Is That Book Still Under Copyright?

Genealogists use old books more often than most other people. Indeed, we also want to take excerpts from an old book and publish those excerpts as part of our own family’s genealogy. However, is that legal? Does the book still enjoy copyright protection?

Under U.S. laws, the answer is simple for books published prior to 1924: the book is now in the public domain (not copyrighted). For books, films, and other works published in 1924 or later, however, the question quickly becomes complicated.

Anything published in 1924 will remain under copyright until the year 2020, anything published in 1925 will remain under copyright until the year 2021, and so on.

The U.S. Constitution gives Congress the right to bestow exclusive rights to a creator for “limited times.” Unfortunately, the words “limited times” were not precisely defined in the Constitution and politicians since then have specified longer and longer periods of copyright protection.

In the first copyright act in 1790, copyright protection was limited to 14 years, with the option to apply for an automatically granted 14-year renewal. By 1909, copyright protection was increased to 28 years, with the option to apply for an automatically granted 28 year renewal.

There was a further complication: copyrights back then had to be renewed, and often the rightsholder wouldn’t bother filing the paperwork. If they did, the paperwork could be lost. There is no single computer database listing the copyright dates of every publication. Indeed, there isn’t even a single office or other location where anyone can look at paper records listing copyright expiration dates. In short, you cannot easily find the copyright expiration date of any of the older publications.

The cost of figuring out who owns the rights to a given book can end up being greater than the market value of the book itself.

In 1976, the U.S. copyright laws were radically changed to agree with the Berne Convention, an international agreement originally signed in 1886. All new books were switched to an expiration date of the author’s life plus 50 years. In 1998, an act named for Sonny Bono, who was recently deceased and always was a defender of Hollywood’s expansive rights, bumped that to 70 years. These new restrictions applied only to books published on or after the date of the new laws. Older books were not impacted.

So the originally question was, “Is That Book Still Under Copyright?” The only accurate answer for books published in 1924 or later is: “Maybe.”

13 Comments

A lot of books registered more than 28 years before Berne, were not renewed. Need to check with LOC’s Copyright registry to determine if that book was renewed or not.

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My great aunt published a book on one of our family lines. She put on an inside page that it is under comyright, but she told me it really wasn’t. She nust put it in to make people think twice about stealing her material.

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    Actually it was under copyright. She had it as soon as she wrote it. She might not have registered it with the copyright office in Washington but I think that means she can’t defend the copyright in court. Unless she put it in the public domain, or the copyright expired (when did she write it?) then it might still be under copyright.

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I understand the need for protecting the author’s years of research and/or writing skill with a Copyright. Fair game. However, I cannot for the life of me understand a 3rd party having a Copyright on photos of my children. Are there different laws covering different Copyrights?
Years ago I paid a photographer to photograph my children. I provided the subject and the setting. The photos were taken, presented and purchased. YEARS later I took one of those photos to a local store to have a copy made and because it was stamped on the back, Copyright, they wouldn’t copy it.
I found that very BIZZARE! MY children’s photo was Copyright by a 3rd party.

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    At least in the United States, yes, its under copyright. You own it; you paid for it, it was a work under hire, therefore you own the copyright. If you had not paid for it the photographer would own it.

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In the UK you can use limited extracts under the fair use clause

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Does the copyright law apply equally to obits from newspapers?

Mary Lou

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    Of course it applies equally to obituaries from newspapers. They are literary works in exactly the same way as any other written material.
    As for those photographs unless you have an explicit copyright assignment agreement with the photographer then again of course the photograph copyright belongs to the photographer. The photographer is the author of the photographs. For the vast majority of copyrighted works the author is the default holder of the copyright.

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Re: David Newton’s post – I’m not understanding the logic of what you’re saying. We had a contract the terms of which were fulfilled. You seem to be indicating that a contract goes on into infinity even though the terms of such have been long ago fulfilled.

Regarding obituaries – I wrote an obituary for a family member, presented to the newspaper, paid for it to be published, AND THE NEWSPAPER PUT A COPYRIGHT ON IT. The newspaper Copyright material that wasn’t penned by anyone in their employ. Can you explain that?

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    What was the contract for? For the photographer to take a photograph. Presumably the contract said nothing about the intellectual property rights of that photograph once it was taken. If the contract said nothing about the ownership of the intellectual property rights then the defaults of the law are reverted to. That means that the photographer is first owner of the copyright as author of the photograph. Just because you don’t understand the logic of what I said does not make what I said incorrect.

    As for the newspaper, that’s easy. By submitting the obituary to them you would have been agreeing to their standard terms and conditions. That would have included giving them a licence to publish the obituary you wrote. Then there is also the overall copyright of the newspaper as a collection of articles. So yes I can explain it.

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I stand to be corrected but in the UK if you commission (ask) the photographer to take photographs of whatever then copyright belong to you. If the photographer asks or offers to take photographs the copyright is his/hers. The use to which those photographs are put is another issue.

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    Erm you need to be corrected. Commissioning a photograph is irrelevant to who is the first owner of copyright unless the contract says otherwise. To quote section of the Copyright, Designs and Patents Act 1988:

    “11 First ownership of copyright.

    (1)The author of a work is the first owner of any copyright in it, subject to the following provisions.

    (2)Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

    (3)This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations).”

    Then to quote section 9 of the same legislation:

    “9 Authorship of work.

    (1)In this Part “author”, in relation to a work, means the person who creates it.

    (2)That person shall be taken to be—

    ( aa )in the case of a sound recording, the producer;

    ( ab )in the case of a film, the producer and the principal director;

    (b)in the case of a broadcast, the person making the broadcast (see section 6(3)) or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast;

    (c) […]

    (d)in the case of the typographical arrangement of a published edition, the publisher.

    (3)In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

    (4)For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.

    (5)For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.”

    So like I said for artistic works the first owner of copyright is the author of the work unless they are an employee of an organisation or the government gets involved. Author is defined as the person who creates the work. In other words the photographer.

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A related issue is spurious claims of copyright.

The worst offenders are the genealogy web sites that (appear to) claim copyright to everything on the site, whether they were the author or not. Rights were clearer back in the days of paper. A county history was the property of the publisher and the copyright usually had expired. The all-name index was the property of the indexer or genealogical society, with its own copyright based on the publication date of the index. The web sites, on the other hand, jumble together rights to the original text, the index to the text, and the layout of the web page displaying these.

And then there are the firms who reprint old maps from the public domain. I buy the maps sometimes, but I’m paying the publisher for setting up high-quality printing of large maps on good paper, not for content that’s in the public domain.

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