Different laws, different rules
If there’s any question that has readers more confused than the “why can’t I use this item from that website” question, The Legal Genealogist doesn’t know what it might be.
It’s a question that comes in here almost on a daily basis.
Just yesterday another reader — Jennie from New Mexico — asked again: “If you’re right that anything published before (1926) is out of copyright, then why can’t I use that newspaper article from 1899 that I found on (ThatNewspaperWebsite)? How can they claim copyright on it?”1
The answer is that the website isn’t claiming copyright on any out-of-copyright materials.2 What it’s requiring is your agreement to limits on using its copies of materials it puts online.
In other words, this is contract law, not copyright law.
Let’s see if we can make this as easy as possible.
Let’s say that there is an original letter written in 1800 by Famous Person, who died in 1810. I own that letter, and nobody else even has a copy of it. And you want to use it in your research.
Is that letter copyrighted? No. Because under United States law, copyright ends on unpublished materials 70 years after the death of the author.3
So… do I have to let you publish it?
I don’t have let you publish it or transcribe it or use even a little snippet from it.
I don’t even have to let you see it.
Unless you agree to my terms.
In other words, unless you accept my contract.
And I can make it as easy — or as hard — for you as I want. I can charge a lot of money for the rights to publish the letter. I can refuse to allow publication at all. I can give you permission to use it only for personal research. I can limit your use to extracting the facts and not quoting from the letter at all.
If I really want to be a pest, I can let you see it only just before midnight on odd-numbered Thursdays in February in Leap Years.
It doesn’t matter one bit that I don’t have any copyright interest in that letter.
Because I own the letter.
Now… let’s change the facts a little.
Let’s say there was one copy of that letter made in 1900 by Famous Person’s grandchild. That copy was published that year — 1900 — in Small Town News, a newspaper now digitized on Chronicling America, the fabulous free newspaper collection of the Library of Congress.
I can still put any limits I want on anybody accessing the original letter than I own.
But there are no limits on anybody accessing or using the copy published in 1900 in Small Town News and now available free online at Chronicling America. Because the contract for using things at the Chronicling America website is written by the Library of Congress, not by me. And its terms are very different from mine.4
And if somebody else had a copy of that issue of the 1900 Small Town News and put it on yet another website, that website could have yet another entirely different set of contract terms from mine or those of the Library of Congress.
Because each of us owns our own copy. And each of us has the right to set our own limits when we contract with others to access the copy that we own.
It has nothing at all to do with copyright.
This is contract law, not copyright law.
A different kind of law, with a different set of rules.
Cite/link to this post: Judy G. Russell, “Contract, not copyright,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 16 Feb 2021).
- The “published before” year changes every January 1 under changes in the Copyright Act that took effect 1 January 2019. Before 1 January 2019, copyright had expired on anything legally published in the United States before 1923. As of 1 January 2019, it became anything legally published in the United States before 1924. In 2020, before 1925. In 2021, before 1926. See Judy G. Russell, “Welcome to 1923!,” The Legal Genealogist, posted 2 Jan 2019 (https://www.legalgenealogist.com/blog : accessed 16 Feb 2021). Also, “Welcome to 1923!,” The Legal Genealogist, posted 2 Jan 2019; “Welcome to 1924!,” The Legal Genealogist, posted 6 Jan 2020; and “Welcome to 1925!,” The Legal Genealogist, posted 2 Jan 2021. ↩
- Except for a compilation copyright, which is a Very Different Thing Altogether. See U.S. Copyright Office, Copyright in Derivative Works and Compilations, Circular 14, PDF (https://www.copyright.gov/ : accessed 16 Feb 2021). ↩
- See Peter Hirtle, “Copyright Term and the Public Domain in the United States,” Copyright Information Center, Cornell University Library (https://copyright.cornell.edu/ : accessed 16 Feb 2021). ↩
- See generally Judy G. Russell, “Thank you, LOC!,” The Legal Genealogist, posted 9 Feb 2018 (https://www.legalgenealogist.com/blog : accessed 16 Feb 2021). ↩