Copyright & the newspaper article

Next in an occasional series on copyright — the newspaper article

Reader Aija Rahman has a collection of newspaper articles she’s put together. She wants to compile them into book form for her family and has copyright questions:

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.

American newspapers

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.

Australian newspapers

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!!!


SOURCES

  1. Wikipedia (http://www.wikipedia.com), “John Barneson,” rev. 15 Nov 2010.
  2. 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).
  3. U.S. Copyright Office, “Definitions” (http://www.copyright.gov/help/faq/faq-definitions.html : accessed 5 Mar 2012), “entry for public domain” (emphasis added).
  4. 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).
  5. Circular 22: How to Investigate the Copyright Status of a Work, U.S. Copyright Office (http://www.copyright.gov : accessed 18 Mar 2012).
  6. U.S. Copyright Office, Library of Congress, Catalog of Copyright Entries (Washington, D.C. : Govt. Printing Office, 1906-1898
  7. 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).
  8. 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).
  9. Australian Copyright Council, “Duration of Copyright” (http://www.copyright.org.au : accessed 18 Mar 2012).
  10. 17 U.S.C. § 105.
  11. See Australian Government, Attorney-General’s Department, “Commonwealth copyright” (http://www.ema.gov.au/www/agd/agd.nsf : accessed 18 Mar 2012).
  12. See Request for permission to use State archives.
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44 Responses to Copyright & the newspaper article

  1. Pingback: Resources on Blog Copyright and Content Theft | GeneaBloggers

  2. Clare Turncliff Gunning says:

    What if you found a newspaper article in the historic newspapers at the library of congress but this article was also available from genealogybank and they’ve got their “we own it” on the article you print out from them. This is an article originally printed in an 1808 newspaper and then it was reprinted in newspapers all through the northeast within a few months. I went looking at the library of congress to make sure it was available free and not exclusively from genealogybank.com. It’s such an interesting article about my 3 greats grandfather’s demise that I wanted to include it in our genealogy group newsletter.

    • Judy G. Russell says:

      Clare, that’s a terms-of-service issue, not a copyright issue. I have that on my list of things to write about in the future.

  3. Taneya says:

    thank you for this very informative article! It will be a great guide for many. I did want to share though that not everything published before 1923 is free of copyright. For example, the New York Times still holds copyright on all of their content, regardless of when it was published. I have also experienced this with a small town newspaper I have been indexing – though, that paper did give me permission to post the material online. In general, I recommend that if a newspaper is still in print, one checks with the publication to be sure it is appropriate to reproduce.

    • Judy G. Russell says:

      No, there’s a difference between CLAIMING copyright and HOLDING copyright. If the item is out of copyright, it’s out of copyright, no matter what the publisher claims. I see that copyright notice on the NY Times articles pre-1923 as well. I don’t buy it.

  4. Celia Lewis says:

    Wow, another home-run, Judy! And thanks for the link to that pretty table of Copyright Term details as of Jan.1st/12. I appreciate being able to read/study and eventually wrap my head around all these copyright details. So many things to think about. Now I’m waiting breathlessly for the “fair use” article… Well, almost breathlessly. Cheers.

  5. Suzanne says:

    Judy,

    I have been working on a genealogy website for over a year now – it’s not up yet – and most of my content is pre 1923. I did not copy and paste anything – I retyped it for the website. My question is – pertaining to obits after 1923 – which I also retyped – I only used the facts and put them on a form-type document, listing name, age, place of death, etc. I DID list the newspaper in which I got the info from, so that if anyone wanted to get a hold of the original they would know where to get it. I was under the impression that facts could not be copyrighted. Is this correct? Thank you.

    • Judy G. Russell says:

      You are absolutely correct: facts can NOT be copyrighted. As long as you aren’t copying any of the creative aspects of an obit (“Mrs. Smith swooned when she got the news…” type of thing), and are just extracting plain facts into your own form, you should be just fine.

      • Suzanne says:

        Thank you – I have been hesitant to put my website out there without knowing for sure if I had infringed on someone’s copyright. You have no idea how much your answer means to me – hearing this from someone that knows what they are talking about! Thank you for your promptness and this website!

        • Judy G. Russell says:

          Glad to help, and just to give you a little more comfort, here’s a direct quote from the U.S. Copyright Office: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”

  6. Donna says:

    I am writing a small book about an an event in the life of a family. There were a few newspaper articles about the journey of this family. The event happened in 1960 ,the articles were written the same year. The name of the paper was cut off for the scrapbook. Trying to locate the papers the articles appeared in; mostly small town newspapers. Some might be out of business- trying to find this out. The journal of the mother was typed in the paper word for word. I am using the same journal with the permission from the mom, age 89 who is still alive. Since it is the mother’s journal. I would think that would not be considered copy right infringement as it is her journal. Is this correct? Her journals, in letter form were sent to the local hardware so friends and family to keep track of their trip. The local paper also printed them in the paper to keep the town informed. Also is there a website where I could plug in a passage of the article to see if it is copy written? Book for family use, but they think they might want to sell a few copies at vendor shows. So I want to do this correctly, legally and also give credit where credit is due. Any advise would be most welcome.

    • Judy G. Russell says:

      You should be fine with the journal. As for the newspaper articles, they may be out of copyright but probably not. There’s no place that does a copyright check for you, but you might be able to plug in search terms from the text to locate the newspaper if it’s digitized at Newspaperarchive.com or GenealogyBank.com. Both are subscription sites. Checking the clippings with the local genealogy librarian may help you identify the newspaper as well.

  7. Good article, thanks for the information. This may have answered a question I put to you in another article. I write a free blog, if I retype the info it is okay but if I screen print the whole thing then it is “bad”. I don’t get it. I thought I was doing them a favor by printing their stuff (screen print) unaltered with their name and info right there for the entire world to see. I guess the more I learn about the subject the less I know about it. “A little knowledge is a dangerous thing.” Oops; do I have to cite who said that?

    • Judy G. Russell says:

      if I retype the info it is okay but if I screen print the whole thing then it is “bad”. That’s not the test. The test is, how did you get the information you’re copying? If you got it from a copyrighted publication, and you’re copying it word for word (or even close to word for word), then you must pay attention to copyright. That means you either have permission to copy or your use is a fair use… or you’re at risk.

  8. Mplsfitz says:

    The newspapers copyright the entire edition as a collective work. A newspaper page, including layout, would be part of the collective work. Articles and photographs created by newspaper staff and all other media outlets (like AP) are copyrighted in addition to the collective work copyright.

    Some content published in newspapers since 1923 was and is created by authors not working for the newspaper or any media outlet. Examples for genealogists include: advertisements created by your family business especially sole proprietorships, classified advertisements written by a family member, obituaries or death notices written by a family member or a mortuary employee hired by your family, and letters to the editor. In these example, the content (e.g. words) belong to the creator/author.

    If the work was created before 1978 and if no there was no copyright application or renewal, then these items are likely already in the public domain. Cornell University has a helpful chart here: http://copyright.cornell.edu/resources/publicdomain.cfm

    • Judy G. Russell says:

      All accurate — previously set out in various blog posts, but nice to have it repeated. One caution: in many cases, newspapers require that someone submitting something for publication relinquish copyright to the paper. More so in recent years than earlier, but something that should be checked.

  9. BornInaZoo (Bonnie K.) says:

    Thank you so much for this information. In October 1978 an article was published about my Mom & family as an insert for a newspaper that went out of business. I found a copy of the article yesterday while cleaning my basement & am the only one in our family that still posses one. I want to make copies for my family. I looked for a copyright notice and there was none. I did find a local address & looked it up. It’s where my city’s newspaper is published. I’m going there today (if they’re open on President’s day) and see if I can make or get permission to make copies.

    Not that it gives me permission to copy the article, but I do love that I have all of the original photos taken by the author/photographer. She sent them to my mom. The out-takes are great. There’s over 50 photos & 8 were used in the article.

    • Judy G. Russell says:

      That photographer gets special marks for giving your Mom the outtakes, Bonnie. What a wonderful thing to have. Sure hope the newspaper gives you permission to copy for your family.

      • BornInaZoo (Bonnie K.) says:

        I went to the newspaper office this morning. They don’t hold the copyright & the paper that published the article never filed a copyright.

  10. Pingback: Copyright research workflow | NELA Newspapers Pilot Project

  11. Pingback: Copyright research | NELA Newspapers Pilot Project

  12. Charlie Howard says:

    When newspaper articles and/or personal letters were read into Court Testimony in 1964, can the entire Transcript of such proceedings, including the possibly-copyrighted material, be reproduced without obtaining the permission of each copyright holder?

    • Judy G. Russell says:

      GREAT question, Charlie, and still something of an open question right now until we see a written opinion of the judge throwing out a case in the U.S. District Court for the Southern District of New York called White v. West Publ. Corp., No. 12 Civ. 1340 (JSR) arguing that attorneys had copyright in things they wrote and filed with the court. The underlying issue here is much the same, though I suspect there would be more protection of items put into evidence by attorneys without the participation of the copyright holders than there is for items filed by the attorneys themselves. The Court granted summary judgment in favor of legal publishers months ago, but there’s no written opinion (and so no final judgment, and hence no appeal that can be taken) on the docket yet.

  13. Rod Kennedy says:

    I’m doing a narrative of a small rural village,pop.700 for most of these years, where I lived for the first 18years of my life. The narrative covers this time era: 1898 thru 1957. I’m drawing articles from the weekly newspaper thru these years. The newspaper is Enterprise (WI). For example, my first narrative was on the high school sports during this time period. Second, business narrative and third narrative is the public library and so forth. In the narrative process, I use articles written by the Enterprise newspaper, word for word. Generally, the writer is the editor(S),but not always. Please advise on the copywrite issue for using the exact articles. I’m reading your material.

    • Judy G. Russell says:

      Rod, there are a lot of variables here. You’re absolutely safe for anything published before 1923; it’s now public domain. For things published after 1923, the rules can be very complicated, so the safest way to proceed is to get permission from the newspaper.

    • Rod Kennedy says:

      thank you for your time. After reading some of your copyright articles, I have a better understanding and I plan to use some of your ideas. I did forget to mention that the newspaper, Enterprise, is no longer in existence.I do not know if the current weekly newspaper bought out the Enterprise. I plan to check with the current editor. Again, thank you. Happy New Year-2014

      • Judy G. Russell says:

        Ah yes. The orphan works problem. First step is to see if you can find out who bought the paper, if anyone. Otherwise, you have to go at this the long way, to see if the copyright was ever registered and if registered if it was renewed. Being “safe” here won’t be easy.

  14. Jeff Jahn says:

    Was wondering how copyrights work with subscription based sites that you subscribe too such as newspaper.com; genealogyBank.com; NewspaperArchive and such. If you subscribe to them and clip copies of articles and post on facebook or ancestry, would you be breaking the copyright. In other words what if any rights do you gain from subscribing to sites like this.

  15. Mark Schmidt says:

    A very interesting chain of discussion. Ok. Here’s my situation: I have written my autobiography for my grandkids and future generations and it will be published by a print on demand service.
    I want to use a series of about 50 different newspaper articles printed over the past 40 years that cover the the major themes of my personal story.
    The vast majority of the articles use my name directly.
    -One important article from 1970 is from the defunct Pittsburgh Press; since bought by the Post-Gazette. Do the the copyrights typically transfer to the new owner?
    -Does the fact that news articles contain substance of my own words, my own specific quotes, give me different status or permission to use the articles?
    -I have decided to try to make collages of headlines and partial articles both for effect and to keep from becoming tiresome….does that make any difference relative to copyright?
    Thanks,
    Mark

    • Judy G. Russell says:

      Copyrights are usually assets sold with the underlying company, yes. No, the fact that the articles are about you doesn’t change the copyright analysis. The use of only portions of the articles may make for a stronger fair use analysis than if you were using all of the articles.

  16. Brent Kloster says:

    Thank you for this helpful information. My question pertains to podcasting. I would like to start a podcast in which I read entire articles from newspapers printed during World War II. My intent is to get the flavor of the reporting from newspapers large and small all across the US during the war. Each episode would feature a different newspaper.

    Is the best way to be “safe” to research the copyright status of each individual paper? Also, if permission is required, is it granted verbally or in written form? Does the request have to be written (i.e. e-mail), or can it be done over the phone?

    Thanks,

    Brent Kloster

    • Judy G. Russell says:

      Brent, you’re right that doublechecking the copyright status of the individual newspapers is the safest way to go, but it could be quite time-consuming. You’ll probably find it faster and easier to just ask permission, and I would document each contact (even if you talk with someone by phone, asking for a confirming email is a good idea).

  17. Pratik Panchal says:

    Very informative. I have collected a large news cuttings from our local newspapers in Mumbai, India. I have prepared English language study material based on them for school going students. I wonder what copyright hurdles will I face when I put this material on my under-construction web-site.

    • Judy G. Russell says:

      You’re sure going to have to do your homework on the laws of India before you put them online.

  18. Lee says:

    In the 1960s/1970s our state library and archives undertook a major project to microfilm all of the newspapers and public records (deeds, etc.) in the state. I am using pre-1923 newspapers, that were microfilmed during that time. The reels indicate that the state filmed them and lists the date, but the reedls do not contain a copyright notice. These reels now exist at local libraries around the state and are used regularly for historical research. Does the state library and archives own a copyright on these microfilmed copies of the newspaper? Which date counts for copyright? The date the paper was published (pre-1923) or the date the state microfilmed it (1960/70)?

  19. Gersowitz Libo & Korek P.C says:

    Copyright law evolved a great deal during the last quarter of the 20th century, but civil litigation continues in the 21st because the U.S. Code Title 17 allows much subjectivity about what constitutes an outsider’s “fair use” of a newspaper’s work.

  20. Brian Chatters says:

    I am writing up a family history and I am considering publishing it. I have used transcripts of numerous newspaper articles to illustrate the book but they are all pre 1923 so I guess I am okay regarding copyright. However, there are a couple of issues that give me concern:
    What is the copyright situation regarding use of photos that appear in the papers? Some of the pictures that I would like to use have also appeared for sale on the internet (mainly eBay) although the photographer is unknown.
    Some of the pay sites on the internet allow free access (without registration – therefore, no contract) to transcripts of some papers. What is the legal position regarding copying the transcripts?

    • Judy G. Russell says:

      (a) Photographs are covered by the same copyright rules as text: anything published in the United States before 1923 is now public domain. (b) Whether you can make use of information from pay sites depends on the terms of use of the particular sites. Those terms of use are effectively a contract between the site and you, and you are bound by whatever you agreed to by subscribing or using each site.

  21. Avril says:

    Hello,
    I am writing a small weekly article for a local newspaper to help homeless pets in need with a feature pet. I write the article (250 words) and submit a photo, sometimes mine, but other times they are from pro photos or other from people. Another person then edits it and submits it who oversee’s this weekly feature at the paper. I am not paid, which I am fine with, but they have not given credit to either me or the photographers, which I think is unfair and not particularly ethical. Is this legal for them to do? I am happy to volunteer my efforts but it would be nice to be acknowledged, especially so I could add it to my resume too. TY

    • Judy G. Russell says:

      Forgive me for asking a basic question, but have you told them you expect your work and the photographers to be credited? Sometimes the local papers just don’t think to do that.

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