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African American Newspapers Forum

Copyright murkiness

I saw this on one of the list that I follow. I don't What do you think?

"I'm not a lawyer, but here are a few (conflicting) points:
I. Copyrighted since 1978
From: http://tinyurl.com/2x9lo
"...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..."

II. Copyrighted before 1978
>From the same web site, the rules are a bit muddy, but it appears that the
copyrights expired after 28 years, unless explicitly renewed. This would
imply that any claimed copyright before 1978 has probably expired, and is in
the public domain. If there are any lawyers reading, maybe they can comment.

III. Do newspapers claim copyright of obituaries?
From:
http://tinyurl.com/3soczxe
"Most newspapers do not claim copyright on _most_ obituaries. Speaking as a
former daily newspaper editor, I can tell you there are several forms of
obituaries in a daily newspaper..." However, it does appear that newspapers
are claiming copyright more and more, probably because ...
From:
http://tinyurl.com/4y2z9q7
"4. So why do newspapers claim a copyright on obituaries. Well
some have obituary editors, and since somewhere employed by
the newspaper "supposedly wrote" the obituary which was
published in "their" newspaper, they feel they have the legal right
to protect it under copyright laws. They also apparently think that
allowing someone to copy obituaries and display them on web
pages, which includes mailing lists, it's a loss of revenue for them.
They normally charge to get copies of articles from old newspapers..."

IV. Can newspapers claim copyright to obituaries?
>From the above: "2. Obituaries are typically written by funeral homes or
family members, and contain "facts". According to US Copyright law,
"facts" can't be copyrighted..."
Also, these days at least, it is common to have to pay to have an obituary
in the paper; can the newspaper copyright what you have paid for?

V. Fair Use
The notion of fair use wonderfully muddies the water still further:
From: http://tinyurl.com/2ghlx
"Section 107 contains a list of the various purposes for which the
reproduction of a particular work may be considered fair, such as criticism,
comment, news reporting, teaching, scholarship, and research. Section 107
also sets out four factors to be considered in determining whether or not a
particular use is fair:

1. The purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to
the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of,
the copyrighted work ..."

One commentary has it, from:
http://tinyurl.com/3o3a2fa

"Forget about who owns the copyright. Forget about getting permission.

According to 17 U.S.C.A. ยง 107, you do not need to get permission if your
use is considered fair use. If you do not need to get permission, then you
don't need to know who to ask for permission.

Is your use fair? I think so, but there is no way to be certain unless you
get sued and a judge makes a determination. The law must be applied on a
case-by-case basis using the four factors and only a judge has the legal
authority to make a definitive determination.

However, here's my determination using the four factors:

1. Character of use. Commercial or educational. Unless you are selling
your digital versions to other libraries, you are clearly noncommercial.
This factor works in your favor.

2. Nature of work. Creative or factual. Obituaries are primarily factual.
This factor works in your favor.

3. Amount used. I think you are using a small percentage of the entire
newspaper. However, an argument could be made that you are using an entire
obituary. Let's be safe and assume this factor works against you.

4. Market value. How old are the obituaries? If you are digitizing
yesterday's paper, then you might be decreasing the market value. However,
I doubt that your local papers are stockpiling back issues to sell to people
in the future. The market for a weekly paper drops sharply at the end of
the week and drops to near zero very fast. The market for a daily paper
shrinks even faster. If you are digitizing current papers, you might want
to wait until the paper is a month or maybe even a year old before
digitizing. I think your use has essentially no effect on the market.

So, I believe that what you are doing is clearly fair use and does not
require permission. However, as I said, only a judge can make a definitive
determination."

The two questions are: has it been legally copyrighted (as opposed to merely
claimed); and even if so, does fair use allow for reposting.

Your policy is certainly safe (aside from some question as to the particular
year); how much concern one should show when republishing obituaries seems
still an open question, or as quoted above, only when you get sued and a
judge makes a determination, will you know for sure."

Messages In This Thread

Copyright murkiness
Re: Copyright murkiness

18 Dec 2002 :: 14 Nov 2008
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