A society’s transcriptions raise questions
Reader Steve Dahlstrom was surprised when he ran across a website run by a local historical society that had transcriptions of a large number of obituaries from a local newspaper. The dates on the obituaries ranged, but many of them had been published well into the 1950s and so, he thought, would be covered by copyright. “My understanding of copyright would not allow websites … to transcribe and republish these obituaries without permission from the newspaper, when the original was published after 1922,” he says. And, if the newspaper did give permission, “should the webpage note this fact?”
Ah, yes. That oh-so-common, oh-so-murky question of whether newspaper obituaries are covered by copyright and when, where and how they can be used. Just about every question connected with obituaries and copyright law has to be answered with that most wonderful of The Legal Genealogist‘s answers. You know the one I mean. The one that has us all tearing our hair out.
Oh, the “should the website say it has permission” part is easy. Sure it should. It always makes things easier. But the one Steve came across didn’t say whether it has permission. So now what?
Let’s start by going over some copyright basics.
First, anything that was published in the United States before 1923 is now in the public domain.1 That means there is no copyright restriction on it of any kind and you are free to use it in any way you’d like.2
So as far as any obituary published before 1923, it’s fair game and nobody has to be concerned about it at all.
Second, if something was published between 1923 and 1963 with a copyright notice — and most newspapers did include some kind of copyright statement somewhere in their pages — that copyright ended 28 years after publication unless the newspaper renewed the copyright by filing a registration with the U.S. Copyright Office and paying an additional fee.3 It may not be the easiest thing in the world to check to see whether a newspaper renewed its copyright — the records exist in an enormous card catalog in the U.S. Copyright Office at the Library of Congress — but my bet is that the vast majority of American newspapers didn’t bother renewing their copyrights on their archival editions.4
So assuming that the newspaper whose obituaries were transcribed by this local history group didn’t bother renewing its copyrights day by day after their initial term, any obituary published between 1923 and 1963 became public domain — fair game — 28 years later. An obituary published in 1950, for example, went into the public domain in 1978; an obituary published in 1960 went into the public domain in 1988.
Third, the fact that the obituary ran in the pages of a newspaper that was copyrighted doesn’t mean the obituary itself was covered by copyright — or, at least, not by the newspaper copyright. Remember that facts by themselves can’t be copyrighted.5 There has to be some spark of creativity for copyright protection.
So a newspaper that used a fill-in-the-blanks form and printed nothing but facts might very well not be able to claim copyright in the obituary at all.
Fourth, just because the newspaper published the obituary doesn’t mean the newspaper owns the copyright. Here again remember that whoever actually contributed that creative spark, that original expression, is the author and it’s the author who owns the copyright unless the author signs a written agreement giving the copyright to somebody else.6
The obituary used here as an illustration happens to be my own grandmother’s obituary. It was published in 1995. But the newspaper that published it doesn’t own the copyright. It didn’t write one word of that obit. It was written by the family. I can even tell you specifically who in the family wrote the sentence about where my grandmother was born (because there has only ever been one cousin who kept insisting that my grandmother was born in Sugarland, even though my grandmother said she was born in Eagle Lake). And those of us who did contribute to writing it never signed an agreement to give the copyright to the newspaper.
This is a pretty typical example. Most obituaries aren’t written by newspaper staff — they’re written by the family or by the funeral home with information from the family. There are exceptions, of course — and you should be especially wary of using anything that ran with a by-line, that little section under the headline that identifies the writer.
So maybe the local historical society would need to ask us for permission to transcribe the obit and put it on a website. But it wouldn’t need to ask the newspaper.
And if those aren’t enough “maybes” for you, let’s throw in one more big one. It’s called the fair use doctrine, and it’s set out in federal law at 17 U.S.C. § 107:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means …, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.7
Even if something is copyrighted, you can still use some part of it if your use qualifies as a fair use. How does this use stack up against the statutory test?
• Transcribing old newspaper obits for a historical society to give away sure looks like a nonprofit educational purpose.
• The obit itself is mostly factual, so the nature of the work is given less protection.
• All of the obits ever published by one paper probably aren’t very much of the contents of the newspaper as a whole.
• And unless the newspaper is selling transcriptions, there’s not much effect on the market for the obit, is there?
So the transcription could very well be a fair use even if the newspaper does have a valid copyright. (By the way, I suspect most uses of single non-bylined obits of your own family members in things like blog posts would be considered fair use as well. Just sayin’ …)
And so, after all that, the answer to the question of whether the local historical society was violating the newspaper’s copyright is — brace yourself, you know it’s coming — it depends.
And we haven’t even considered whether the particular newspaper involved would think that having its name attached to every one of those transcriptions was a form of free advertising for its current editions … or that suing a local historical society over 50-year-old obituaries would be bad for business…
- See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 11 Sep 2012). ↩
- See generally “Where is the public domain?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 11 Sep 2012). ↩
- U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at p. 2 (http://www.copyright.gov : accessed 11 Sep 2012). ↩
- Do NOT take my word for it if you decide you’re going to go off and publish huge numbers of copies of pre-1963 newspapers. This isn’t legal advice and I won’t defend you. See
Judy G. Russell, “Rules of my road,” The Legal Genealogist, posted 18 Feb 2012 (https://www.legalgenealogist.com/blog : accessed 11 Sep 2012). Make sure you check that card catalog! ↩
- See “What Does Copyright Protect?,” Frequently Asked Questions, U.S. Copyright Office (http://www.copyright.gov : accessed 11 Sep 2012) (“Copyright does not protect facts, … although it may protect the way these things are expressed”). ↩
- See “Who is an author?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 11 Sep 2012). ↩
- “Limitations on exclusive rights: Fair use,” 17 U.S.C. § 107. ↩