September 10, 2012

Copyrights in the Historical Arena

Abiding by copyright laws is as important as ever, especially in the age of the internet where I copyright violation is as easy as two clicks.  Much of what is posted on facebook and pinterest is actually a violation of copyright. (Read more on Pinterest and Facebook here at Why I Tearfully Deleted my Pinterest Inspiration Boards. While it is unlikely that posting on social media sites, the laws regarding copyrights are lagging behind the technology. Search engines using thumbnails has been ruled legal, but not sites.)

 I have noticed that the subject of copyrights is confusing to many, especially those in the history field.  Is it illegal to post scans out of a book, recreate a dress you saw in a museum quote from a diary or letter or post a photograph online? These questions are common and sometimes it’s hard to separate fact from fiction.

Copyrights exist to protect the current and future revenue of the copyright holder.  Once something is out of copyright, it typically enters the public domain, which means that anyone can use it. 

The magic date in US copyrights is 1923, originally copyrights were only supposed to last for a certain amount of years after the death of the holder; however in the late 90s, copyrights were put on hold and now, nothing new since 1923 will enter the public domain until 2018. 

Books: Published books have some of the simplest copyright laws. If the book was published before 1923, and you own a copy of it, you can reproduce and distribute copies or use it for derivative works. If a private collection gives you access and does not limit reproduction rights, you can use it. 

Diaries and Letters: The person who wrote them, owns the copyright. If the person is dead, their heirs own the copyright. Things written after January 1, 1978, automatically grant copyright to the author (and later heirs) for the duration of the author’s life + 70 years. Anything written before that is now subject to the same law, although that pretty much means it is in the public domain and you have permission to use it as long as you own the physical copy or have permission from those that do. 

If you find a letter, digitized by a private owner, you’ll need their permission to put it up on your own site, unless what you use falls under “fair use,” and you give the proper credit to the original source. Remember, fair use is dictated by percentage used. If you copy a poem in its entirety and post it on your website, you just copied 100% of the content. If you use one letter from a collection of letters, the percentage is much smaller. Fair use applies directly to scholars, which is why historians can quote in their own published works as long as they properly cite the passages.  

Artifacts in a Museum:

It is illegal to make a reproduction of an artifact found in a museum unless you have permission from the artifact owner. Museums make their money by having people come to see their unique items. Making a reproduction may affect their ability to make money. Always ask permission first and read each museum's policy. Some museums do not give you permission to publish photographs of items in their exhibits, even if they allow photos to be taken. The rules are different if the museum is a public museum and not private so do your research. 

If you own an artifact, it is yours to copy and distribute as you like, provided its copyright has ended. Clothing is typically exempt from holding a copyright because art is secondary to function unless the clothing contains a copyrightable logo or fabric pattern or isn't a functional garment. 
There are four rights that belong to the original photographer:

- The right to make copies of the photo.
- The right to make a derivative work of the photo. This includes altering a photo and using it in some way or creating a scan of an image.
- The right to distribute or share copies of the photo, which includes posting it online.
- The right to publicly display the work.

The photographer can sell the rights to one or all of the following rights to another person. This can make it complicated to track down the owners of certain photos.

- If you own an image published before 1923, you don’t need to get permission from anyone to use it. After 1923, you need to contact the rights holders for permission. Chances are, if it is a family photo, your family will give you permission.

- If you get access to an image created or published before 1923 in a private collection (museum) then it is up to the owners of the private collection themselves to dictate whether or not you have the right to allow patrons to use their property.

If you own a CDV and scan it and post it online, it is perfectly legal. If you copy a CDV that you find online, it is private property, unless the private owner notes if it is legal to use. If you need to show an image to a friend on a social media site, send a link and not a copy of the image. Remember there are other laws which dictate the legal use of modern photos. Some photos taken at certain reenactments are not legal to post online.

For more information on photo rights click here: COPYRIGHTS AND OTHER RIGHTS IN PHOTOGRAPHIC IMAGES.  

This post was just some general guidelines for historians. It is for informational purposes only and is not legal advice. Be sure you check the individual laws pertaining to individual items before you use them. Remember, just because it’s old, doesn’t make it okay to use. Just because you don’t plan on making any money from the use, doesn’t make it okay to use. Adding a disclaimer, also does not make it okay to use. Make sure what you are using is legal and that you give proper credit each time. Remember, someday someone might want to use your work.

Further Reading:

-US Copyright Office
-American Dutchess: Historical Costuming
-Elizabeth Stewart Clark: Ethical Dressmaking 
-Between the Seams, A Fertile Commons:An Overview of the Relationship Between Fashion and Intellectual Property


  1. I never really thought about that. I share Civil War photos with facebook groups all of the time.

  2. Sorry. I forgot to say that this is Chelsea.

  3. Excellent post. I think a lot of people will find that pretty helpful. :)

    1. I think in the future reposting photos will be okay as long as the photo is smaller than the original and a link.

      I was really curious about journals and diaries that have been published in modern times.

  4. Reading the legal stuff about Pinterest you linked has left me more confused than ever. So...Pinterest doesn't want us posting our own work, or that of anybody else? Is there any legally acceptable way to use that site??

    1. There is not a legal way to use it yet. It's highly unlikely that anything will happen if you use the site and I have a feeling that it will soon fall under this ruling:

      The problem is the laws are so far behind the technology. No one is really losing money from Pinterest, most places are getting improved traffic, assuming there is a link.

      I really just wanted people to be more aware of what they were posting. I've seen some illegal posting from museum sites and other bloggers on blogs and facebook.


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