RootsTech 2014


Some people eat, sleep and chew gum, I do genealogy and write...

Wednesday, April 3, 2013

Even more about copyright

In response to my post about "Can you copyright an old photograph or journal?" I received the following comment from Rob:
As a lawyer you have made a fundamental mistake in this blog piece that really needs rectifying. As the US like the UK signed the Berne Convention on copyright which extended the original length of copyright of 50 years after the authors death to 75 years therefore the cut off period is not 1923 as you stated. This is also a common misheld belief by lawyers who have no experience of copyright laws. For example if a photographer took a picture when he was 10 years old in 1890 and died at 80 which would make 1960 then the copyright would last until 2035. 
The second error you make is in the mentioning of blanket copyright on websites and the likes. Whilst the suthor may not hold copyright of the works within their website they do hold a copyright based on the layout so therefore you couldnt lift my website and put it on your site without being in breach of copyright. 
I await your response
 I believe that the statement Rob is referring to is the following:
In the U.S. any possible claim of copyright cannot exist for a work created in the 1800s. The cut off year, as a rule of thumb, is presently often considered to be about 1923, but there are arguments for extending some types of claims further back for works that were written but not discovered or published before that date. Be aware that copyrights in other countries may extend much further back in time and that current law in the U.S. may honor those foreign claims even when the work might be considered in the public domain in the U.S.
Rob is right as to the present application of the Berne Convention in the United States, but he is wrong as to the retroactive application in the United States. Here is the statement from the U.S. Copyright Office:
The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3of the Copyright Act (title 17 of the United States Code). More information on the term of copyright can be found inCircular 15aDuration of Copyright, and Circular 1Copyright Basics 
Apparently Rob is confusing the application of the law after 1978 with its application before that date. The rule in the U.S. is distinctly different than that in the U.K. As I said in my previous post:
Once again, I have to make the same observation I have made in the past. Every country has its own version of copyright protection. You have to examine the laws of your own country carefully, to determine whether or not any particular work can be considered to be in the public domain and free of copyright claims. 
The entire Copyright Law is available on the U.S. Copyright Office website.  Chapter 3 of the Act is fairly difficult to understand but Cornell University has a pretty good summary called "Copyright Term and the Public Domain in the United States" dated 1 January 2013. If you refer to the Cornell document, you will see that with a few exceptions, as I noted in my previous post, works first published  in the U.S. or registered before 1923 have no copyright protection and are in the public domain. The only exceptions, as noted in the Cornell document are for unpublished works and the protection extends  only back to 1893. So for those few years for unpublished works my comment was not quite accurate. But you will note that I referred specifically to written but not discovered works (i.e. unpublished) as being different than the normal published variety.

So, I would beg to disagree with Rob as to his conclusion about my first statements.

What about the website issue? I don't believe I mentioned the application of copyright law to websites in general in any recent posts. Perhaps Rob misread my comment about apply a blanket copyright to content that clearly was not subject to a claim of copyright. I certainly agree that the format of a website per se, can be subject to a claim of copyright, but at the same time some or all the content may not be so protected. I do not believe I was in error in what I said. My objection goes to websites that lead the user to believe that the public domain content they host is covered by their blanket copyright claim at the bottom of their pages.

I certainly appreciate Rob's comments and welcome the chance to clarify the issues.


  1. Thanks for linking to my copyright duration chart. But you are incorrect when you state that protection for unpublished works "extends only back to 1893." That is true for certain classes of anonymous works, but for a work with an author, protection extends until 70 years after the death of that author. So an unpublished letter written in 1865 by Albert Woodson, the last surviving Civil War veteran, would still be protected by copyright because he did not die until 1956.

    And as I note in my article on "When Is 1923 Going to Arrive and Other Complications of the U.S. Public Domain" at, it is also important to determine whether an older document was published prior to 2004. I speculate that the the oldest work still protected by copyright in the U.S. is likely a letter from John Adams to Nathan Webb written on Sept. 1, 1755.

    1. Thanks for the clarification. But you must admit that the number of documents that fall into the category of unpublished works by authors is likely quite small especially since the author would have had to die after 1943.

    2. Perhaps a little more clarification. Unpublished works fall into a separate category depending on whether the author is known or unknown. I should have been more specific about unpublished works. Looks like another blog post.