Next in an occasional series on copyright — the news reprintOne hundred and one years ago today, the pages of the New York Times were filled with the story of the terrible deaths of dozens and dozens of workers — most of them young immigrant women — in a fire at 23 Washington Place in New York City affecting employees of the Triangle Shirt Waist Factory. The fire broke out on on the eighth floor of the 10-story building, and rapidly trapped the workers away from access to the stairs or the one fire escape.1 By the time the final victim was counted, it turned out that some 146 workers had died.2
Today, you can find those articles available, for free, from the New York Times on the web. And every last one of them has the date of original publication — March 26, 1911 — and the notation that the document is “Copyright © The New York Times.”
No, it’s not. It used to be, sure, but it isn’t any longer, and there’s no good legal justification for the Times putting a copyright notice on these articles.
Sorry, but that dog don’t hunt.3
The simple fact is that, under American copyright law, nothing, and I mean nothing, that was published in the United States before 1923 still has copyright protection. No book, no photograph, and no newspaper. Nothing.4
And the law is quite clear that merely reproducing the original document in another format doesn’t have the necessary creative spark required to grant a new copyright in the new publication, not to mention the fact that the new copyright would only cover new material — not material where the copyright has already expired.5 So the mere fact that individual articles are now being reproduced by the Times as individual PDF files and put online doesn’t restore copyright protection.
The law is so clear on these pre-1923 articles being out of copyright that — even putting on my best “what if I were the New York Times” hat — I couldn’t come up with a single solitary theory that copyright could still apply. I looked all over the New York Times’ website, and all I found there was the same kind of broad claim: “all use of New York Times content (text, photographs, graphics, etc.) requires the permission of The New York Times.”6
So I emailed the Times and asked one simple question: “Since US copyright law clearly places all items published before 1923 in the public domain, what is the basis of the Times’ claim that the articles are currently protected by a Times copyright?”7
The answer was, in part, just what I expected: “Please be advised that article text published prior to January 1, 1923 is recognized as “Public Domain” by The New York Times legal dept. … Permission and licensing are not necessary to use this material.”8
So why is the copyright notice on these articles? A particularly apt question, since putting a copyright notice on materials that are absolutely unequivocally out of copyright can be a crime, though it requires a fraudulent intent — something that’s most likely lacking here and awfully hard to prove — and the penalty is only a fine9 — not much to deter a major publisher.
I’m guessing that it’s there mostly because of the waffle in the Times’ representative’s email reply: “Please note this does not extend to the use of the publication’s logo, layout, or the content in any commercial/advertising/promotional forms.”10
Well, okay, for the logo, I buy that there are potential problems with commercial or advertising use, but that’s because of trademark law, not copyright.11 Still, I’d be willing to bet that I could write and commercially publish a book about the Triangle Shirt Waist fire and use an image of the entire front page of the March 26, 1911, New York Times as my cover art without a trademark issue.12
As for the layout and content, nope, that dog don’t hunt either. The fact is, everything about those pre-1923 works — the layout, the content, everything — has passed into the public domain. By definition, “Works in the public domain may be used freely without the permission of the former copyright owner.”13
I hate to clue in The Times, but “freely” means just that — and nobody, not even the great Grey Lady,14 can rewrite the language, or the law, to suit its wishes.
- New York Times, “141 Men and Girls Die in Waist Factory Fire…,” 26 Mar 1911, p. 1, col. 1. ↩
- Wikipedia (http://www.wikipedia.com), “Triangle Shirtwaist Factory fire,” rev. 22 Mar 2012. ↩
- Urban Dictionary, “that dog don’t hunt” (http://www.urbandictionary.com : accessed 25 Mar 2012). ↩
- See U.S. Copyright Office, Extension of Copyright Terms, circular 15T (http://www.copyright.gov : accessed 25 Mar 2012), at 3 (“Works published before January 1, 1923, have fallen into the public domain”). See also U.S. Copyright Office, How to Investigate the Copyright Status of a Work, circular 22 (http://www.copyright.gov : accessed 25 Mar 2012), at 7 (“the U. S. copyright in any work published or copyrighted prior to January 1, 1923, has expired by operation of law, and the work has permanently fallen into the public domain in the United States”). ↩
- See 17 U.S.C. § 103(b). And see U.S. Copyright Office, Copyright Registration for Derivative Works, circular 14 (http://www.copyright.gov : accessed 25 Mar 2012), at 2 (“A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, can be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public-domain material”). ↩
- “Help > Permissions and Policies > Obtaining and Using Times Content,” NYTimes.com (http://www.nytimes.com : accessed 25 Mar 2012). ↩
- Judy G. Russell, New Jersey, to JLIB_HTML_CLOAKING , e-mail, 19 Mar 2012, “Basis for pre-1923 copyright claims?.” ↩
- Evelise Rosario, (e-address for private use), to Judy G. Russell, e-mail, 20 Mar 2012, “RE: Basis for pre-1923 copyright claims?.” ↩
- 17 U.S.C. § 506(c). ↩
- Rosario to Russell, e-mail, 20 Mar 2012. ↩
- See generally 15 U.S.C. §§ 1051 et seq. and especially § 1125(c). ↩
- There’s a fair use doctrine in trademark law too, not that this use would ever need to be defended. See 15 U.S.C. § 1115(b)(4). ↩
- U.S. Copyright Office, “Definitions” (http://www.copyright.gov/help/faq/faq-definitions.html : accessed 25 Mar 2012), entry for “public domain” (emphasis added). ↩
- Wikipedia (http://www.wikipedia.com), “The New York Times,” rev. 23 Mar 2012. ↩