Next in an occasional series on copyright — the newspaper article
I’m researching my son-in-law’s great-great grandfather, Captain John Barneson,1 who was quite famous in the early 1900s. I have found over 800 newspaper articles about him and would like to compile the articles for my grandchildren and any other relatives who are interested. Can I legally copy the articles into a book form, such as through lulu.com ? Are there copyright issues with reprinting the actual newspaper articles? The time span is 1890 to about 1941. … I do have other articles regarding Captain Barneson’s descendants, and those are all from the 1941 to 2011 time period. I would like to include some of them in anything I publish as well, so would appreciate knowing the copyright implications for that time period. There are also copies of ships logs from 1864 to 1900 from Australian sources (mariners.records.nsw.gov.au) and Australian newspapers of the period. Any idea about copyright issues from Australia?
Before we tackle these questions, I need to do my disclaimer bit again. Always remember that I’m commenting generally on the law here and not giving legal advice, and you may want to consult your own attorney, yadda yadda.
Now… before I begin… if you haven’t made his acquaintance before, I want to introduce you to Peter B. Hirtle. He’s an archivist and digital information expert at Cornell University. And he’s put a ton of information about all the possible time frames for materials either being under copyright or passing into the public domain together in chart form that you can find here.2 Great resource!!
The following explains in (I hope) plain English the time frames graphically shown on Hirtle’s wonderful chart for Aija’s newspaper article collection.
Fair game: in the public domain
There are undoubtedly bunches of these articles that are totally fair game because they’re already in the public domain. By definition, according to the U.S. Copyright Office, “A work of authorship is in the ’public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.”3
The articles you can use without worrying include:
• Articles published before 1923. This is the easy case. Any news article published in the United States before 1923 is in the public domain and you can reprint or republish it in any form you’d like without any copyright concerns at all.
• Articles published between 1923 and 1977 without a copyright notice. For this time frame, if there wasn’t a copyright notice in the newspaper, it’s in the public domain. But you need to make sure there really wasn’t a notice. That means looking carefully at copies of the entire newspaper for at least a few dates at regular intervals during the period from which you want to use articles to see whether there is a copyright notice anywhere in the newspaper.
Caution: check before using
• Articles published from 1923 through 1963 with a copyright notice but where the copyright was not renewed. An original copyright during this time frame lasted for 28 years. Longer protection — up to 67 more years — was available if the copyright was renewed by filing a renewal in the U.S. Copyright Office. So if there’s no renewal, then all of these articles are fair game — copyright protection would have expired at the latest in 1991. But before you can be sure you can use these safely, you have to be sure the copyright wasn’t renewed. For help on doing that, see the How to check copyright status section below.
• Articles published between 1978 and 1 March 1989 without a copyright notice and not registered within five years of publication. These are fair game but only if both of these requirements are met. Even if there wasn’t a copyright notice, the newspaper might still have been registered with the copyright office within five years. Because of this five-year option, while it’s possible that these articles were fair game when published, it’s also possible that they’ll be copyright-protected well into the future. So before you can be sure you can use these safely, you have to be sure the copyright wasn’t registered in that five-year window. For help on doing that, see the How to check copyright status section below.
Only use with permission unless fair use
If an article does have copyright protection, then there are really only two ways that the law allows you to use it. The first is with the permission of the copyright owner. The second is if your use falls into the category of permitted uses called “fair use.”4 We’ll get into fair use at some point in this occasional series on copyright, but relying on the fair use doctrine is always a crap shoot.
Sure, you can do a risk-benefit analysis and decide that the publisher of a newspaper isn’t going to come after you for using a half-dozen articles from the 1980s. Some people firmly believe in the old saying that “it’s easier to get forgiveness than permission.” If you go that route, you’re on your own. Me, I think getting permission, especially for a small non-commercial family publication, is easier, and there’s no question that it’s safer by far.
Here are the key time periods where you need permission unless you’re confident that your use will be considered a fair use:
• Articles published 1923 through 1963, with notice and with copyright renewal. For these, the total term for copyright protection — due to a number of amendments in the copyright law — is 95 years from the date of publication. An article published on 1 January 1924 in a newspaper published with a copyright notice and where the copyright was renewed would still be covered by copyright protection until 2019.
• Articles published 1978 to 1 March 1989, without notice but with registration. If a newspaper didn’t put a copyright notice in the paper but registered for copyright protection within five years, it still has copyright protection. Most articles published in newspapers were written as works for hire (meaning written by an employee of the newspaper). The copyright term for these published articles is 95 years from publication. We’re talking many many years before any of these are public domain — 2073 at the earliest.
• Articles published 1 March 1989 to present. These are all covered by copyright for 95 years after publication. Again, we’re talking many years before these are public domain — and some won’t go into the public domain until the 22nd century!
How to check copyright status
As noted above, there are a few categories where you need to check something beyond just the copy of the newspaper you’re working from to be sure whether it’s safe to use. With some, you need to find out if the copyright was registered; with others you need to find out if it was renewed.
So how do you find out what a newspaper’s copyright status is? There’s a circular available from the U.S. Copyright Office that explains it, called “How to Investigate the Copyright Status of a Work.”5 The process is tedious, but it’s not hard. First off, check any available online databases. There’s a wonderful collection of sources for these databases here at the University of Pennsylvania Library’s Online Books Page. I can’t recommend it — and the UPenn site — enough.
If you can’t find what you need online, then you’ll have to find a library that has the Copyright Office’s Catalog of Copyright Entries6 for the years you want to check, but entering “Catalog of Copyright Entries” at a search term at Worldcat.org turns up a lot of options. And there’s help available for this kind of search online at the UPenn site as well.7
Frankly, given the amount of work here with this many articles, I’d probably opt for taking an easier way: in your shoes, I’d write to the current publishers of the newspapers from which you collected the articles where you’re not sure. I’d explain exactly what I’m doing, the number of articles (broken down by year and month) that I wanted to include and ask (a) if they’re still under copyright protection and, if so, (b) whether I could have permission to include them in this privately-published collection for my family. That covers your bases either way.
Not surprisingly, copyright law in Australia is similar to United States law — there’s a treaty on free trade between the two countries that affected copyright protections.8 But the law is only similar, not identical. Under Australian law, as explained by the Australian Copyright Council (a non-governmental group that advises writers, photographers and others), any newspaper published before 1 January 1955 is out of copyright, since the copyright protection in effect at that time ran only for 50 years from the date of publication. A new law in effect in 2005 because of the treaty extends the protection to 70 years but that didn’t affect publication where the copyright had already expired.9
So for any article before 1955, it’s public domain. For anything after that, ask permission.
Australian government records
Here’s the big difference between the United States and Australia. In the United States, materials produced by the government can’t be copyrighted.10 In Australia, they can be and are copyright-protected.11 The specific ship manifests you’re dealing with are old records, but it isn’t clear under Australian law that the digital copies wouldn’t be considered copyright-protected. More importantly, the agency that now holds the records — the State Records Authority of New South Wales — wants you to ask for permission for anything beyond personal research or study, and says so on its website.12 Looks like it’s easy to get permission and free for non-commercial purposes, so that should be the least of your worries.
GOOD LUCK WITH YOUR PROJECT!!!
- Wikipedia (http://www.wikipedia.com), “John Barneson,” rev. 15 Nov 2010. ↩
- Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” note 8, Cornell Copyright Information Center (http://www.copyright.cornell.edu/ : accessed 18 Mar 2012). ↩
- U.S. Copyright Office, “Definitions” (http://www.copyright.gov/help/faq/faq-definitions.html : accessed 5 Mar 2012), “entry for public domain” (emphasis added). ↩
- See generally 17 U.S.C. § 107. And see U.S. Copyright Office, “Fair Use” (http://www.copyright.gov/fls/fl102.html : accessed 18 Mar 2012). ↩
- Circular 22: How to Investigate the Copyright Status of a Work, U.S. Copyright Office (http://www.copyright.gov : accessed 18 Mar 2012). ↩
- U.S. Copyright Office, Library of Congress, Catalog of Copyright Entries (Washington, D.C. : Govt. Printing Office, 1906-1898 ↩
- See e.g. “How Can I Tell Whether a Copyright Was Renewed?,” The Online Books Page, University of Pennsylvania Libraries (http://onlinebooks.library.upenn.edu/renewals.html : accessed 18 Mar 2012). ↩
- See Australian Government, Attorney-General’s Department, “Australia-United States Free Trade Agreement – changes to Australian copyright law – March 2005” (http://www.ema.gov.au/www/agd/agd.nsf : accessed 18 Mar 2012). ↩
- Australian Copyright Council, “Duration of Copyright” (http://www.copyright.org.au : accessed 18 Mar 2012). ↩
- 17 U.S.C. § 105. ↩
- See Australian Government, Attorney-General’s Department, “Commonwealth copyright” (http://www.ema.gov.au/www/agd/agd.nsf : accessed 18 Mar 2012). ↩
- See Request for permission to use State archives. ↩