Owning the Past? The Digital Historian’s Guide to Copyright and Intellectual Property

Sharing the Property of Others: Copyright and the Public Domain

ost online historians will probably conclude that more conventional copyright practices best serve their purposes. But familiarity with the principles behind the Creative Commons reminds us of the ethos of sharing and cooperation that should underlie work on the web and of the need for balance in matters of copyright. (And we should already know that all historical work relies on the open sharing of ideas and sources.) An even more forceful reminder comes when you begin to think about providing content on your own website. Very quickly, you start worrying more about “what am I allowed to include of the work of others” and less about “how can I protect what’s mine.” Even the most fervent defenders of copyright start to appreciate the need for balance when they start to assemble a website that includes historical resources or the work of other historians.

The copyright problems of the online historian are both easier and harder than those of others working in the digital realm. On the one hand, because historians focus on the past, they are less likely to get entangled in the realms where rights issues are mostly intensely focused and policing is most vigilant—the MP3 music files of hot new bands. On the other hand, working with the sources of the past, especially the twentieth-century past, puts you up against some of the thorniest copyright questions—and the most difficult issues to research. The good news is that vast swaths of documentary evidence of the past are in the public domain (the realm free of copyright restrictions), and you are free to post that evidence on your website with no questions asked. But how do you know what sits in the public domain?

Let’s start with some easy cases and broad categories. The law puts works by employees of the U.S. government done as part of their jobs in the public domain. Twentieth-century historians benefit from this exemption because so many historical topics have in-depth coverage in U.S. government records and documents. Even less obvious areas of cultural and social history find rich documentation in government records. For example, one of the most revealing collections in the Library of Congress’s American Memory—the 160,000 photos from the Farm Security Administration and the Office of War Administration—is available online because a government project produced them. You can, for example, take any of those photos and use them on your own website. Interestingly, you can also purchase the “right” to use some of those same photos from Corbis—the digital equivalent of selling you the Brooklyn Bridge. Like your right to walk across the Brooklyn Bridge, you have the right to use these government-produced photographs however you choose. Always look first for a copyright- or royalty-free version before shelling out to Corbis or another stock footage company.

The same is true for everything published before 1923. Ironically, however, unpublished works from that same period have more protection, the same as works newly created today—the life of the author plus seventy years. Thus, only if the author has been dead seventy years or longer (since 1934 as we are writing this in 2004) is the work now in the public domain. If tomorrow you discover an unpublished song written by Irving Berlin in 1912, you will not be able publish it on your website (unless you have permission from his estate) until 2059 because Berlin died in 1989. On the other hand, you can do what you like with his published 1912 song “Alexander’s Ragtime Band.” If you don’t know when the author died (or if the work is anonymous, pseudonymous, or written for hire), it gets even more protection—120 years from the date of creation (see chart).³²

When Works Pass Into the Public Domain in the United States
Unpublished Works
Type of Work	Copyright Term	What was in the public domain in the U.S. as of 1 January 2005
Unpublished work or unpublished works created before 1978 that were published after 31 December 2002	Life of author + 70 years	Works from authors who died before 1935
Unpublished anonymous and pseudonymous works, and works made for hire (corporate authorship) or unpublished works when the death date of the author is not known	120 years from date of creation	Works created before 1885
Unpublished works created before 1978 that were published before 1 January 2003	Life of the author + 70 years or 31 December 2047, whichever is greater	Nothing will enter the public domain until at least 1 January 2048

Works Published in the United States
Date of Publication	Conditions	Copyright Term
Before 1923	None	In public domain
1923 through 1977	Published without copyright notice	In public domain
1978 to 1 March 1989	Published without notice and without subsequent registration	In public domain
1978 to 1 March 1989	Published without notice but with subsequent registration	70 years after the death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation
1923 through 1963	Published with notice but copyright was not renewed	In public domain
1923 through 1963	Published with notice but copyright was renewed	95 years after publication date
1964 through 1977	Published with notice	95 years after publication date
1978 to 1 March 1989	Published with notice	70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation
After 1 March 1989	Notice no longer required	70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

Source: This chart is based directly on one first published in Peter B. Hirtle, “Recent Changes to the Copyright Law: Copyright Term Extension,” Archival Outlook, January-February 1999 and the modified online version at http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm#Footnote_1. Hirtle’s chart is, in turn, based in part on Laura N. Gasaway’s chart “When Works Pass Into the Public Domain,” at <http://www.unc.edu/~unclng/public-d.htm>.

Some copyright guides, which often err on the side of caution, advise you to assume that everything published after 1923 is covered by copyright. Not true. First, some works were published without proper copyright notice. Remember those © notices that we told you not to worry about? Well, before 1989, you did have to worry about them and published works that failed to include the © before that date have, by definition, fallen into the public domain. Keep in mind that such absences were not always accidental. The young radicals in Students for a Democratic Society who mimeographed thousands of copies of the Port Huron Statement in 1962 did not bother with a copyright notice, and you can publish it freely on your website. By contrast, Martin Luther King, Jr., copyrighted all of his speeches, and his estate—to the consternation of many—claims copyright to his “I Have a Dream” speech delivered the following year.³³

Other authors critical of the status quo have struggled with the ethics of deriving commercial benefit from the ownership of their words. In some drafts of his will, Leo Tolstoy dedicated his copyrights to the public domain but then backed away in his final testament. In the late 1930s, according to Pete Seeger, Woody Guthrie distributed a mimeographed songbook that declared on one page, “This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of twenty-eight years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.” Yet by the late 1940s, Guthrie had hooked up with an aggressive young music publisher named Howie Richmond who copyrighted Guthrie’s songs, which today generate substantial revenues for the Guthrie estate. Richmond, in fact, went well beyond securing the rights to new compositions; he also became very rich from his discovery that he could copyright traditional songs like “Greensleeves,” if he made significant changes in the words or lyrics.³⁴

The second exception—works that did not have their copyright renewed—is even more important and less recognized. Until the 1976 copyright act, authors were granted a twenty-eight-year copyright and the ability to renew that copyright for a second twenty-eight-year term. Thus a book copyright in 1930 fell into the public domain in 1958 unless renewed that year. Those authors (or heirs) who did renew their copyrights have had them continuously extended by subsequent revisions of the law. Most famously, the Disney Corporation copyrighted Mickey Mouse in 1928 and renewed the copyright in the 1950s, which should have protected the rodent’s copyright until 1984. But the 1976 law gave him another nineteen years of copyright life (to 2003). Thanks to the Copyright Term Extension Act, Mickey can lounge profitably under the Disney corporate umbrella for another twenty years (until 2023). The Disney Corporation’s copyright renewal in the 1950s was the exception rather than the rule. According to a 1961 copyright office study, fewer than 15 percent of all registered copyright holders renewed; for books and other texts, the percentage is half that.³⁵

This very good news for historians of this period is tempered by the requirement that you must determine whether or not the copyright was renewed. You can do that by seeing if a later edition of the work includes a copyright renewal notice or by contacting the author or his or her estate and asking. But keep in mind that copyright holders—shockingly enough—have been known to lie about what they actually own. We once called Atlantic Monthly about permissions and were told that everything was renewed, but, in fact, they did not renew the copyright on anything from before July 1934. Finally, you can search the copyright records. Until recently, this required a trip to the Library of Congress or another major library for works copyrighted before 1978 or paying the Library $75 per hour to search for you. But computer scientist Michael Lesk and Carnegie Mellon University have recently created a searchable database of copyright renewal records for books published between 1923 and 1963. (After 1963, books were automatically renewed.)³⁶

The situation gets murkier for works created and published outside the United States. Copyright terms within the European Union are generally similar to those of the United States (life of the author plus seventy years). Several other countries—for example, Canada, China, Japan, Russia, Australia, and Argentina—have terms of life plus fifty years. But numerous exceptions and qualifications exist. For example, works created by Americans during World War II get a 3,794-day extension in Japan.³⁷

As if this isn’t enough to drive you screaming from your computer, you need to figure out whether you should worry about the laws in countries where your website is accessed (i.e., the world), rather than located. Canadian attorney Christopher Hale maintains “the mere fact of accessibility may not constitute an infringement in the laws of other jurisdictions.” Thus Project Gutenberg of Australia posts online copies of books like The Great Gatsby (1927) and George Orwell’s 1984 (1949) that are still covered by copyright in the United States, although it (coyly) advises you not to read them if you are in a country where copyright remains in effect. But Columbia law professor June Besek cautiously warns (in a publication co-sponsored by the Library of Congress) that a digital archive “could be exposed to infringement suits if it were accessible outside the United States. Foreign copyright owners might be able to sue under the laws of a country where the presentation of the work was an infringement.” On the one hand, the possibility of a nonprofit historical website being the subject of such a suit is remote. A French copyright owner would have trouble getting the Scranton Historical Society into a French court and would probably not bother, given that jurisdictional issues remain murky and that the historical society would not have any French assets that could be seized in a successful judgment. On the other hand, your university might react nervously to a threatening letter from a foreign rights holder, and you should try to respect foreign copyright laws as much you do your own.³⁸

Another difference between U.S. laws related to intellectual property and those of many other countries is that those countries give authors “moral rights” that do not exist in American law. For example, authors, even if they have sold their work’s economic rights, might have the right of “integrity,” which prevents alterations of this work—for example, colorizing a film. In some countries, these rights continue beyond the end of copyright. If your project places you under non-U.S. law, you need to consult more specialized works on this topic or visit the UNESCO website, which contains the copyright laws of most countries.³⁹

Even if you are working only in the United States, you need to be aware of one recent change that has affected the copyright status within the United States of many works originally published abroad. In 1994, the United States signed the General Agreement on Tariffs and Trade (GATT), and the implementing legislation restored copyright protection to foreign works that had fallen into the public domain in the United States because their owners had not complied with copyright “formalities” here or because the United States had no copyright relations with the other country at the time the work was published. For example, Jean Renoir’s masterful anti-war film, La Grande Illusion (1937), which had fallen into the public domain in the United States because the copyright had not been renewed, had its copyright restored in 1996 through GATT. Because the United States had no copyright treaty with the Soviet Union until 1973, all works published there before that date were in the public domain in United States. Now they are covered by copyright. These changes have particularly vexed historians like Paul Halsall who have developed extensive websites in world history and who, thus, want to include sources published outside the United States.⁴⁰

Despite the vast quantity of material that has made it into the public domain, many historians will encounter materials for which copyright remains in effect. You will have two main options then: ask for permission, or consider whether you can make “fair use” of the copyrighted material. Asking for permission is the simpler of the two approaches to explain, although not necessarily simpler to carry out. But don’t ask unless you are sure that you need permission. When people are asked, they often request a fee or impose restrictions—even if they don’t have the right to do either. In the 1990s, when the Truman Presidential Library sought permission to include the Chicago Daily Tribune’s famous headline proclaiming “Dewey Defeats Truman” in an orientation video, the Tribune said “no.” But, in fact, a three-word headline does not qualify for copyright protection, and the Library could have proceeded without asking.⁴¹

Of course, many copyright holders are more straightforward and generous than this, especially when the permission is for use by an educational project. The Montgomery Advertiser allowed us to publish a 1932 editorial at no charge in a history CD-ROM, even though the racist editorial did not portray the newspaper in the most favorable light. In the early days of the web, when much looser assumptions about copyright prevailed, Paul Halsall included in his online History Sourcebooks a number of older works that were still formally under copyright. After stricter adherence to copyrights became the web norm, Halsall wrote to the authors and offered to remove the texts. But he reports that most authors “have been most gracious” and allowed them to remain online.⁴²

In other cases, the rights holder will ask you to pay a fee. Often they levy a modest charge for educational projects and nonprofit uses. Unfortunately, many publishers demand an annual payment for presenting something on the web, and that is a cost that is hard to cover in the long run even if you have a grant at the moment. For example, the New York Times charged us $150 to publish a 1927 interview with Charles Lindbergh on a CD-ROM. But when we later asked the cost to publish it on a public website, we were told that we would have to pay $300 per year, which they touted as a deep discount from their standard annual fee of $1,000.⁴³

You may decide that your budget can’t afford the New York Times, but at least you can track down the Times easily. Unfortunately, sometimes you will not find the rights holder so readily. You think that the text, image, music, or film might be under copyright, but you can’t find anyone who claims to hold it. What do you do? Many publishers will tell you to forget about using it; historian David Kirsch got that response when he tried to publish a New York street scene in the Business History Review for which the rights holder could not be found. Kirsch had to settle for a much less revealing photograph. One of the most frustrating problems facing digital historians is dealing with what have been called “orphan works” whose copyrights have not expired but which are no longer available commercially and whose owners are, therefore, difficult to locate.⁴⁴

On the web, however, you are the publisher. The buck (starts and) stops with you. Some history websites follow a strict policy of not posting anything without explicit permission. But the Constitution Society, a libertarian group devoted to “principles of constitutional republican government,” which maintains an extensive website of historical documents, makes “a reasonable effort to find someone to grant permission” but “if none can be found,” they publish the material anyway along with a disclaimer. Even if the rights holder later shows up, most reasonable people won’t sue you if you offer at that point to remove the material or pay them a fee. Of course, we can’t guarantee reasonable behavior. So carefully document the efforts you make to find a rights holder.⁴⁵