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.