Copyright and the post-1963 obit

The rest of the story

So, yesterday The Legal Genealogist reviewed the basic rules on copyrights for obituaries published in American newspapers from the time in which the memory of man runneth not to the contrary up until the end of 1963. And that prompted one reader, “Perplexed in Peoria,” to wonder if somehow time stood still.

“My memory may not be what it used to be,” Perplexed wrote. “But I have a distinct recollection that the sun rose in the east on the morning of January first 1964. And at least a fuzzy recollection that it continued to rise for a good number of mornings after that. Surely obituaries published after 1963 have some copyright issues as well?”

Oh, yeah. Absolutely. Copyright remains an issue for everything published starting in 1964. It’s just that the copyright terms for things published after 1963 are so long that, whenver I’m asked when the copyright on something published then expires, my usual response is: “Not in my lifetime.”

Recognizing, however, that some of you whippersnappers out there are going to outlive me, let’s review the copyright basics for obituaries published after 1963.

Now before we do this, let me emphasize that all of the factors that cut in favor of being able to use a copyrighted obituary that we went over yesterday1 apply no matter when the obituary was published. If you have permission, you have permission, whether it’s permission for a copyrighted article from 1962 or or one from 2012. If your use is a fair use,2 then it’s still a fair use no matter whether the newspaper was published 50 years ago or yesterday.

Okay… on to the rules for the rest of the story.

Published 1964 through 1977 with notice: If the obituary was published in a newspaper that included a copyright notice somewhere in its pages — and remember: it will be a very rare case where the newspaper didn’t include the notice, since it was required for many many years by copyright law — then for an article or photograph or obituary published during that time period, the copyright will expire 95 years after it was published.3

So, since copyrights expire on the 31st of December of the calendar year in which the term ends,4 for an obituary published on Perplexed’s bright sunny 1 January 1964, the copyright won’t expire until 31 December 2059. And for an obit published 31 December 1977, the copyright won’t expire until 31 December 2072. Um… math isn’t my strong point, but I do believe that’s 60 years from now. And without some significant breakthrough in medical science, I somehow don’t expect to be around at that point.

Written and published 1978 to 1 March 1989 with notice: If the obituary you’re interested in was written and published in a newspaper that included a copyright notice sometime during this period, then if the copyright owner is an individual author (remember what we said yesterday about the possibility that a family member actually wrote the obit), the copyright lasts for 70 years.5 But if the obit was written as a work of corporate authorship — and an article by a journalist working for a newspaper falls into that definition6 — then the copyright lasts for the shorter of 95 years from publication or 120 years from when it was written.7

So for an obit authored by the newspaper staff and published on 1 January 1978, the copyright is going to last until 31 December 2073. And for a similar obit published 28 February 1989, the copyright lasts until 31 December 2084. If the obit was written, say, in 1970 for a famous person, but the person didn’t die until 1975, you’d use the publication date plus 95 years because that’d be shorter than 120 years after it was written.

Written and published after 1 March 1989: If the obituary you want to use was written and published anytime after 1 March 1989, then the rule is simply 70 years after the death of an individual author or, for a corporate authored work, 95 years from publication or 120 years from when it was written. Copyright protection became automatic at that point, and authors or publishers didn’t have to put a copyright notice in the document to get protection.8

So for an obit published in, say, 2000, the earliest expiration is 2070 if the copyright is held by an individual author and if the newspaper wrote the obit at the time, then it wouldn’t expire until 2095.

There are a couple of wrinkles for things that were created — written — before 1978 but were published later. They don’t tend to affect things that are as time-related as obituaries, but it’s at least theoretically possible. For something created before 1978 and published before 1 March 1989, as long as it had a copyright notice, it gets the same 70 – 95 – 120 years of protection or until 31 December 2047, whichever is longer.9 Anything created before 1978 and published between 1 March 1989 and 2002, it’s the same period but no notice was necessary — copyright protection would be automatic. And for anything published after 2002, no matter when it was created, it’s the 70 – 95 – 120 years of protection, and no notice is required.

So… see what I mean? “Not in my lifetime.”


 
SOURCES

  1. Judy G. Russell, “Copyright and the obit,” The Legal Genealogist, posted 12 Sep 2012 (http://www.legalgenealogist.com/blog : accessed 13 Sep 2012).
  2. See generally “Fair Use,” U.S. Copyright Office (http://www.copyright.gov : accessed 13 Sep 2012).
  3. U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at p. 1 (http://www.copyright.gov : accessed 11 Sep 2012).
  4. Ibid., at p. 3.
  5. Ibid., at p. 1.
  6. U.S. Copyright Office, Circular 9: Works Made for Hire Under the 1976 Copyright Act, PDF version at p. 2 (http://www.copyright.gov : accessed 13 Sep 2012).
  7. Circular 15a: Duration of Copyright, PDF version at p. 1.
  8. Ibid. See also See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 11 Sep 2012).
  9. Ibid.
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3 Responses to Copyright and the post-1963 obit

  1. Pingback: Follow Friday: Georgia Archives Petition, Certification Posts, Legal Insights « finding forgotten stories

  2. Robert Stewart says:

    You may have covered this elsewhere, but how does this apply to websites like Find-A-Grave and similar sites? I see a lot of post-1963/post-1989 obits that are posted verbatim on Find-A-Grave; I also see a lot of photos that are new enough to still be under copyright protection. Some include a reference to the newspaper, and maybe a date published and the posters have said they believe adding the work cited reference makes it okay to post the whole thing. What if the obit includes a photo: does the photo potentially have a different copyright end date than the obit or does it being part of the obit link its copyright end date to the obit? I have several people submit post-1963, and post-1989, obits to me asking I add them to memorials that I maintain. These requests tend to be verbatim and are often from people that didn’t write the obit, not even direct descendants of the original obit writers.

    I have also received requests to add photos that are post-1923, usually press release or obit photos. Aren’t they covered by whichever applicable copyright end date applies. I don’t want to add something that is in violation of copyright since Find-A-Grave is very selective in enforcement of copyright violations that are brought to its attention. For some of its high numbers people and Find-A-Grave admins, they can post obits and photos that are clearly in violation of copyright, but many other people are held to the stated site’s rules about not posting copyrighted items.

    • Judy G. Russell says:

      Every single item has its own copyright. A photograph taken by person A has the copyright term of person A’s life plus 70 years, even if it is then published with an obituary. The obituary would have a different copyright term, measured by the life of the creator or the date of publication. Your safest bet with any item you upload is to obtain written assurance that the person submitting it to you owns the copyright to every piece — the obit and the photo. And you are absolutely right that giving credit does NOT mean there is no copyright violation. People confuse the concept of plagiarism (taking someone else’s work without giving credit and passing it off as their own) with copyright, where you can credit the author all you want and still get sued.

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