Copyright Issues

To Support group Discussion about Historic Photographs

The bottom line on copyright is that significant research is necessary to accurately determine if a particular quotation is indeed protected by copyright, and this research most often is not worth the time or effort. And, thankfully, there is a way around this conundrum for those writing local history for non-profit purposes!

Objective: to understand the implications of fair use and to apply its concepts to evaluating your own work

(Relevant) Fair Use

The 1976 revision of the copyright law has at least one redeeming feature: fair use was codified for the first time. Fair use had been posited in a common law since the middle of the nineteenth century, but it took the 1976 act to actually define it. With this definition, you can easily see if your use of copyright material needs a credit line (it does) and if you need to pay permissions fees (in most cases, you won’t).

There are four factors to determine whether a particular use of copyrighted material is a fair use that would exempt the material from copyright restrictions. Wikipedia defines these as:

  • the purpose or character of the use (commercial or educational, transformative or reproductive);
  • the nature of the copyrighted work (fictional or factual, the degree of creativity);
  • the amount and substantiality of the portion of the original work used; and
  • the effect of the use upon the market (or potential market) for the original work.

You can use the material for free with credit if the material that you wish to cite will used for educational purposes, cites factual reporting representing a small portion of the original work, and would not significantly and negatively impact on the sale of the original work.

You CANNOT use the material for free if the material that you wish to cite will be used for profit and reprints large amounts of creative, fictional material that would be in direct competition to the original work.

Assuming that your use of copyrighted material falls into the first category, you should still notify the author and publisher of your plans for using the material and for the form and content of the credit line that they would prefer. Also, send them a copy of the material upon publication.

(Irrelevant) Background on Copyright

In the first half of the twentieth century, copyright was for 28 years, and the law also allowed one, 28-year renewal. Congress passed a revision of the copyright law in 1976 which changed the copyright landscape. However, any book that was not protected in 1976 — i.e., one that was published before 1920 — would be in the public domain from then on.

1976 Revision of the Copyright Law
This revision of the copyright law said that future work would be protected for 50 years from the death of the author/performer, or 75 years from the date of publication for anonymous works or works for hire. In addition, it said that older books which were still protected by copyright in 1976 would have protection extended to a total of 75 years from the date of publication. Thus, a book published in 1920 could have been still in copyright in 1976 and its copyright protection therefore would be extended to 1995 (75 years from its date of publication).

1998 Revision of the Copyright Law
The so-called Sonny Bono Copyright Term Extension Act further extended copyright protection to the duration of the author’s life plus seventy years for general copyrights and to ninety-five years for works made for hire and works copyrighted before 1978.

Further Muddying of the Waters
Traditionally, copyright protected new material. The more recent copyright date on the revision of a book actually “protects” only the new material included: the original copyright date was the “protection ” for the original material.

Gerry Stoner

Gerry Stoner

This article is one of several to help you document local history. Other articles will help you convert your interviews, documents, pictures, and artifacts into documentation of your local history that can be shared with your community.