Newspapers.com
Reader Bruce Massof couldn’t understand it.
He’s a user of the Newspapers.com website and has printed or downloaded articles from newspapers published before 1923.
He knows darned good and well that 1923 is a key year in U.S. copyright law: anything legally published in the United States before 1923 is officially once and for all forever and ever amen out of copyright.1
And yet each of the pieces Bruce has printed or downloaded — even those published well before 1923 — comes with a notice at the bottom: “Copyright © 2018 Newspapers.com. All Rights Reserved.”
Yup. Sure does. The Legal Genealogist tested it this morning with an 1894 article:
So… what’s this all about if, in fact, anything legally published in the United States before 1923 is officially once and for all forever and ever amen out of copyright?
There are three things at play here: (1) the fact that not every newspaper on the Newspapers.com website is out of copyright; (2) the fact that there is one kind of copyright that does apply even to a page that includes an out-of-copyright article; and (3) the terms of use/terms of service of the Newspapers.com website itself.
First off, remember that many websites that offer collections of newspapers span a number of years. On Newspapers.com, for example, you can access some newspapers from the 1700s like the Pennsylvania Gazette and, with a Publisher Extra subscription, some newspapers that are being published even today.
And while those editions of the Pennsylvania Gazette are out of copyright, that Chicago Tribune article from 2018 is most definitely still covered by copyright — and will be for a very long time. For items published today as a work of corporate authorship, such as a newspaper, copyright lasts for 95 years from the date of publication.2
Now I suppose it would be possible to set things up within the Newspapers.com system to put the copyright notice on individual articles printed or downloaded when the newspaper is or may be still copyright-protected, and leave it off for the older ones, but that would be a programming challenge and expensive. So you know that the option that’ll be chosen instead is the cheaper easier one: to simply include the copyright notice on everything.
That’s one reason why the notice is on that 1894 clearly-out-of-copyright article.
But the second factor comes into play here too: Newspapers.com does actually have a copyright, called a compilation copyright, that protects the website as a whole. As one of the Ancestry family of websites, the terms of use state clearly that: “Each of the Services is protected by copyright as a collective work or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws.”3
A compilation copyright for a website like this one covers “the selection, coordination or arrangement of … ‘preexisting works’—works that were previously published, previously registered, or in the public domain.”4 The individual items don’t get a copyright, but the work as a whole does. (So don’t go trying to copy the entire website and publish it on your own server.)
And that compilation copyright may also explain why the notice is on that 1894 clearly-out-of-copyright article. Not to claim that this individual piece is copyrighted, but to remind the user of the compilation copyright, which in turn ought to remind us about that third issue we all need to consider: the website’s terms of use or terms of service.
Those terms, remember, are the limits somebody who owns something we want to see or copy or use puts on whether or not he’ll let us see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and somebody can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — we and whoever owns the thing we want to see or copy or use reach a deal.5
The terms and conditions for Newspapers.com — part of uniform terms for all Ancestry websites — are fairly liberal but not unlimited:
• We agree “Not to … reproduce or publish any content or information found on the Services, except as explicitly described in these Terms.”6
• “You may use the Ancestry Content only as necessary for your personal use of the Services or your professional family history research, and download the Ancestry Content only as search results relevant to that research or where expressly permitted by Ancestry.”7
• “You are free to use a small portion of individual photos and documents that are Public Domain Content, but you must obtain our written permission to use more than a small portion of these collections.”8
So… in a perfect world, any copyright notice that appears on materials that really are out of copyright individually, like that 1894 article, should say that it’s only a compilation copyright.
But it’s a good reminder anyway in any case to think about copyright, to keep within the scope of the compilation copyright, and to remember the terms of use limits that apply to this and to every website that we use.
SOURCES
- See generally Judy G. Russell, “That 1923 date,” The Legal Genealogist, posted 30 Nov 2016 (https://www.legalgenealogist.com/blog : accessed 12 June 2018). ↩
- See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” updated 10 Jan 2018, Copyright Information Center, Cornell University (https://copyright.cornell.edu/ : accessed 12 June 2018). ↩
- ¶ 5, “Content Used in the Services,” Ancestry Terms and Conditions, Ancestry.com (https://www.ancestry.com/ : accessed 12 June 2018). ↩
- Copyright in Derivative Works and Compilations, Circular 14, PDF at 1-2, U.S. Copyright Office (https://www.copyright.gov/ : accessed 12 June 2018). ↩
- See generally Judy G. Russell, “Reprise: a terms of use primer,” The Legal Genealogist, posted 29 Apr 2015. ↩
- ¶ 2, “Requirements for Using the Services,” Ancestry Terms and Conditions. ↩
- Ibid., ¶ 5, “Content Used in the Services.” ↩
- Ibid. ↩
This is a most helpful post. I wondered about using items individually that were out of copyright. Thank you.
Glad you found it useful!
Interesting. Do you think their intent in the wording “You are free to use a small portion of individual photos and documents that are Public Domain Content” is closer to “you are free to use a few pages” or to “you are free to use small pieces of a few pages”?
I suspect it’s very much an “it depends” situation. If you’re writing about WWI, and you get to 11/11/1918, reproducing the front pages of a couple of Armistice Day newspapers would be fine. In other cases, clippings from those pages would be closer to the intent.
This is always the rub. When speaking about “a small portion” of a photograph, is that 25 percent of the entire image or electronically, one that’s a lower resolution? Ahh, copyright! This former archivist loves you so!
They do remind us, over and over, it’s not a matter of mathematics… 🙂
I can’t get a straight answer about using just the top section of the front page showing the headlines (not the content of the articles) that a relative woul have seen on a particular day. I would consider this to be a small portion, but do they? If yes, I can use it without fear, if no, I asked for permission to use it, but so far, everything is on hold while awaiting a response — most annoying. (Especially when taking into account the fact that seeing the headline may drive traffic to the company ‘s website looking to see the content of the related articles not included in the clip I want to use).
So, if I want to include a clipping acquired from Newspapers.com in a blog post I’m writing (if out of copyright and acknowledging them, of course), does that fall under the 3rd stipulation in the T&C?
I can’t tell you what Newspapers.com would say, but I can tell you that I certainly have considered that use appropriate under either or both of the second and third quoted sections.
So can I transcribe the article and add it to my family tree? Would that be infringing on any copyrights?
If your family tree is on Ancestry, you can link to it within the Ancestry family of companies. Otherwise, you might want to just extract the facts (which can’t be copyrighted) rather than copying the exact language (which can be).
Thank goodness we have a lawyer in the Genealogy “Big House”.
Just a genealogist with a law degree (I don’t keep an active law license…)…
I have acquired various newspaper clippings from several document collections from my ancestors. As I understand the copy write laws, I can extract the data but cannot use the actual clipping in any type of communication. These clippings do not reference the newspaper they are from nor the published date. I’m sure that I have used them in the past, but will no longer do so. Very helpful.
It’s more complex than this suggests:
(1) You can always extract and use the facts since facts can’t be copyrighted.
(2) You can use any clipping from any newspaper that’s out of copyright. (Figuring out if it’s out of copyright is the hard part.)
(3) You can use any clipping from any newspaper that is still copyright-protected if you get permission. (That’s called a license, and it just means permission.)
(4) You can use a clipping if it falls under the legal doctrine of fair use.
I’m still confused by all of this. If I want to use an image of a clipping (an obituary I found from 1972 or a help wanted advertisement from 1956) to put in a report I’m doing (happens to be pro bono for a person outside my family), can I do that from Newspapers? What if I have an image of an actual clipping that is in a file cabinet in my local historical society? Who do I need permission from? The newspaper itself? The historical society? Newspapers website? Can I use any of it at all?
Caveat: this is not legal advice. That being said, reproducing a single article from a single issue of a single newspaper is almost undoubtedly going to be considered fair use under the copyright laws, so no specific permission required. What website or repository you get it from can be important, since some (like Newspapers.com) give permission for that use and others (like GenealogyBank) require additional permissions to be sought and obtained first.
Thank you. I’m learning to write reports and noticed that examples of reports in ProGen had images in them. I wanted to do that and then all of a sudden became paralyzed thinking that I am not allowed to add images of photos or documents to reports. It’s all so confusing.
After reading through this and your other posts in the copyright series, I still have a question about using clippings from ca.1900 newspapers that I found on NewspaperArchive.com and/or Newspapers.com. I realize sharing the image on my blog and FamilySearch may violate the terms of use, butis it ok to share a transcription of the article?
You have to examine the terms of use of each website. It’s not a copyright issue, it’s a contract issue controlled by the contract with each website.
I’ve been wondering about obituaries as I work sourcing hundreds of unsourced profiles in Wikitree. I’ve found many obituaries that enhance the biography as well as the documenting family relationships but ponder how much of an obituary is considered facts that cannot be copyrighted. It seems like most of the info, but I’d like to get your thoughts.
A list of survivors and other family seems like they would be facts. (?)
Places and dates of employment, military service, marriages, facts. (?)
What about general “recollection” biographical information like “She volunteered with numerous charitable organizations over 35 years” or “He loved restoring classic automobiles.” Are these facts? And by that, I mean facts that cannot be copyrighted, rather than anything to do with whether they are provable or documented.
I’ve noticed sometimes the same obituary in multiple sources, where the editor has simply shifted around the layout of the facts & paragraphs to make it their own. So that has me wondering. Can I copy and paste the relevant facts from an obituary and reuse them (with citations of course). What about copy and pasting the full obituary and tweak/rearrange it slightly like the papers do?
I would love to get your thoughts on facts as they relate to obituaries, and proper use.
Thank you.
Simply rearranging paragraphs does not diminish the copyright concerns. Extracting facts is not the same as copying-and-pasting content. If the obituary is copyrighted (and most are), then you may extract facts (date of marriage, place of employment) but not copy exact wording or the way those facts are expressed. There’s a difference between “He loved restoring classic automobiles” and “Hobby: classic vehicle restoration”.
What if I want to use several obituaries from Newspapers.com in a family history book that I would like to sell to my cousins or would like to give to a genealogical library? Would selling or giving make a difference?
There’s no fundamental legal difference in the long run between commercial and non-commercial. Non-commercial use isn’t automatically protected. The safe bet always is to use non-copyrighted materials or get permission.