When is it copyright-free?

It’s the kind of question that arrives in the email box of The Legal Genealogist on a regular basis.

This one, from reader Jerry Lumpkins, is typical: “As I create ( or publish ) a book on our town’s history using newspaper articles, HOW can I be sure this ‘re-print’ and my ‘use’ is ‘LEGAL’ ?”

Copyright sure gets people confused.

Fortunately, it’s usually pretty easy to straighten folks out, and this question is no exception.

Now… before anything else… let me remind the reader and everyone else: this is not legal advice. Anyone who wants or needs legal advice needs to consult an attorney licensed to practice in the jurisdiction where the person resides.

That being said, the law here is pretty clear and every genealogist can check it out using a key — and free — tool from the Cornell University Copyright Information Center. It’s a chart that every one of us should have bookmarked in our web browsers: Copyright Term and the Public Domain in the United States.1

What this chart tells us is when items legally published in the United States enter the public domain. Remember, now, that’s a legal status: “The public domain is not a place. 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.”2

For genealogical purposes — and for uses like Jerry wants — we really really want things to be in the public domain, because we can use them freely, any way we want, for any purpose (with some limits3), without needing permission from the creator of the work — the original author or photographer.

In essence, there are three basic ways a work gets into the public domain:

• It was once copyrighted but the copyright has expired.
• It was never copyrighted at all — usually because the creator of the work didn’t take some needed step to copyright it back when the law required specific things like notice or registration.
• It was specifically dedicated to the public domain by the creator.4

So… when it comes to newspapers, there are some variables set out in the chart but here are the key issues:

• Anything legally published in the United States before 1924 entered the public domain no later than 1 January 2019. This will advance by one year each January 1st: on 1 January 2020, it will be anything published before 1925; on 1 January 2021, it will be anything published before 1926.5 There aren’t any exceptions to this, so any newspaper published before cutoff date is fair game. Period.

• Anything published from 1924 through 1977 without a copyright notice is in the public domain. Most newspapers will have a copyright notice somewhere so be careful before concluding that a newspaper you’re looking at was published without a copyright notice.

• Anything published from 1924 through 1963 with a copyright notice may be in the public domain. It will depend on whether the copyright was renewed. Most copyrights didn’t get renewed — only about 11% of periodicals were renewed6 — but to check whether a specific newspaper copyright was renewed, you’re going to have to do some research. The Copyright Office has a circular on that — How to Investigate the Copyright Status of a Work7 — and there’s more guidance in the blog post “Checking for renewals.”8

Of course, there’s always one more thing to think about: just ask permission. Most newspaper publishers are happy to give permission for a project like this, and getting permission means you don’t have to worry about copyright at all — even if the specific newspaper article is copyright-protected.

And if all else fails — if the newspaper article is copyright-protected and you can’t get permission — remember that the facts set out in the article can’t themselves be copyrighted. Only the way they’re expressed can be copyrighted.9 So extracting just the facts (the town selectmen voted to raise taxes on 1 January 1970, for example) without copying the article, its wording or any associated photos doesn’t raise the same sorts of concerns.


Cite/link to this post: Judy G. Russell, “The history in the news,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 10 Oct 2019).

SOURCES

  1. Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell University Copyright Information Center (https://copyright.cornell.edu/ : accessed 10 Oct 2019).
  2. Definitions: Where is the public domain?,” U.S. Copyright Office (https://www.copyright.gov/ : accessed 10 Oct 2019).
  3. Just as one example, I really wouldn’t use a photo of a living person without that person’s permission, even a photo that’s out of copyright, on a pornography website. Just sayin’…
  4. A Creative Commons CC0 license is this type of dedication. Though this may technically be a license rather than true public domain, that’s a distinction without a difference. Anything that is licensed for free and totally unrestricted public use might as well be considered public domain.
  5. See Judy G. Russell, “Welcome to 1923!!,” The Legal Genealogist, posted 2 Jan 2019 (https://www.legalgenealogist.com/blog : accessed 10 Oct 2019).
  6. See Barbara A. Ringer, “Renewal of Copyright (June 1960),” in Copyright Law Revision: Studies Prepared for the (Senate Judiciary Committee), Studies 29-31, 86th Congress, 2d Session (Washington, D.C. : Government Printing Office, 1961), 220.
  7. See U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work, PDF version at pp. 1-2 (https://www.copyright.gov : accessed 10 Oct 2019).
  8. Checking for renewals,The Legal Genealogist, posted 28 Mar 2016.
  9. FAQs: What Does Copyright Protect?,” U.S. Copyright Office (https://www.copyright.gov/ : accessed 10 Oct 2019).
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