Chris Wehner had an interesting post on his blog the other day on historical documents and copyright. Someone asked Chris who owns the copyright for historical documents.

Copyright can be kind of a tricky concept to wrap one’s arms around. You cannot copyright an idea, only the expression of that idea. Thus, I had an idea to write a book about the Battle of Monroe’s Crossroads. That idea, in and of itself, cannot be copyrighted. The book itself–how I expressed that idea–is what is subject to copyright protection. Once we get our arms around that concept, we can then move on to the more difficult question of what is and is not in the public domain.

The first issue, of course, is whether anyone has copyright rights to a given document. For instance, official government documents are, by definition, in the public domain and not subject to copyright. Anyone can use them for whatever purpose they please. Thus, virtually everything in the collection of the National Archives and Records Administration is in the public domain, as they are official government records. The same probably holds true for state governmental archives as well. I believe it also applies to things like the manuscripts collection at the Library of Congress.

Where it gets trickier is with material in non-governmental repositories such as universities and local historical societies. The following passage comes directly from the United States Copyright Office web site regarding the question of how long copyright protection lasts:

Works Originally Created on or after January 1, 1978A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.Works Originally Created before January 1, 1978, But Not Published or Registered by That DateThese works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120-year terms apply to them as well. The law provides that in no case would the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.Works Originally Created and Published or Registered before January 1, 1978

Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105-298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years.

Public Law 102-307, enacted on June 26, 1992, amended the 1976 Copyright Act to provide for automatic renewal of the term of copyrights secured between January 1, 1964, and December 31, 1977. Although the renewal term is automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office.

Public Law 102-307 makes renewal registration optional. Thus, filing for renewal registration is no longer required to extend the original 28-year copyright term to the full 95 years. However, some benefits accrue to renewal registrations that were made during the 28th year.

The big question is whether one must obtain permission to use materials in university and local historical society collections. I usually take the position that, irrespective of what the university or historical society says, this material is in the public domain and that I don’t need permission to use it, and that I certainly don’t need to pay for the privilege of using it. The author has certainly been dead for longer than the requisite period and the material has never been published. Consequently, I don’t see how it can be subject to, or covered by, copyright protection so many years after the fact. I’ve said that I’m willing to take that fight on, as I am confident that I will prevail. However, I could also be convinced that I’m wrong about this. I have two readers of this blog who could probably contribute a great deal to this discussion. Lawrence Ebert is an intellectual property lawyer who maintains an interesting blog devoted to the business of intellectual property, and Art Bergeron is an archivist at the United States Army Military History Institute. I would really appreciate and welcome their input into this interesting issue.

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Comments

  1. Dave Powell
    Wed 30th May 2007 at 6:43 am

    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…

  2. Art Bergeron
    Wed 30th May 2007 at 7:36 am

    None of the historical documents at the U. S. Army Military History Institute are covered by copyright to my knowledge. When asked for permission to publish them or to quote from them, we respond that we do not issue such formal permissions but ask only that we be cited as the source for the document(s) in appropriate notes and bibliographies. The same applies to the photographs in our holdings.

    It is my understanding that some people donate documents to a library or archives with the stipulation that they not be published without the written permission of the donor or the donor’s heirs. For example, a really great diary by a Confederate soldier is donated to Beauregard State University in Mamou, Louisiana, with this stipulation. I could not publish the diary without obtaining permission. I might be able to quote from it under “fair use.” This does not seem to be a copyright issue but another whole ball of wax.

  3. Wed 30th May 2007 at 9:45 am

    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.

  4. Wed 30th May 2007 at 10:52 am

    Eric

    And what am I, chopped liver? LOL

    Art is of course correct in what he says. I have not fully explored the issue (Ebert will likely know), but I would love to read and study appellate decisions discussing the use of non-governmental documents hailing from university and other private holdings vis a vis the situation Eric described. However, I do not believe there are specific cases that have reached this level regarding this subject. If so, please send me cites so I can examine them.

  5. Wed 30th May 2007 at 11:23 am

    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….

  6. Brooks Simpson
    Wed 30th May 2007 at 12:20 pm

    I can tell you that when you publish a documentary edition of the letters of somebody, you need to contact family members for permission. This can become a bit difficult, for sometimes someone believes they now have something worth something and they’d like a piece of the action. Once they are acquainted with the true costs of having a piece of the action, they tend to quiet down. But you can see family influence in the Grant letters, both as published and as used. If you look at volume one of the Grant papers, a great deal is cut out in places, at the direction of the family. The family also did not release a sizeable chunk of material for some time. That material was microfilmed by the National Archives: I was given permission to use that microfilm and to quote from those documents in my 1991 Let Us Have Peace. Subsequently the family gave those papers over to the Library of Congress, and Geoffrey Perret labored under the mistaken assumption that he was the first historian to use them.

  7. Wed 30th May 2007 at 2:09 pm

    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

  8. Wed 30th May 2007 at 3:49 pm

    Jim those are excellent points…and they are ones that I have considered already and have yet to come up with a solution. When possible we include high res scans of letters. I have asked some collectors for high res scans to transcribe the letters myself (well, my volunteers) and rarely is that granted.

    But also, your post kind of backs up my take on this. You have been able to purchase “several”, but not all of the letters and there have been a bunch from Ramsay and to him. (It would have taken a small fortune for all of them.) The winners I suspect are multiple. I have no doubt you will take excellent care and make sure that they are taken care of in the future. But what about the others? We truly do not know. A collector passes away and what happens to those letters… Perhaps an estate sale or perhaps a careless relative disposes of them.

    I understand you had to spend hundreds of dollars. I had to spend $700 for 14 letters of the regiment I wrote about. It was appalling to me.

    So anyway, I would be happy to hear from you about Ramsay as you have offered.

    Kind Regards,
    Chris

  9. Matt Soule
    Wed 30th May 2007 at 10:15 pm

    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”.

  10. Brooks Simpson
    Thu 31st May 2007 at 2:49 am

    You ask two questions. In the former case, I don’t know, although in some cases someone down the family tree does deed over the rights (this is the case with Lincoln’s letters: his son Robert surrendered the literary rights to the Abraham Lincoln Association). In the later case, it can be all members, although some families follow the decision of one member (with Sherman we contacted great many people; with Grant I got permission from the descendant in charge of the collection).

    The issue of literary rights and so on appears to have been an obstacle to a complete documentary edition of Lee’s letters.

  11. Steve Ward
    Thu 31st May 2007 at 5:14 pm

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

  12. Thu 31st May 2007 at 6:34 pm

    Thanks for all of the input, guys. The fact that this post has generated so many responses and so much discussion is proof positive that this is an important topic and one that requires some Congressional attention in order to clarify these questions for researchers like me.

    Eric

  13. Thu 31st May 2007 at 6:35 pm

    Chris,

    No problem at all about plugging your site. Feel free to put up some more information about it if you like.

    And thanks for spurring this discussion in the first place.

    Eric

  14. Sat 02nd Jun 2007 at 12:02 am

    Does anyone know what rights the transcriber of a public domain work has over his/her transcription? Assume that copyright on an unpublished manuscript has unabiguously expired and scholar scans and transcribes it. Does that scholar hold copyright on the transcription? How about on the scanned image? May they prevent plagiarism by link farmers, or do the link farmers have the defense that their site-scrape is public domain as well?

    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!

    I’m working on software to automate manuscript transcription, so this is extremely relevant to my project. The last thing that I (or soldierstudies.org, for that matter) need is to reward users for their work transcribing documents by having their transcriptions scraped and re-posted by the sort of ad-festooned plagiarists that have been poaching Wikipedia .

    Thanks for a thought-provoking discussion.

  15. Dave Powell
    Sat 02nd Jun 2007 at 9:06 am

    >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

  16. Sat 02nd Jun 2007 at 9:36 am

    Ben,

    Dave’s got it just right.

    Copyright can attach to anything new done to the original work. So, if you annotate the original work, as I have done on several occasions, the annotations are subject to copyright protection. The original material, however, is in the public domain and is not subject to copyright protection in any form.

    I hope your software works out. It will make my work infinitely easier. I have an entire set of letters to transcribe.

    Eric

  17. Sat 02nd Jun 2007 at 11:37 am

    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.

  18. Sat 02nd Jun 2007 at 3:54 pm

    Ben,

    Exactly.

    I will keep an eye on your blog and see how your project progresses.

    Eric

  19. Jon Garon
    Tue 14th Sep 2010 at 10:21 pm

    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

  20. Jen
    Wed 16th Oct 2013 at 8:54 pm

    We have some fabulous civil war letters in our family. Never been published and now we are working on a blog for sharing about them. Do these need to be copyrighted?

  21. Thu 28th Nov 2013 at 1:33 pm

    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.

  22. Thu 28th Nov 2013 at 1:35 pm

    Don’t know if you can remove the graphic next to my name, but that’s for our church library where I’m the librarian and use WordPress for our catalog.

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