The copyright question that no one wanted: the rights of immigrant minors in their drawings in connection with their detention along the U.S./Mexico border

Kat readers are likely aware of the dispute that has arisen in the U.S. over the detention of immigrant children, separated from their parents at the U.S./ Mexico border, in facilities often lacking basic necessities, such as soap, a toothbrush and toothpaste. On the one hand, authorities point out that the facilities were originally intended to house immigrants in transit for a few hours and were not designed for its current purpose. On the other hand, critics question the commitment of the authorities to provide such essentials and, more generally,to refit the facility as needed.

IPKat is not a political blog, but it cannot avoid the impact of politics and human rights in reporting on IP issues. The recent controversy regarding the treatment of immigrant children at these detention centers is a case in point.

It turns out that after their detention, some of the children found their way to the Catholic Charities Humanitarian Respite Center in McAllen, Texas and were asked to make drawings of their experience in detention. As reported (CNN, here and Hyperallergic, here), three of these drawings, one made by a 10-year old and another by an 11-year old, both from Guatemala, and the third, by a 10-year old whose origin has not been determined (as of July 4th), all found their way to Dr. Sara Goza of the American Academy of Pediatrics. The drawings can be viewed as suggesting cages or prisons.

Enter the Smithsonian Institute of Natural History in Washington, D.C. As reported by The New York Times, a museum curator has made an initial inquiry about the drawings as “part of an exploratory process.” The museum houses more than 1.8 million objects, a portion of which have been collected to “explore the infinite richness and complexity of American history.” Examples of such include President Abraham Lincoln’s top hat and musician Dizzy Gillespie’s trumpet.

As well, the museum has collected objects connected to the U.S.-Mexico border, such as a piece of old border fence and personal hygiene items, such as a toothbrush, razor and comb. Presumably, the drawings will find their way to the museum, to join other such objects connected to the events along the U.S.-Mexico border.

Section 106 (5) of the U.S. Copyright Act provides that—

in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;

Section 101 defines “publicly” as follows—

To perform or display a work “publicly” means—(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The FAQ section of the on-line site of the United States Copyright Office states as follows-

Minors may claim copyright, and the Copyright Office issues registrations to minors, but state laws may regulate the business dealings involving copyrights owned by minors. For information on relevant state laws, consult an attorney.

And so, how does the museum handle the copyright aspects of these pictures, should it wish to display the drawings and/or to reproduce them in a catalogue? Moreover, how does a relief agency, such as the Catholic Charities Humanitarian Respite Center, handle the copyright aspects should it collect a substantial number of such drawings and wish to publish them as a book?

Presumably, the agency, such as the Catholic Charities Humanitarian Respite Center, will keep a listing (to the best of its ability) of the relevant information about each young artist. If so, and if his or her parents can be located (whether in the U.S. or elsewhere), will their consent be required for any of these contemplated uses of the drawings? If the parents cannot be located, will some other form of consent be required?

If commercial use will be made of the drawings, what state law will apply to the commercial arrangements? Are there copyright defenses such as fair use or an implied license, or some other public interest which might supersede, in whole or in part, or otherwise impact on the application of copyright law (and the law of the relevant state, if appropriate)?

Better that the underlying tragedy of these children had never taken place and better that the drawings were never made. But circumstances have conspired otherwise. And so, from the copyright perspective, any thoughts from Kat readers?

Photos from the American Academy of Pediatrics

By Neil Wilkof