That copyright notice

It sometimes matters if it’s missing

The question came from a library in Kentucky that’s interested in digitizing copies of a local newspaper.

The library staff was well aware that there were no copyright issues at all with issues of the newspaper published before 1923: in the United States, all copyright protection has expired on anything legally published before 1923, and that material is all in the public domain.¹

So the library folks knew that they could go ahead with all of the very oldest newspapers, getting them ready to go online.

It was the newer newspapers that posed the issue. When it came to issues published in 1923 and 1924 and 1925, the library staff noticed something that was, well, a bit strange.

They told The Legal Genealogist:

The newspaper does not appear to have copyrighted its content in the 1930 newspapers we’ve been spot-checking. We have looked for ANY copyright claims from the digitized copyright catalogs, and are basically coming up with nothing. We checked the newspaper name, the company name, owner’s name, editor’s name, etc. We have found a few articles written non-locally that do have explicit copyright statements for the article. So on the surface, it appears that the newspaper didn’t copyright itself, which we just can’t believe.

 

… There is NO (c), Copyright, or Copr anywhere, as the Copyright office’s Circular 3 “Copyright Notice” requires before 1978.

 

Is it possible that a major newspaper is in the public domain out of failure to register copyright?

As incredible as it may seem, the answer appears to be… yep. Sure is possible. And according to one of the nation’s leading experts on copyright, not just possible but even likely.

I ran this question past Peter B. Hirtle, an Affiliate Fellow of the Berkman Center for Internet and Society at Harvard University. Until his retirement from Cornell in 2015, he served as Senior Policy Advisor to the Cornell University Library with a special mandate to address intellectual property issues, and he still prepares Cornell’s annual Copyright Term and the Public Domain in the United States chart, updated each year as of 1 January.²

Peter’s an archivist by training with an MA in History from Johns Hopkins and an MLS with a concentration in archival science from the University of Maryland, a Fellow and Past President of the Society of American Archivists and a member of its Working Group on Intellectual Property, a member of the Commission on Preservation and Access/Research Library Group’s Task Force on Digital Archiving and the Copyright Office’s Section 108 Study Group, and a contributing author to the LibraryLaw.com blog.³

His take on this, which is republished here with his permission:

You have hit on one of the questions that I get asked a lot. In my opinion, most newspapers published before 1964 are in the public domain. First, many newspapers were published without a copyright notice. The 1909 Act specified that a copyright notice had to appear in each number of a newspaper. The location of the notice was also important: it had to be “either upon the title page or upon the first page of text of each separate number or under the title heading.” See §20, Copyright Act of 1909. In OA Business Publications, Inc. v. Davidson Publishing Co., 334 F.2d 432 (7th Cir. 1964), the court found that including a copyright notice on the 3rd page of a paper did not meet this requirement and that therefore copyright was forfeited.

 

Furthermore, even if the notice was in the right place, the copyright would have had to have been renewed. In my investigations, I have found that the NY Times and the Wall Street Journal regularly renewed their copyrights, but few other papers bothered. This makes sense. After all, a day-old newspaper is only good for wrapping fish – why would one need to worry about copyright?⁴

Now he went on to caution that “there is likely to be … 3rd party content in the paper that could be … problematic. Syndicated cartoons and other features are one example; free-lance photographs that were purchased for one-time use are another.” Those items, to be protected under the law, should have been published with their own copyright notices — and the library staff has noted cases where that happened.⁵

In practice, he noted that even if it was copyrighted: “one could make a strong fair use argument that the reason why the … public library was putting this material online is for a radically different purpose than for why it was initially created and published. (Of course, as with any fair use argument, it is best to check with one’s own legal counsel as well as determine the risk tolerance of one’s organization.)”⁶

And Peter offered one more source for reviewing this issue: “I would recommend a blog post by my friend John Mark Ockerbloom called “Mid-20th century newspapers: Minding the copyrights.” John is a computer scientist and not a lawyer, and I might quibble with some of his analysis, but overall he does an excellent job of laying out some of the potential issues.”⁷

Of course, there is one more thing implicit in this analysis: anyone considering this may very well need to check and see if there was a copyright registered and renewed with the Copyright Office. That can be done by using the Catalog of Copyright Entries, published in printed format from 1891 through 1978 and on microfiche from 1979 through 1982. After 1982, and for entries from 1978 to the present, all information about copyright registrations is available online.⁸

Now remember: this question of the missing copyright notice only applies to older publications. After 1989, the copyright notice was no longer required (copyright protection is automatic, even without a copyright notice), and between 1978 and 1989 it was possible to register a copyright even if the notice wasn’t included.⁹

But for those older publications, publishing without the proper copyright notice may very well mean that they are free of copyright restrictions — and we can look forward to seeing them online, thanks to that Kentucky library.

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