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

Sunday, August 2, 2015

What Constitutes Publication in a Copyright Case -- Part Two

Two of the least understood and usually badly confused areas of copyright law are the issue of whether or not a work has been published and the subsequent fair use doctrine. Publication and fair use are called "doctrines" because the bulk of the law comes from court decisions. There is very little statutory law defining either what is a publication of a work or what is fair use of a work. In my first installment of this series, I started to write about the issue of publication in the area of copyright law. This post continues that series.

All my disclaimers in the previous post still apply. I would note that over the past couple of years, there have been a number of online references from genealogy bloggers about the issues involved in deciding the copyright protection of photographs, documents, letters, journals or whatever inherited from some ancestor. My perception of these posts is that in almost all cases, they give an opinion without explaining the real legal issues involved. There are both practical and legal considerations when approaching the issues raised in publishing a work (i.e. photograph, journal, diary, letter etc.) created by an ancestor or anyone else in the past. That is the reason for this series and will likely be the basis for a series on fair use.

If you find yourself in a situation that involves a copyright issue or any other legal issue, I would suggest seeking legal advice from a competent attorney who practices in the are of your concern. Do not rely on either self-help websites or any general discussions about the law (such as this series of posts) in deciding the merits of any specific legal issue.

The major problem in writing a general discourse on the law, is that the application of the law is fact specific. Every case or controversy that comes forward is unique. I can speak of generalities all day and never answer one specific question. I can show you how the law works, but I cannot predict, nor can anyone else, exactly what will happen if any particular fact situation and the legal issues pertaining to that specific situation were to be decided by a court action. It is not unusual, as I have learned over and over again, for a judge to disregard precedent and decide to change the way the law is applied in a specific case. It is also not unusual, as shown by some of the more prominent recent decisions of the U.S. Supreme Court, for the highest court in the land to decide to change the law. In this way, law is often less predictable than the weather. But as President Harry Truman is reported to have said, "If you can't stand the heat, get out of the kitchen."

Before we get too much further into this subject, it is important to understand the term, "work." In copyright law, the word "work" is used in its broadest sense. I am back to the Copyright Law of the United States and Related Laws Contained in Title 17 of the Unites States Code aka Circular 92. Title 17 of the USC (United States Code) has a lot to say about various "works" but never actually defines the word. The closest idea about the definition of a work is contained in Section 102 as follows:
§102 · Subject matter of copyright: 
In general 
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
In short, the term "work" is used collectively to refer to anything original that is "fixed in any tangible medium of expression." The word "tangible" has been extended to computer programs and online images and writing. Sub-section (b) expresses the limitations of what is not included as a work. As you can guess, this definition give wide latitude to those who want to argue about the law and its application to any given fact situation.

Let me start with a quote from a journal article entitled, "Copyright Publication: An Empirical Study" by Deborah R. Gerhardt an Assistant Professor of Law at the University of North Carolina School of Law published in the Notre Dame Law Review, Vol 87, No. 1, 2011.
Notwithstanding the dispositive importance of “publication,” the copyright meaning of the term is not clear, and can be difficult to pinpoint. Especially in cases involving non-textual works or original documents, the moment of publication is not often apparent. Another source of ambiguity is that “publication” has a specific meaning in copyright jurisprudence that can be different from a lay understanding of the term. The ambiguous nature of “publication” in copyright law can lead to results that appear to defy logic. A unique sculpture or painting displayed in an art gallery may be found to be “published,” while Martin Luther King’s “I Have a Dream Speech,” though broadcast internationally and reprinted in news media, was found to be “unpublished.” [See footnotes in the original].
Gerhardt, Deborah R., Copyright Publication: An Empirical Study (December 1, 2011). Notre Dame Law Review, Vol. 87, No. 1, 2011. Available at SSRN:,
This 70 page article is a valuable starting point for understanding the ambiguous and contradictory court decisions on publication as it applies to the acquisition of copyright protection. I suggest that anyone who wishes to obtain any insight into the issue of publication, read the entire article. In addition the author has added extensive footnotes with numerous valuable sources.

Beginning with the Copyright Act of 1976, all works were and are protected from the date of creation. Therefore, with regard to works created after the effective date of the Act, January 1, 1978, the issue of when publication occurred is moot. Additionally, with the adoption of the Berne Convention by the United States on March 1, 1989, all works subject to copyright in the United States became automatically protected upon creation whether or not a notice of copyright claim was included on or in the work. Here is a quote from the U.S. Copyright Office regarding International Copyright protection:
There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the world. Protection against unauthorized use in a particular country depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions. There are two principal international copyright conventions, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the Universal Copyright Convention (UCC). 
The United States became a member of the Berne Convention on March 1, 1989. It has been a member of the UCC since September 16, 1955. Generally, the works of an author who is a national or domiciliary of a country that is a member of these treaties or works first published in a member country or published within 30 days of first publication in a Berne Convention country can claim protection under the treaties. There are no formal requirements in the Berne Convention. Under the UCC, any formality in a national law can be satisfied by the use of a notice of copyright in the form and position specified in the UCC. A UCC notice should consist of the symbol © (C in a circle) accompanied by the year of first publication and the name of the copyright proprietor (example: © 2006 John Doe). This notice must be placed in such a manner and location as to give reasonable notice of the claim to copyright. Since the Berne Convention prohibits formal requirements that affect the “exercise and enjoyment” of the copyright, the United States changed its law on March 1, 1989, to make the use of a copyright notice optional. U.S. law, however, still provides certain advantages for use of a copyright notice; for example, the use of a copyright notice can defeat a defense of “innocent infringement.”
For genealogists, these changes only make the determination of copyright coverage for older works (documents, photos etc.) that much more difficult. For all works created before 1978, we still have to be concerned with the issue of publication. This determination can only be made on a one-by-one basis. There is no general rule that will apply in all or even most of the cases.

As I have mentioned several times in the past, a good place to start any inquiry is the Cornell University, "Copyright Term and Public Domain in the United States 1 January 2015," chart. However, with respect to the issue of publication, the Chart is only a starting point. The extreme position, and apparently that advocated by some genealogists, is that everything is copy protected and the risk to use any old photo or document is too great. Of course, this position would effectively paralyze genealogical research. I suggest a more moderate view.

Before getting too upset with the whole process, look closely at the Cornell Chart. Any unpublished work, under any circumstances or eventualities, will be out-of-copyright and in the public domain if the author died before 1945 and the work was created before 1895. If you are still concerned, I suggest following the footnoted requirement that:
Presumption as to the author's death requires a certified report from the Copyright Office that its records disclose nothing to indicate that the author of the work is living or died less than seventy years before.
The requirement is further explained by the Copyright Office as follows in Circular 92:
(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire. — In the case of 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. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person's interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation.
The Circular goes on to explain:
(e) Presumption as to Author's Death. — After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefit of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title.
What does such a report cost? Here is the schedule as of the date of this post:
Searches of Records
Estimate of search fee (credited to search fee)$200
Search report (per hour, 2 hour minimum)$200
Expedited report (surcharge per hour for first two hours plus $200 per hour base fee)$300
Each additional hour in addition to the charge for the first two hours (three-hour search is $200 + $200 + $300 + $300 + $500)$500
Certification of search report (per hour)$200
Looks like a classic situation where the genealogist needs to do some research into the date of death of the author (photographer etc.). OK, so let's suppose you find an old photograph. When was the photo taken? See, more research. Who made the photograph? Once again, more research. Realistically, let's suppose that you have a family photo, taken in the 1920s. Is there a copyright issue? Well, yes, but the question is more a practical one than a legal one. Let's further suppose that the photo was taken by a family member. Who "owns" the copyright? Was the photo published? From all I have written, I would suggest that neither of these questions can be determined definitively. So there is a risk that some one will make a copyright claim. You need to evaluate the risk and decide what you are going to do with the photo.

There is no certainty and anyone who tells you otherwise is misinformed. Before 1989, remember that a notice of copyright on the work was necessary for protection. But, the publication issue still exists.

For the previous installment of this series, see

1 comment:

  1. Nice in-depth article James. In the coming months, look out for an article about British copyright from me. I will be writing about an unusual case that doesn't easily fall into the descriptions here, and the case eventually broke one of my own ancestors.