I would like to include late 19th century photographs of the Westward expansion in an article I’m writing but a historical society is claiming copyright in them and is requesting payment of a fee before granting me permission to include them in my publication. Do I have to pay these fees even if the photos are in the public domain?
Law professor Jason Mazzone describes this common practice as “copyfraud. In a 2006 New York University Law Review article, he wrote:
Copyfraud…refers to claiming falsely a copyright in a public domain work. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the putative “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use, or altering their creative projects to excise the uncopyrighted material….False assertions of copyright are everywhere. In general, copyright belongs to the author of a published work and expires seventy years after the author’s death. Yet copyright notices appear on modern reprints of Shakespeare’s plays, on Beethoven’s piano scores, and on greeting card versions of Monet’s Water Lilies. Archives claim blanket copyright in everything in their collections, including historical works as to which copyright, which likely never belonged to the archive in the first place, has long expired.
Unfortunately, there is nothing in U.S. Copyright law to prevent or penalize organizations, societies, libraries and publishers posting a copyright notice on items in which they do not hold copyright and proceeding to collect royalty from the unsuspecting and the fearful. Under U.S. law, the duration of copyright protection for items created (publication or registration are not required) after Jan. 1, 1978 is the life of the author plus 70 years. For items created before that date, the duration of copyright protection is not so simply summarized. Copyright protection terms varied prior to 1978 and were reliant upon registration and renewal requirements that are not part of the modern law.
Works first published or registered in the U.S. prior to 1923 are in the public domain. No entity can claim copyright or charge for use of these works. For works created between 1923 and 1977, the duration of copyright protection depends upon several factors: whether there was publication with or without notice, whether there was registration, and whether there was renewal. I recommend using the chart prepared by Cornell University for works created between these dates. It is also important to note, that what is discussed above applies to U.S. works only. Works created by foreign authors and published in their respective home countries are subject to their intellectual property laws.
Mazzone, Jason. “Copyfraud.” New York University Law Review. Vol. 81, No. 3 (2006): 1026-1100.
For more on the problem of Copyfraud, visit the Public Domain Sherpa.
(Thank you to my UF library colleagues for the idea for this post.)