… and a great reader question
It makes for a lovely start to The Legal Genealogist‘s day when a reader’s copyright question focuses on one issue: “What are my responsibilities?”
In this case, it’s an easy question to answer… and there’s an easy reference source that I can point to.
Reader Karen Olynger’s question is one so many of us have:
I have in my possession original letters written in pencil to my great grandfather. 13 letters and Christmas cards were written from 1905 to 1933 by his 1/2 sister. I always wanted to transcribe them before they faded or the paper crumbled away. Of course, everyone is gone but I wondered if there is any copyright problem if I send the transcribed letters to my family with photos of the sister from the late 1890s.
She adds that she also has a family history this half-sister wrote in 1933 that she’d like to include, and intends to make the material available only for her family members and not publish it online.
So, she wonders, “What are my responsibilities?”
What a great question…
And I’m so pleased to be able to tell Karen that she can go right ahead and transcribe and copy and circulate those letters and that history without the slightest concern for any copyright implications.
And I can do that because she provided one more key piece of information– that “The author of the letters passed away in 1936” — and because of what that means if you look at this chart (click on the image to go to the full chart):
This chart — “Copyright Term and the Public Domain in the United States”1 — is the brainchild of Peter Hirtle of Cornell University, published every year as part of the Cornell University Library’s Copyright Information Center. It tells us when something transitions in the United States from being copyright-protected to being in the public domain.
Now, once again, the public domain isn’t a physical location; it’s a legal status — “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
So when something like a letter or a family history enters the public domain, we can use it freely, any way we want, for any purpose (with some limits3), without needing permission from the creator of the work.
Got that? Good.
Now go back to the chart.
The materials Karen’s relative wrote have never been published. So we want to look at the section right at the top of the chart for Never Published, Never Registered Works. That’s where we can see — quickly and easily — that the copyright for unpublished materials lasts for the life of the author plus 70 years.4
And then do the math: the author here died in 1936. Add 70 years to that, and copyright protection ended for anything this woman wrote as of the end of the year 2006.
In other words, these are totally public domain materials.
So what are Karen’s responsibilities?
To tell her family’s stories… kindly, lovingly, completely, truthfully.
And, in this case, without worrying about copyright.
Cite/link to this post: Judy G. Russell, “More on copyright and old letters,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 5 May 2020).
SOURCES
- Peter Hirtle, “Copyright Term and the Public Domain in the United States,” Copyright Information Center, Cornell University Library (https://copyright.cornell.edu/ : accessed 5 May 2020). ↩
- “Definitions: Where is the public domain?,” U.S. Copyright Office (https://www.copyright.gov/ : accessed 5 May 2020). ↩
- 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’… ↩
- You can double check that in the statute if you’d like. The duration is fixed by 17 U.S.C. §302(a) (“a term consisting of the life of the author and 70 years after the author’s death”), made applicable to materials created before 1978 by 17 U.S.C. §303(a). ↩
On the flip side, shouldn’t Karen consider copyright of her own compilation? I’m assuming, perhaps incorrectly, that Karen is doing more than making a photo album with her aunt’s research attached. I did something similar as a birthday gift for an uncle in 1988. My book included a well-documented family history, copies of family papers from the 1800’s and copies of vital records that I had purchased from fifteen years of research. Years later, a family member of my uncle then hired a “professional” genealogist from APG. This “professional” posted my gift word-for-word on Ancestry in 2015, without permission or attribution from me, representing it as her own work. Sorry for repeating a worn-out story that many have told before. However, Karen’s efforts should not be taken for granted by anyone and her research should be protected.
Karen can’t get a copyright of any kind if all she does is use materials created by others. Even in a compilation, there must be some degree of original work to qualify for copyright.
Thank you. Therein lies the crux of the matter.
A question about “published” letters. If the author of the letter has died, and the letters are available through an archive, and a third party has published a collection of those letters, are they deemed to be published?
As long as the collection was legally made available, yes. The time begins to run with respect to published materials when they were legally published (to protect against those who stole material and published it).
It might be helpful to clarify that legal publication for copyright purposes must be with the authorized permission of the copyright owner. Many items from archival collections are published by third parties without the permission of the copyright owner, and so are “unpublished” for copyright purposes. On the flip side, if it is published with the permission of the copyright owner, then the copyright clock starts running from the date of that publication. That means that there are letters from John Adams that are still protected by copyright because they were first published between 1925 and 2003, with the permission of the copyright owner!
As a general introduction to some of these questions, I recommend the brochure “Copyright and Unpublished Material” by the Society of American Archivists at https://www2.archivists.org/publications/brochures/copyright-and-unpublished-material.
Thank you for adding your always-valuable comments!
THANK YOU!! for pointing to that wonderful table allowing a quick lookup of the US copyright terms!!!! (I had given up ever being able to keep up with all the complications – and frequent changes) as well as those in Canada, where I live and work. The question of US copyright doesn’t come up that often (thank goodness) but every time it did I found myself drowning in a Sea of legalize.
IMHO, if there is a part of the book’s family history that is original writing by Vicki, as opposed to simply publishing photos or photocopies of letters/documents, that original writing would be her “intellectual property” and subject to copyright laws. Any photographs or other documents already in the public domain that she used would not be. In the Karen’s case of transcriptions of letters or other handwritten documents, it is the transcriber’s interpretation of that handwriting and, in some cases, adding or correcting capitalization, or creating sentence and paragraph structure, that is his/hers “intellectual property” and therefore automatically subject to copyright infringement. While the original documents are in the public domain, the transcriber’s version is not. I also had a relative (whom I had never met) plagiarize and publish an initial draft of my transcription of a common ancestor’s Civil War letters that I had shared with her sister. The letters had no punctuation or paragraphs, capitalization was random, spelling correctness varied, etc. My version that she unlawfully published corrected all spelling, created sentence and paragraph structure and interpreted hard to read handwriting. I also had many footnotes which she also incorporated into her book. I sued; we settled; I was able to publish my book which is now officially copyrighted, as well as the original draft. I will note that my published book retained the original spelling, but retained the sentence and paragraph structure that I created along with over 400 footnotes.
I respectfully disagree — strongly — with the notion that a transcription is going to be copyrightable. A translation, yes, but a transcription is going to be a hard hard sell on originality. Your aim in a transcription is to achieve an exact copy of the text of the original. That’s lacking the creative spark needed for copyright.
Judy, I agree that a transcription that is exact would not be copyrightable. However, in my case and referring to the original draft, I corrected spelling and capitalization, added punctuation to create sentences and paragraphs, wrote footnotes, introductions and other material, all of which appeared in the plagiarized publication, not just the letters. The original work in the draft was my intellectual property, even if the letter transcriptions were not. In the actual book that I published, I used the original spelling and capitalization, only adding punctuation to create sentences and paragraphs for readability. Therefore those portions of the book that were strictly letter transcriptions were not copyrightable. However, the book also contained original writings in the form of footnotes, appendices, preface, introductions to each year’s letters, original maps, etc. Those portions of the book were copyrighted, as were the original writings in the original draft.
My point about Vicki’s question was that if she had herself written the family’s history, as opposed to just publishing documents and photos, that writing would be her intellectual property. Would you agree that is correct or not?
Mere changes to punctuation or capitalization would still, I suspect, not be enough to qualify for copyright. However, the footnotes, the introductions and all other new material added are all clearly copyrightable. So yes, while documents and their transcriptions aren’t (and in my view shouldn’t be) copyrightable except by the original authors, all other parts of the materials in which those documents and transcriptions are included should be. It’s like when you take a book first published in 1850 and republish it. You don’t get a copyright on anything that had been published before. But your new preface and footnotes and the like, sure.
I need to clarify my last paragraph. Vicki mentioned a “well documented family history” – that’s the portion to which I’m referring, and questioning as to whether she wrote it herself and documented it with non-copyright materials or whether she meant it was a family history comprised of published letters, photos and other documents. If she wrote it herself, would that portion (not the photos etc) be subject to copywrite?
To me, this is a case where the law just hasn’t caught up with reality and doesn’t represent the interests of family historians (who are just as much preserving cultural history as family history). Something needs to change. These are exactly the types of materials that tend to get lost or destroyed, far more so if we have to wait as long as 70 years after a creator’s death to make their unpublished material publicly available. Too many of our family members don’t want this stuff and neither do many archival repositories, who are running out of storage space. Our best option these days is to post our unique sources to reputable online genealogical services. So for the letter an aunt wrote before she died in 1974, which helps confirm an early 19th century relationship, I’m supposed to wait another 24 years before I transcribe her exact words or upload the scanned image to FamilySearch? Well, I won’t live that long, no one else will have any interest in doing it, and the letter will have long since gone in a landfill. What an absolute shame, and my aunt would have been horrified that an outdated law would prevent me from sharing what she tried so hard to communicate and preserve. There is no good reason for this.
I agree that copyright lasts way way too long these days. It was originally a much shorter period and extending it well beyond the lifetime of the creator doesn’t reward the creator or make it more likely that the creator will create (the aim of intellectual property law of all kinds). Congress certainly could shorten it even under international agreements to no more than 50 years after the creator’s death if it had the political will to do so. But in the meantime whether we like the law or not, we need to comply or risk consequences, and I choose to go the safe route instead: getting permission from the heirs is all that’s needed so we need to focus on that.
Going back to Vickie’s original comment. I realise that the person slurping up her work and putting it online was legal, but surely there’s also an ethical issue, especially from a professional or someone with sound academic qualifications in any discipline? It’s happened to me too with work I’ve created , not transcribed or simply copied documents. Frustrating when people should know better.
Absolutely NO dispute on the ethical issue. Among other things, we have a profound ethical obligation as genealogists to cite our sources — and swiping someone else’s work doesn’t cut that mustard at all. The Genealogist’s Code of Ethics I’m required to adhere since I hold certified genealogist credentials from BCG, provides, in relevant part: “I will not represent as my own the work of another. This includes works that are copyrighted, in the public domain, or unpublished. This pledge includes reports, lecture materials, audio/visual tapes, compiled records, and authored essays.” It further provides: “I will not reproduce for public dissemination, in an oral or written fashion, the work of another genealogist, writer, or lecturer without that person’s written consent. In citing another’s work, I will give proper credit.”
In response the Jane’s cri de coeur, copyright doesn’t exist in a vacuum. Even though the creator of the work may be dead, there has to be a living heir to enforce copyright, and more to the point this is the person to whom you can turn for permission to transcribe and/or publish the work. Under US federal law and most other jurisdictions, copyright follows the same rules on inheritance as other forms of property. However the actual inheritance and intestacy laws vary among the states and so it can be tricky to track down the current day owner of a copyright which was not specifically bequeathed in a will.
As a matter of interest, under the law in the UK, if an unpublished work which subject to copyright is bequeathed to another person without any specific mention of what should happen to the copyright in that work, the copyright automatically transfers along the physical work. In other words if you have inherited great aunt Bessy’s letters or diaries, you would probably also own the copyright in them.
In the US, copyright passes as a matter of personal property inheritance (by will or intestacy) — but it is possible for the right and the thing to pass separately.
I’ve long thought that the Cornell University table was brilliant. Here is an equivalent for Canadian copyright: https://copyright.ubc.ca/public-domain/
Thanks very much for that!!
Thank you for this! I’m in a similar situation: I purchased a box of letters to/from my great-aunt on eBay last year, and I’m hoping to scan and transcribe them for a family history book. I wasn’t worried, but it’s good to know that I should be in the clear copyright-wise to do this. 🙂