Update: SCA Disclaims Copyright to Heraldic Officers’ Work

Earlier this year I learned that the SCA has long relied on an unwritten interpretation of copyright law that does not seem to be well supported.

I’ve encouraged Society leadership to reconsider this approach, motivated in part by the fact that this would have implications for my work on the Book of Traceable Heraldic Art, but it’s been difficult to make much headway and now a month has passed since my last email without any reply.

While I am not a lawyer, I am profoundly skeptical that the Society’s interpretation holds any water, and so I have decided to move forwards without giving it any credence, as laid out in the letter below.

[Update:] I’m very happy to report that the Society Seneschal has responded, stating that they are not claiming copyright to the armorial depictions produced by heraldic and scribal officers.

It remains unclear to me on what grounds they claim copyright for some creative works created by volunteers but renounce it for others — however, as a first step in the right direction, I am pleased by this declaration.

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From: Mathghamhain Ua Ruadháin
To: Society Seneschal, Society In-House Counsel
Cc: Society Publications Manager, Board Ombudsman for Publications, Laurel Sovereign of Arms, Board Ombudsman for Heralds
Date: June 12, 2023

Good day,

I am writing to you because four weeks have passed since I asked for guidance regarding the Society’s stance on copyright for officers’ creative works and I have not received a response.

Given that silence, I am going to proceed according to my existing understanding of copyright law, but I wanted to let you know of my intentions so there were no surprises later.

To recap, in April I learned that the SCA has for decades been operating under an unwritten and seemingly secret interpretation of copyright law that treats the creative works produced by officers as part of “routine Society operations” or “the job expectation or responsibility of the officer” as if they automatically became the property of the SCA.

As I explained in May, this appears to be contrary to both the plain language of US copyright statutes and adjudicated case law, which distinguishes between the works-for-hire created by paid employees and the proprietary creations of unpaid volunteers. (The same is likely also true in Canada and the overseas jurisdictions in which the SCA operates, many of which additionally recognize inalienable “moral rights,” making the Society’s interpretation even more problematic.)

This is not just an academic question for me, because I operate the Traceable Heraldic Art website at heraldicart.org, where I publish armorial clip art and related material, much of which was created by Society heralds and scribes. Acting under the belief that the rights to those images were owned by their creators, I have received illustrations from nearly one hundred members of the Society who have agreed to share their art under Creative Commons or similar licenses, and I have made that work available to uncountable thousands of people on the web.

Although the precise boundaries of the SCA’s unwritten interpretation of copyright are unclear, some of that work was unquestionably originally created by officers as part of “routine Society operations” or “the responsibilities of the officer,” including art drawn by kingdom submissions heralds, kingdom roll-of-arms heralds, and kingdom education heralds whose positions specifically called for them to create that material.

I take copyright seriously, and have studiously avoided including modern illustrations in the Traceable Heraldic Art collection without permission from the copyright holder. If the copyright for officers’ work were to really be owned by the Society, the illustrators who created it would not have the authority to license it under a Creative Commons agreement, and I would need to either remove it from my website or negotiate with the Society for permission to share it.

However, I have decided that in the absence of either any cognizable legal justification or any written Society policy on this matter, for now I am going to proceed without taking either of these steps — instead, I will continue to distribute these images with the consent of their creators, as I believe they are the true holders of the copyright to their own work.

If the Society has a genuine belief that it holds a copyright interest in the work of its unpaid officers, I invite you to put that policy in writing, and to make it available to the membership rather than keeping it a secret, at which point I will reevaluate my next steps.

Alternatively, if you are willing to entertain the notion that this unwritten interpretation of copyright might no longer be legally viable, please know that I and others who have given this matter some thought would be glad to assist Society leadership in charting an approach that allows the SCA to continue to conduct its business with a minimum of disruption or additional paperwork.

If you have any questions about this issue or would like to discuss further steps, please do not hesitate to contact me.

In service to the dream,

— Mathghamhain Ua Ruadháin, Herald Extraordinary
— Publisher, Book of Traceable Heraldic Art

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From: Society Seneschal
To: Mathghamhain Ua Ruadháin
Cc: Society In-House Counsel, Society Publications Manager, Board Ombudsman for Publications, Laurel Sovereign of Arms, Board Ombudsman for Heralds
Date: June 21, 2023

The SCA very much appreciates both your work and your diligence to ensure legalities are followed. That said, the SCA doesn’t try to copyright heraldic depictions other than our few trademarked/servicemarked items. If there is any issue with your heraldic site the organization will contact you directly to resolve it. As long as you gain consent from the original artists, there should be no problem here.

In service,

Society Seneschal

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From: Mathghamhain Ua Ruadháin
To: Society Seneschal
Cc: Society In-House Counsel, Society Publications Manager, Board Ombudsman for Publications, Laurel Sovereign of Arms, Board Ombudsman for Heralds
Date: June 22, 2023

Hello, and thank you so much for your response.

It’s reassuring to know that the images produced by our heralds and scribes are not subject to the Society’s rumored claim to copyright over volunteer work.

Glad to know I can cross this off my list of things to worry about — much appreciated!

— Mathghamhain