Can you copyright an old photograph or journal?

I frequently encounter both institutional and individual claims to a "copyright" for an old photograph or document, frequently a diary or journal. I mentioned this problem in a recent post with the opinion that imposing a copyright on such old documents is not possible, but I felt that more explanation was warranted. In the interests of avoiding controversy however, I will avoid listing some of the more blatantly unsupportable claims.

Sometimes the claim to copyright is ambiguous, where the online entity includes a blanket copyright notice at the botton of every page of their website, without discrimination for the content shown on the site. Sometimes, digging into the Policies and Procedures of the entity discloses a disclaimer that they really aren't claiming a copyright interest in any of the old documents but the determination of which documents they do claim are covered by copyright is left up to the user.

Individuals who have old photographs or documents in their possession, sometimes feel possessive and claim ownership of the copyright when it is clear that they did not take the photographs or write the documents and have no legal claim to the ownership of the copyright.

The issue is what is meant by the term "old" and how old does a work have to be to be totally free of any copyright claims? Are there any other claims to ownership that lie outside of the realm of copyright? Although theoretically, there may be such claims, I have yet to encounter such an argument although I am aware that contract, privacy and other issues have been raised concerning old documents.

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. In case you wonder, yes, as an attorney, I have fielded demands made by copyright holders against my clients in years past. It is not a commonly made claim against individuals but has happened. In one prominent case, my client contested the claim but had to concede when the cost of the litigation became unbearable. As a side note, if you become involved in an intellectual property dispute (a euphemism for lawsuits over trademark and copyright) be sure and find an attorney who has actually litigated a case or two rather than one who simply purports to take intellectual property cases.

OK back to claims of copyright on old works. 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.

As I have said previously, you cannot obtain a copyright in a work, not your own, by simply putting a copyright claim on the work in the form of a notice of claim or copyright symbol. In addition facts and ideas cannot be copyrighted. What is and what is not covered by copyright law is really determined on a case by case basis, so most claims, as I experienced with my clients, are resolved without litigation because of the huge expense in taking a copyright case to court. The balance of power in these negotiations is definitely on the side of the institution with resources, rather than the individual.

Many genealogists and certainly those involved in blogging, become obsessively possessive of their writing and research. Copyright was originally intended to protect original authors from economic loss due to unauthorized copying of their work. This is still the thrust of copyright, but extensions of the law have ventured into areas that bear little relationship to economics. To some extent, copyright claims have become a burden on society in general, preventing practical and reasonable copying when the author or originator had absolutely no expectation of profit or gain from ownership of the work. Genealogy is a very minor battlefield in these types of issues.

Copyright laws date from a time when writing and publishing were expensive and labor intensive. By and large, the laws have not kept up with technology where anything I publish on the Web can be almost instantly copied around the world and where determination of the originality of a work can be nearly impossible.

Can you claim a copyright to an old photograph or document? I repeat the question in the title and answer, it depends. Of course anyone can make such a claim, but the likelihood of ultimately prevailing, if the document was produced in the United States before 1900, is very close to zero.