Ask Author Law

Writing about real people covered by long-ago newspapers: a risk/benefit analysis

July 11, 2016

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Infringement, Risk, Benefit, Plagiarism, Libel

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship. If you have a question for this blog send it to authorlaw@yahoo.com.

Q: Thank you for the opportunity to ask a question. I really have no idea what Iím doing.

I have stumbled across a series of articles written in a long-defunct newspaper about the unusual experiences of a professional reporter. The articles were written in the 1920s, and involve the names of real people and companies/corporations of the time.

The story is compelling, and I would really like to retell it, but am unsure as to what Iím able to do with it. I obviously do not wish to commit an act of plagiarism, copyright infringement, or libel of any kind.

I would appreciate any guidance you might be willing to offer.

A: You have raised several interesting questions, and the answers will depend on exactly how you plan to use the articles.

First comes the question of whether the articles are in the public domain. If so, you are free to use them without worrying about questions of copyright infringement. The copyrights on most, but not all of materials published in the United States before 1923 (up until the end of 1922) have lapsed, if they ever existed at all. Before the modern copyright law was enacted in 1976 and went into effect on January 1, 1978 publication without a copyright notice at all could plunge the work immediately into the public domain. Registered copyrights were initially protected for 28 years, after which they could be renewed for a second 28 year term. If they were not renewed, they lapsed into the public domain. If they were renewed, copyright protection was extended for another 28 years. However, the term of copyright has been extended several times for most, but not all works that were renewed after 28 years. For works published in 1923 or later there is a complicated set of issues to be evaluated. Hereís a link to the Cornell University copyright information website chart that can help you evaluate the copyright status of a work: http://copyright.cornell.edu/resources/publicdomain.cfm. You can also get excellent information on many copyright subjects from the Copyright Office itself. Hereís a link to a pdf about duration of copyright: http://www.copyright.gov/circs/circ15a.pdf. Iíd like to add that the Copyright office is a terrific resource for copyright questions in general.

Even if you canít determine that the newspaper articles are in the public domain, the risk of a defunct newspaper coming out of the woodwork in 2016 is low. There are not many clean yes or no answers to copyright questions, but it can help to think in terms of a risk/benefit analysis. Your own tolerance for risk along should be considered along with such factors as the vulnerability of your assets, insurance coverage, and business entity status.This is merely an informed guess and it is NOT personal legal advice, but it seems to me that your risk of liability for copyright infringement falls in a range from extremely low to non-existent.

But (and isnít there always a but?), you referred to plagiarism and thatís not the same as infringement. Plagiarism is an academic concept. Direct copying of someone elseís work without attribution to the source may be considered unethical in academic writing and journalism -- even when itís not infringement. Itís a subtle distinction, but an important one to be aware of. Acknowledging your sources (in notes, the acknowledgement section of a book, or directly in the text) helps you avoid plagiarism and keep your authorship ethical as well as legal.

You also mentioned libel (written defamation). Again, a risk/benefit analysis is helpful here. In this particular case, my educated guess is that most, if not all, of the people mentioned in the articles are dead. If so, your words canít injure them legally and youíre probably off the hook for defamation.

There is one other consideration. Dead celebrities in some, but not all, states, whose estates may still be reaping financial benefits from the use of their name and images could be a problem for you to write about. The right of publicity, as this is called, is unlikely to apply in your case. If you wanted to include Elvis Presley or Michael Jackson in your work, you might need to exercise some care. Even then, as long as you are not using their names in commercial endorsements, there is not a problem.

Last, your risk is further reduced if you are only writing about the articles (as opposed to copying them verbatim), fictionalizing the story, or changing name and place references to ďprotect the innocent.Ē

All in all, my informal opinion ( not personal legal advice) is that you may proceed without a likelihood of legal consequences.

How far can I go in retelling a compelling story from a series of articles in a long-defunct newspaper?

June 1, 2016

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, IP Law, Intellectual Property, Journalism, Authors, Infringement, Plagiarism, Libel

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship. Send questions for this blog to authorlaw@yahoo.com.

Q: Thank you for the opportunity to ask a question. I really have no idea what Iím doing.

I have stumbled across a series of articles written in a long-defunct newspaper about the unusual experiences of a professional reporter. The articles were written in the 1920s, and involve the names of real people and companies/corporations of the time.

The story is compelling, and I would really like to retell it, but am unsure as to what Iím able to do with it. I obviously do not wish to commit an act of plagiarism, copyright infringement, or libel of any kind.

I would appreciate any guidance you might be willing to offer.

A: You have raised several interesting questions, and the answers will depend on exactly how you plan to use the articles.

First comes the question of whether the articles are in the public domain. If so you are free to use them without worrying about questions of copyright infringement. The copyrights on most, but not all of materials published in the United States before 1923 (up until the end of 1922) have lapsed, if they ever existed at all. Before the modern copyright law was enacted in 1976 and went into effect on January 1, 1978 publication without a copyright notice at all could plunge the work immediately into the public domain. Registered copyrights were initially protected for 28 years, after which they could be renewed for a second 28 year term. If they were not renewed, they lapsed into the public domain. If they were renewed copyright protection was extended for another 28 years. For works published in 1923 or later there is a complicated set of issues to be evaluated. The Cornell University copyright information website has a great chart that can help you evaluate the copyright status of a work at http://copyright.cornell.edu/resources/publicdomain.cfm. (see links to the right). You can also get excellent information on many copyright subjects from the Copyright Office itself. You can find a pdf about duration of copyright at: http://www.copyright.gov/circs/circ15a.pdf. Iíd like to add that the Copyright office is a terrific resource for copyright questions in general. There is a link to the Copyright Office website at the right.

Even if you canít determine that the newspaper articles are in the public domain, the risk of a defunct newspaper coming out of the woodwork in 2016 is low. There are not many clean yes or no answers to copyright questions, but it can help to think in terms of a risk/benefit analysis in combination with your own tolerance for risk along with such factors as the vulnerability of your assets, insurance coverage, business entity status etc. This is merely an informed guess and NOT personal legal advice, but it seems to me that your risk of liability for copyright infringement falls in a range from extremely low to non-existent.

But (and isnít there always a but?), you referred to plagiarism and thatís not the same as infringement. Plagiarism is an academic concept. Direct copying of someone elseís work without attribution to the source is considered unethical in academic writing and journalism even when itís not infringement. Itís a subtle distinction, but an important one to be aware of. Acknowledging your sources (in notes, the acknowledgement section of a book, or directly in the text) helps you avoid plagiarism and keep your authorship ethical as well as legal.

You also mentioned libel (written defamation). Again, a risk/benefit analysis is helpful here. In this particular case, my educated guess is that most, if not all, of the people mentioned in the articles are dead. If so, your words canít injure them legally and youíre probably off the hook.

Last, your risk is further reduced if you are only writing about the articles (as opposed to copying them verbatim), fictionalizing the story, or changing name and place references to ďprotect the innocent.Ē

More Copyright Bunk

March 4, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright Myths, Publishing, Books, Bunk, Contracts, IP Law, Intellectual Property, Piracy, Infringement

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: Isnít it true that copyright lasts too long and that it gets in the way of the free flow of information? It seems to me like big companies use copyright as another way to be selfish and greedy.

A: There have been wild and misguided claims that copyright law is outdated and that information wants to be free since the advent of the internet. Such claims are simply not true. Many critics of copyright are really asking: "Now that it's cheap and easy, isn't it OK to steal words, music and art?" And I say that the answer is ďno.Ē Copyright infringement is theft, pure and simple. Copyright law is clear and basic Ė words, pictures, and sounds expressed in a distinctive way and written down or otherwise fixed in a tangible medium of expression are the property of the creator, not the public.

Copyright owners give permission for the use of their work in a variety of ways. Many authors, for example, license their work to publishers or publish their books themselves and make money from sales. Some authors sell millions of books and become wealthy. For most, however, the income is modest. A few authors choose to their work available for free, and thatís fine. But the pricing decision is rightfully up to the author, not the reader. The same concept applies to music and movies. Musicians and moviemakers have the right to decide whether their work should be free or not.

"Thou shalt not steal," is a core tenant recognized in virtually every civilized society and it applies to the rights of copyright owners today. No civilized society recognizes a right to steal physical property, even when it's easy to do so and tempting to rationalize. No civilized society recognizes the theft of intangible property, either. Just as laws, both civil and criminal, provide penalties and sanctions for the theft of tangible property such as jewelry, bicycles, and soccer balls, copyright laws provide penalties for the theft of creators' rights. Stealing is stealing. And it's always been wrong.

So please donít buy into the myth that ďinformation wants to be freeĒ or that itís OK to help yourself to anything on the internet. Donít be misled into thinking that piracy is noble. Thatís all copyright bunk!

Quoting from an actual letter

January 5, 2015

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Infringement, IP Law, Intellectual Property, Plagiarism, Freelance, Fiction

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: Could you please give me an opinion on what is or is not plagiarism in fiction. For example, is it plagiarism to rewrite a letter in a fictionalized biography, so that the sense is the same as the original, but with very different wording, with original material added by the writer? In other words, how close does the prose have to be to fit the definition? Do you need permission in such a case, or is it enough simply to give credit?

A: You asked about plagiarism, but Iím also going to discuss infringement. All infringement is plagiarism, but all plagiarism is not necessarily infringement. Plagiarism is an academic concept regarding the failure to attribute the source of information or by misleading the reader as to the source. Infringement is the violation of a copyright. In cases of infringement, the issue is illegal copying, not attribution. You may be able to avoid charges of plagiarism by giving credit, but you need permission to use copyrighted work, except for very short quotes that constitute fair use. The situation you have described has the potential for both plagiarism and infringement.

There is no copyright protection for facts, so youíre free to fictionalize by inventing things based on the facts. The writer of a letter (published or unpublished) owns a copyright interest in the text of a letter, so youíre not free to make whatever use you wish of this other personís work. The same legal guidelines would apply to quoting someone elseís copyrighted work in fiction as in nonfiction. Short quotes might be considered fair use, but I wouldnít count on that.

Probably the safest way to handle this situation would be to paraphrase the actual letter and use indirect quotations. ďI will love you until the end of my days and beyond,Ē a direct quote, could be handled like this: Mary expressed her feelings in a passionate letter to John, saying that she would love him until she dies. Even when paraphrasing, it is important to change the actual words enough to avoid repeating distinctive phrases.

I would not advise making up a fictional letter and using direct quotes from it. That strikes me as moving a step beyond making up fictional dialogue. Rewriting something does not necessarily protect you from charges of plagiarism or infringement. Such revision would certainly be considered improper by academic standards and Iím not sure how you would handle quoting from a fabricated letter without misleading the reader. Basing a fictional letter on an actual letter could also be copyright infringement, even when you change the words. So, for all these reasons, I would stick to paraphrasing an actual letter by describing its existence and the gist of its contents. If you must use direct quotes, make them short and quote from the actual letter, not a fictionalized version.