It may seem as though you wouldn’t have to worry about copyright issues when you are creating family history projects. If you have original diaries, photos, and letters in your possession, you might also think that you own the rights to them, especially if they are old. However, even though you may own the physical materials, the author of the documents retains their legal copyright, sometimes for much longer than you would assume. For example, I may have a diary my mother wrote, but she still retains the copyright of its contents. If I wanted to publish this diary, in whole or in part, I would need to ask permission first.
I recently received a call from a potential client who wanted to hire me to digitize, process, and create a database for approximately one million letters in support of a documentary project. When I asked who owned the copyright of the letters, my client said that the recipient’s son did—because he had physical possession of them. I advised them that they would have to seek the permission of the people who wrote the letters before digitizing and publishing them online because the writers still owned copyright over the documents. Our conversation reminded me that copyright is complicated, but it’s important to understand before starting any project using primary sources.
Even if you don’t expect to create such an ambitious project, family historians should learn fundamental copyright laws if they plan to publish or create histories from their family archives. Here’s a summary of current United States copyright law, based on information from the Copyright Advisory Network of the American Library Association’s Office for Information Technology Policy:
A document may be in the public domain and thus free from copyright restrictions if the item was:
first published before 1923
created after 1922 and before 1978 and published without a © notice
created after 1922 and before 1964, published with a © notice, but not renewed after 28 years
published after 1977 and before 1989 without a © notice and without subsequent registration
A document will be copyrighted for 95 years after publication if the item was:
created after 1922 and before 1964, published with a © notice and registered after 28 years
created after 1963 and before 1978 and published with a © notice
The copyright belongs to the author or the author’s heirs for the author’s lifetime plus 70 years, if the item was:
created (unpublished) after 1977 and was first published before 2003
published after 1977 and before 1989 without a © notice but registered within 5 years, or published with a © notice
published in 1989 or after with or without a © notice
For unpublished works, it’s best to err on the side the copyright being held during the author’s lifetime plus 70 years.
You are the sole legal heir if you were named such in the will or legally recognized as such during the legal disposal of the deceased’s property. You share the copyright if you shared the role as heir.
If you share copyright with another heir or if you do not own the copyright at all, you need permission to published from the rightful owner. Always get the permission for use in writing.
If the document belongs to or is housed in a library, archives, or museum, the repository can control your access to it but does not own the copyright unless the author transferred it to the repository. To publish, you would need the permission of the author or his/her heirs and the authorization of the repository.
Fair use laws allow you to quote from works not in the public domain without permission. You can quote brief passages from sources in a way that enhances the appreciation of the work without infringing on its integrity. If you’ve ever written a paper for school, you should be familiar with fair use practices to avoid plagiarism. Consult the Fair Use Evaluator to determine the “fairness” of a use.
Copyright laws change as cases reach court decisions. If you are beginning a family history project where you will need to get copyright permission, check the latest sources available. The American Library Association offers accessible, up-to-date information to consult.
When you are in doubt or the copyright is complex, always seek the advice of a copyright attorney.
When creating your family archives, what are your copyright concerns? Contact me at firstname.lastname@example.org.
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