Claiming a copyright

As genealogists, we constantly refer to historical documents. In many cases, those documents many be subject to claims of copyright. It is far easier to claim a copyright to an old document than to actually prove a claim for breach of copyright. It is not uncommon to find references to a copyright for documents that are clearly, legally not subject to any possible copyright. Unfortunately, most discussions of copyright issues are rather more inclusive than exclusive, that is, the discussion emphasizes what is protected by copyright without clearly explaining what is not protected.

As a beginning example, the Online Archive of California, has a digitized image of the San Francisco earthquake available on its Website. The image is entitled, "Looking N. E. from Sansom and Sacramento Sts. after the Earthquake & Great Fire of Apr. 18th to 20th 1906, San Francisco, Cal" The contributor is The Bancroft Library, University of California, Berkeley, CA 94720-6000. The copyright notice is as follows:

Copyright has not been assigned to The Bancroft Library. All requests for permission to publish or quote from manuscripts must be submitted in writing to the Head of Public Services for forwarding. Permission for publication is given on behalf of The Bancroft Library as the owner of the physical items and is not intended to include or imply permission of the copyright holder, which must also be obtained by the reader.
Copyright Owner: University of California Regents
Copyright Contact: The Bancroft Library, University of California, Berkeley, CA 94720

It is obviously implied that the photograph is subject to a "copyright" and that the copyright has an "owner." From the further information given with the photograph it was taken in 1906. So the question is whether or not there is any possible copyright law in the U.S. that would apply to or protect the owner of the photograph?

First of all, where did the photograph come from? Who took the photo? Normally, a copyright is owned by the creator of the work. Quoting from the U.S. Copyright Office Website of the Library of Congress, "Copyright is the right of the author of the work or the author's heirs or assignees, not of the one who only owns or possesses the physical work itself. See Circular 1, Copyright Basics, section “Who Can Claim Copyright.” More importantly, this photograph was taken in 1906, more than 100 years ago. Suffice it to say, that the time periods concerning copyright protection are fairly complicated, but for works published before January 1, 1978, the longest recognized term of copyright is 95 years and most works are protected for far less time periods. For a longer explanation, see the publication, Copyright Basics, from the United States Copyright Office.

So, in fact, there is no legal way that the photograph taken in 1906 could still be subject to copyright. But, there is another question. Can the scanned copy of the photograph published on the California Website be copyrighted? Without going into a huge legal discussion, the answer is no. Making a copy of a work does not create a copyright. That does not mean that the information contained in the Website is not copyrighted, it just means that there is likely no copyright protection for the image itself. So why all the verbiage from the Website about copyright? The clue is in the statement made about the copyright holder. The University of California does not what to be sued, so it is hedging and acknowledging that in some possible universe, some kind of claim might be made so they don't want to be responsible.

From a practical standpoint, it is extremely unlikely that original historical documents themselves, especially those more than 100 years old, can be subject to any possible copyright claim even if they are reproduced on the Internet.

Next time I will discuss fair use and how that might impact historical documents.