been in use for a very long time – at least the 20 years I have been serving at the Society level.

2. Is this policy documented anywhere that local officers or the membership has access to?

I have scoured the policies and not found any policy pertaining to release forms for officer contribution to SCA Handbooks. My understanding is that writing, updating, contributing to, or completely revamping an SCA Handbook is part of the job expectation or responsibility of the officer. I have personally never known a Society Level officer (or deputy) to sign a release form for work on a Society Handbook.

If this is a concern of yours, I do welcome you to complete a release form for your contribution to the Release Form Handbook in your capacity as Deputy to the Webminister.

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From: Mathghamhain Ua Ruadháin
To: Society Publications Manager, Society In-House Counsel
Cc: Society Seneschal, Board Ombudsman for Publications
Date: May 15, 2023

I apologize for the delay in responding.

No apologies needed — this is obviously a long-term issue rather than a particularly time-sensitive one, and I’m sure you folks have other things going on that also require your attention.

1. Would it be possible to share any of the legal reasoning behind this interpretation? 

I do not have access to the historical decision-making process or their reasoning.  This interpretation has been in use for a very long time – at least the 20 years I have been serving at the Society level.   

Thanks for the additional context here. 

For the record, I strongly encourage the SCA to seek updated guidance on this question from qualified legal counsel, as all of the lawyers I have spoken to seem confident that it is badly mistaken regarding US law, and likely also the laws of Canada, not to mention Drachenwald and Lochac.

Again, the clearest treatment of this question I can find in recent American case law is Hubay v. Mendez, which finds that volunteers are not subject to the “work for hire” provisions of US copyright law — even if they are “official volunteers” who are in some ways “directed” by the organization and receive some “minor benefits” as a result of their role — and thus that there is no “implicit” transfer of copyright in the work they create.
https://casetext.com/case/hubay-v-mendez-1

If the SCA agreed that officers were not employees but rather volunteers who by default retained copyrights to their work, that would require some adjustment, but I believe that we could find a way to handle this that would not be overly disruptive to Society operations, much as newsletters and websites now already routinely incorporate work for which the copyright is retained by contributors. I think that such a regime could operate identically to how things are done today in nearly every circumstance, without creating a significant new paperwork burden, and would be more legally defensible than the current interpretation.

2. Is this policy documented anywhere that local officers or the membership has access to? 

I have scoured the policies and not found any policy pertaining to release forms for officer contribution to SCA Handbooks.  My understanding is that writing, updating, contributing to, or completely revamping an SCA Handbook is part of the job expectation or responsibility of the officer.  I have personally never known a Society Level officer (or deputy) to sign a release form for work on a Society Handbook.

But as previously established in an earlier email exchange, this interpretation does not appear to be limited to Society Handbooks — rather it seems to include all material created by “officers as a part of routine Society operations” including all “official SCA documents, reports and announcements.” 

(Or if I’ve misunderstood the previous exchange, please let me know!)

This is a rather sweeping interpretation, and I expect that many SCA officers would be startled to learn of it.

If the Society is claiming copyright to all of this work, I think it would be prudent and responsible to inform the people doing it, so that it doesn’t come as a surprise to them, as it did to me.

If nothing else, I would greatly appreciate a one-paragraph official declaration of this policy, so that when I tell people about it I am not reduced to stringing together quotes from a series of informal emails and trying to convince them that this is official Society policy despite it never having been written down anywhere other than this one message thread.

Is there someone at the Society level who would be able to provide a brief statement clearly setting forth this interpretation of “implicit copyright assignment” and delimiting what material it applies to?

If this is a concern of yours, I do welcome you to complete a release form for your contribution to the Release Form Handbook in your capacity as Deputy to the Webminister. 

If the points raised above actually constitute a real issue, I don’t think having me sign this one form would resolve it.

The Creative Works copyright assignment form asserts that (prior to its execution) the signer is the exclusive owner of the work being transferred. If I fill that out, mightn’t that complicate matters for the Society by suggesting that I had indeed previously held the copyright for that work?

For example, if I transfer copyright for my contributions to the Release Form Handbook, and you accept it as substantive and not submitted in error, does that create difficulty for the Society Webminister Handbook, and the East Kingdom Youth Combat Rules, which also contain material which I wrote? If I sign a copyright assignment for one of those, shouldn’t I also do the same for the others to avoid creating the impression that I’ve assigned my rights to one of them and not the others? And if I submit a copyright assignment form for the text I contributed to the Society Webminister Handbook, what are we to do about the dozen or more other people who also contributed to the same document?

Putting aside the question of the Handbooks, what are we to do about the heralds who created armorial artwork as part of their work as kingdom or branch officers and then published elements of those images on my website under Creative Commons licenses, not knowing that the Society claimed the copyright in their work? 

Should I ask them to remove those illustrations from my website? (Assuming they can even remember which ones were created within the scope of their work as officers and which ones were done independently — I know this would be difficult for my own creations over the last seven years.) Should I ask the Society to transfer the copyrights for those images back to the officers who created them? Or should I change the licensing statements to declare that the copyright in those images is owned by the SCA, and ask the Society to grant me permission to continue publishing them?

Please help me make sense of this, because if I have been repeatedly violating copyright law for years, and am still actively encouraging other people to do, I clearly need to address that problem in a timely fashion.

(And conversely, the same is presumably true of the SCA itself.)

Thank you for your attention to this thorny issue.

— Mathghamhain

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From: Mathghamhain Ua Ruadháin
To: Society Publications Manager
Cc: Society In-House Counsel, Society Seneschal, Board Ombudsman for Publications
Date: June 16, 2023

I do welcome you to complete a release form for your contribution to the Release Form Handbook in your capacity as Deputy to the Webminister.

As you suggested last month, I am attaching a Creative Work Grant of Use form for my draft of the Release Form Handbook.

— Mathghamhain Ua Ruadháin