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Wednesday, November 15, 2017

Newspaper Clippings and Copyright: Another Thorny Problem

Newspapers are one of the most valuable resources for genealogical research. Millions upon millions of newspaper pages have been digitized and are available online. Some of the major digital newspaper repositories are fee-based, but many other websites are free. One thorny issue with newspapers is that their content is subject to claims of copyright just like any other publication. It is fairly obvious that most of the genealogical community is entirely unaware of the fact that additionally reproducing a newspaper article may involve the violation of the copyright. Some online family tree programs that allow the addition of digital copies to support the entries in their family trees will refuse to post a full page of a newspaper but will allow the reproduction of an individual article. I thought it would be interesting to explore the parameters of the restrictions that may be imposed by the copyright law on posting copies of articles from newspapers by genealogists.

Before we get to the issue of whether or not a newspaper article is subject to a copyright claim, we must know if such a claim could exist at all, i.e. whether or not the law extends to the publication and the time of the publication of a particular newspaper article. For one of my recent posts on this issue, see "The Copyright Boat Anchor on Creativity and Research."

Another of the fundamental issues here is the idea that facts cannot be copyrighted. In the case of Feist Publications, Inc. v. Rural Telephone Services Co., Inc., 499 US 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 - Supreme Court, 1991, The Supreme Court of the United States stated essentially that while compilations of facts may be subject to copyright protection insofar as the arrangement of the facts reflects creativity, the facts themselves are not subject to protection against copying or distribution, thereby decisively repudiating the "sweat-of-the-brow" theory. If I were to apply this ruling to genealogy, I would say that a pedigree chart was not subject to a claim of copyright unless it was presented in some original or artistic fashion. Even in that case, the information contained in the pedigree would not be subject to a claim of copyright. Also, you are not entitled to a claim of copyright merely because you spent the time and effort to compile the information. See also, Barclays Capital Inc. v. Theflyonthewall. com700 F. Supp. 2d 310 - Dist. Court, SD New York, 2010.

This distinction between the actual facts presented in the publication and the format of the publication is the underlying issue governing claims of copyright for newspapers. Copying an entire page of a newspaper copies their unique arrangement. Copying a single article may not.  This distinction is not trivial. Here is an explanation of the newspapers' position from the Arizona Republic newspaper's website.
Copyright law evolved a great deal during the last quarter of the 20th century, but civil litigation continues in the 21st because the U.S. Code Title 17 allows much subjectivity about what constitutes an outsider’s “fair use” of a newspaper’s work. Generally, if you want the material for a business purpose, consider any newspaper editorial content off-limits for reproducing in whole without written consent. If you plan to do more than briefly excerpt the work, you're in a gray area. You will definitely need a lawyer, because the newspaper almost certainly has attorneys on staff or on retainer.
Further on in the article, it states:
A newspaper might sometimes label a specific important article as, say, “Copyright 2012 by The Arizona Republic.” Actually, all the newspaper’s original material is protected by copyright law, but the copyright credit line makes the article stand out. The AP, as a newspaper collective, has the right to distribute news content from member papers. The copyright designation tells the AP and member newspapers that the originating newspaper must be credited with breaking the news, even if your news entity competes against it and is likewise an AP member.
Fair use is a complicated legal doctrine. There are no clear guidelines as to what is and what is not fair use. Every case is decided on its own merits by the District Courts and ultimately by the U.S. Supreme Court. Because of this case-by-case need to review the application of the fair use doctrine, it is difficult for anyone, even an attorney experienced in copyright law to give more than an opinion in any given situation. Read my post cited above for more information on this subject.

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