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
- 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). ↩
- “Definitions: Where is the public domain?,” U.S. Copyright Office (https://www.copyright.gov/ : accessed 10 Oct 2019). ↩
- 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’… ↩
- 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. ↩
- See Judy G. Russell, “Welcome to 1923!!,” The Legal Genealogist, posted 2 Jan 2019 (https://www.legalgenealogist.com/blog : accessed 10 Oct 2019). ↩
- 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. ↩
- 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). ↩
- “Checking for renewals,” The Legal Genealogist, posted 28 Mar 2016. ↩
- “FAQs: What Does Copyright Protect?,” U.S. Copyright Office (https://www.copyright.gov/ : accessed 10 Oct 2019). ↩
My question has been answered before, I think, but I didn’t need to know then. What do you do when a book is out of print and it was published so long ago that you don’t know who to ask for permission? Or if you need permission? So often I’d like to buy a book or ask the author a question but everyone has died.
Similar question. What if the newspaper is no longer in business. Copyright-free because there is no entity benefiting from the copyright, if there ever was one?
My sincere apologies Judy. I have posted some of your articles on my facebook page, never once considering your rights or the copyright infringement even. I may be a cousin but if I do that in the future, I will be sure to ask your permission!
No need to apologize or get permission, Stan! Every post I make is public, and there’s a Share button on every post so you can link to it on your Facebook page either from the blog itself or from my Facebook page! The only time you’d need permission is if you were republishing the entire piece, word for word.
Another question for you. Although UK and not your realm of expertise I was pointed to Wikipedia and there article of Crown Copyright. It covers many countries but under UK it says However, some documents have Crown copyright waived by the government, subject to certain conditions. This was introduced in a white paper in 2000 in order to improve access to government publications. This listed 10 classes of documents for which “formal and specific licensing will not be necessary”.[35]
Primary and secondary legislation
Explanatory Notes to legislation
Government press notices
Government forms
Government consultative documents
Government documents featured on official departmental Web sites
Headline statistics
Published papers of a scientific, technical or medical nature
Text of ministerial speeches and articles
Unpublished public records
Does that mean that posting copies of UK Birth, death and marriage certificates is OK? Under a caution about offences relating to falsifying or altering and possession of such, they have Crown Copyright marked at the end. https://en.wikipedia.org/wiki/Crown_copyright
Thanks for your clarification on todays US Copyright. It is still complicated but much clearer than when I first started to teach myself about Copyright law back in 2003 (particularly Canadian.) Which brings me to:
Perhaps it might be worth a note that most countries (in the Bern convention or not) have their own Copyright laws. A part of the Bern Convention is that all signatories agree to honor the laws of that Country.
It is also worth trying to find out what is considered to be the Governing Law for the particular work. In Canada, for instance, (NOT a quote) a work by a non-Canadian, written & first published in Canada, with a “Canadian” subject, has an automatic Canadian Copyright.
NB: All publications in Canada are given Copyrights automatically, no need add specific wording, or anything unless it is say it is to say it is Copyright free – like most Canadian Government publications.
Thank you for this article, Judy. Here is a follow-up comment. Sites like Newspaper.com, for example, publish images of newspapers that may be out of copyright. From Ancestry’s terms of use for example (although I’m not sure what constitutes a “small portion”).
“Public Domain Content: Some Ancestry Content may be in the public domain, and yet also subject to restrictions on reuse. We refer to Ancestry Content in the public domain as ‘Public Domain Content.’ You are free to use a small portion of individual photos and documents that are Public Domain Content, but you must obtain our written permission to use more than a small portion of these collections.”
Other sites, of course, would have their own terms and conditions, but I suspect that regarding items in the public domain, it would be similar.
What if you find the newspaper article about your ancestor in a book where someone has abstracted articles and published them in a book. Also, what about information found in a book where someone has abstracted Wills or Court Records, etc. Since the latter is public domain information, could the author copyright their book, thus the information?
Facts can’t be copyrighted. You can extract facts from any source without concern over copyright. The issue is expression of facts — the words used to express those facts are what’s protected. So you can use the fact that John married Mary on 1 January 1795 because that’s simply a fact. You can’t use the sentence “John’s marriage to Mary was the highlight of the social season” without permission.
I just ask my daughter, formerly a copyright specialist at the Library of Congress… LOL. True… but all kidding aside, this is good info. The part about “asking permission” may be the best advice. I’m publishing a detailed family history, and I’ve only been turned down 2-3 times when I’ve asked permission, but sometimes one has to go “up the ladder” to a manager for a second opinion. Always ask politely, say thank-you and offer to prominently credit them as the source.
Great article on copyright laws for newspapers! I was wondering, if we call a particular newspaper to get permission to use an article for genealogy purposes only, would you happen to know what department or person (editor, etc.) we should contact? Also, if granted, what documentation we should accompany with the article to show we have received permission to use it.
Thanks, Scott Hager
The Legal Department will be the usual place, but going right to the executive editor or other lead person on the editorial side is a good start. In the article all that’s needed is “published with permission” — in your files you want to keep a copy of whatever written permission you receive.
Thanks, Judy
What about online databases that publish out-of-print newspapers that are far enough back in time to be out of copyright? Does the database owner’s copyright notice (as publisher of the digital content) trump public domain?
No, but copyright is not the only issue with respect to using material found on the web. The website’s terms of use can also serve to restrict our ability to share / reuse materials. See the post “Contract, not copyright.”