Copyright and Unpublished Manuscript Materials

I would love to see more exploration of this issue as well. Having now done research at about 75 different archival collections, I find that they are all different. About half ask that you fill out a “permission to publish” request form, some quite detailed. I have a stack of those. Some don’t bother. Some ask that you provide them with a copy of the finished work for their archive.

They seem to be all over the map on this question.

Plus, there is the issue of “fair use.” Do these archives want you to secure permission every time you quote a single word? How about a citation with no direct quote? “Fair use” would seem to say (to me, but I am no expert here) that you could quote a reasonable portion without securing permission, just like a published work. If I were publishing an entire letters collection, I would expect to secure permission. If I am quoting two lines out of a collection of 150 letters, that sounds like “fair use.”

None of these places give you any sort of guidance on the issue, either, in my experience…

Thanks for the info, Art, and Dave is quite right that institutions are all over the board on this. From universities on down to the littlest local historical society, they can ask you to sign a permission form, provide a citation to them, provide a copy of the work, pay a small fee, or do absolutely nothing at all. Regardless (and I believe Eric and many others do the same) I always cite to the repository (with thanks) whenever possible. They hold the thing, they should be recognized and thanked for it.

But you sure won’t find consistency in the policies of all these institutions.

J.D.

Eric I am happy you followed up on my post. From my limited research, archives were also all over the map. For example, where I received the most copies of documents (1000+) was the Wisconsin State Historical Society. When I approached them for permission to publish (at the request of my publisher) they flat out told me they do not and cannot own the copyrights to those documents per the copyright law… blah blah. Then of course there are other archives and such that will not even send copies of letters etc without me filling out their permission to publish.

To add more to this discussion, I want to point y’all over to my pet project: Soldier Studies: http://www.soldierstudies.org, I suspect this will bring up some discussion. (Eric not trying to plug the site, just feel it is relevant to the discussion.)

Anyway, thanks for your post here….

Eric,

Thanks for your posting on this topic; I had seen (and commented) on Chris’s original post on his blog.

I will certainly defer to you and others as to matters of law and I definitely appreciate the excellent SoldierStudies website that Chris has started.

However, I would like to add the following opinion…

The great advantage to having the original correspondence (and I agree w/ Chris that ownership does not equal copyright) is that there is less question as to the transcription.

For example, Chris wouldn’t know this, but I own several of the letters he attributes to “Charles Ramsey” on his website…I spent several hundred dollars on the few that I own of the collection, which – to my understanding – is well over 100 letters.

From what I can tell – and Chris should feel free to correct me if I’m wrong – he has taken for granted that the transcription that is on EBay (and which he has transferred to the website) is correct…as far as the original, all he shows is the JPG image provided by the seller. What if the transcription on the auction site is not correct, though? As I hold the original letters and have done a bit of add’l research, I might find that the soldier’s name is “Ramsay” not “Ramsey”…that he was in the 44th Ohio, not the 41st Ohio…that only part of the letter had been transcribed and not the whole thing, etc

I’m not going to argue that Chris doesn’t have a right to post the transcript of letters that I own and spent money on…all I’m saying is that transcripts w/out originals should be used w/ caution. I think that’s the advantage of having the original in ones’s hands (and the benefit of the investment) and/or asking permission from the owner for an image of the original…my reply to Chris’s original post indicated that I’ve had pretty good success in asking permission to quote from, etc., and I definitely wish that he had better success himself for his own writing efforts.

For my part, I’ll follow up w/ Chris soon on how my research reconciles w/ the data for Charles Ramsey/Ramsay on his website…provide him w/ copies of my letters…etc

Eric – as a side isue to this topic…I personally think that another problem is image charges…how do those fall into the copyright arena? I understand a nominal charge for reproducing an image from the original…but the additional “user fees” – sometimes several hundred dollars (esp. if you want to use it on the cover) are killing me. I’m not talking about the scan-and-use problem (and it’s a problem) that got Dave Eicher into trouble and on which you’ve commented, esp. as regards White Mane.

As always, thanks for your EXCELLENT blog.

Best Regards,

Jim Schmidt

1) Eric, thanks for posting this interesting and relevant topic.

2) Brooks, when you say you must get permission from “family members” who is that exactly? For example, if the author of a letter had no surviving direct descentent, do you need to find the descentents of his siblings? Does the closest one have all the say?

3) May 29 (32 years ago) was the date of Steve Prefontaine’s last race, and also his death in a car accident. There is an awsome photo of him passing a pained Frank Shorter in the last turn. I would love to post it, but don’t think I can locate the photographer to get his permission. I highly recommend the movie “Prefontaine”.

Eric: There is an interesting discussion of this very issue in today’s NY Times. Steve Ward.

>Wandering through Borders tonight, I poked around a bit and found that most of their out-of-copyright books have 2007 copyright notices by the publisher. Funny, I had no idea Charles Dickens signed a deal with Borders Classics!

Ben,

the copyright generally extends to any new material in the work – introductions, indexing, literary criticism, etc. It does not extend to the original material. Hence, you could reprint all of Dickens’ words in the above example, without fear of legal trouble. But if there is a new intro, you cannot scan that…

Dave Powell

Eric and Dave,

If I understand the two of you correctly, the copyright status and ownership is passed along with the work as it is tranferred from the physical manuscript medium to the digitized images of the manuscript, to the transcription. This makes sense — upon reflection, an author who hires a typists isn’t transferring the copyright over the typed copy of their book to that typist.

So in my case, the transcription of the out-of-copyright manuscript remains public domain, while the markup, annotations and indexes added by my users is their property, subject to whatever licenses they’ve agreed to.

Thanks for your encouraging words, Eric. I’m documenting my project at my blog if you’re interested in tracking its progress or offering suggestions from your own experience.

Though the original thread is from a few years back, I thought I’d add a couple of additional considerations.

Archives will often receive original materials, but unless they receive those materials from the author or the present copyright holder, the archive could not have received the copyright. Even if the materials were provided by the author, the copyright would not transfer unless there was an agreement to do so. (The agreement does not need to be in writing if it is non-exclusive, so this may become a factual question.)

The New York courts that have addressed the copyright infringement issues involving republication of personal letters have not applied contract law use any agreement with the archive as the basis for determining the appropriateness of the publication. (A court could, of course, enforce the contract. But the measure of damages would be very different than the injunction sought by the copyright claimant.)

The other consideration is the date of the work’s creation, date of publication if any, and date of the author’s death. All three dates must be assessed to determine whether a work remains protected by copyright. Beyond these rights, however, family members can only assert power to the extent they retain physical materials or to the extent the researcher agrees to limit the work out of deference or contractual agreement.

I hope this helps.

Jon

I frequently portray a woman whose family ran an Underground Railroad Station & her brothers were in the “Fighting Fifth” Michigan Infantry. I’ve been using indexed & long ago microfilmed Detroit newspaper articles (at the pace they appeared 150 years ago) on a blog about that regiment.

My work has the full support of the family.

When a local university archive began back in the 1930s, a family member died and letters were donated to the library. A librarian told me that they wouldn’t be accepted nowadays. That doesn’t mean they wouldn’t assert rights. I want to post my transcriptions of the letters of the family during the Civil War. Will I have a possible problem?

I don’t mind posting my thanks to both the family and the library, but don’t want a legal battle with the university’s lawyers.