Everything we learned in library school about copyright has boiled down into a lump of mush in my head, and that lump of mush doesn't like to be bothered. When I try to touch it, it just yells at me: "copyright is complicated! this is the real world, not some theoretical discussion! ask an expert! don't get us sued!"
So, here is what I came up against the other day.
A fairly famous vegetarian restaurant that we all know and love donated its archive to our library. It's great stuff -- menus, photos, artwork, correspondence, a handbook of policies -- and I got to do my favorite part of my job, going through it and pulling out fun little vignettes and stories to try to figure out what would get the media interested in covering the donation and the history of the restaurant.
To tell the story, I'd want to use both direct quotes and images from the collection. Some of the stuff is private and has never been published; some of it was "published" in the sense that it was distributed and made accessible but not in an official way by a publishing company (like a handbook of policies or flyers that were hung up around town); some of it is sort of published in an official way (like drafts of original artwork for a t-shirt design); some of it is definitely published and is still certainly in copyright (like actual pages from cookbooks).
What to do, here? Part of the question is whether we have permission from the donor. The gift policy, which I've heard about but not read myself, apparently does state that we can do what we want with donated materials, but it seems strange not to at least ask (tell?) the donor that we're planning to release things to the public.
Even if we do have explicit or tacit permission from the donor, though... can things that were never officially published be in copyright? What if it's an early version of something that was eventually published in slightly different form? What about personal (non-embarrassing, but still) images of people who are still around and might very well see them, if the publicity thing is successful?
The lump of mush is happy to know that these questions have been submitted to our copyright expert for official guidance and it will not be held responsible, but I think it's interesting/sad/weird/bad that this stuff is so complicated. Not me, or my very smart and experienced supervisor, or the curator of the collection, or the university archivist actually feels confident enough to answer them. I will report back when the expert weighs in.