An academic librarian relayed this question from a researcher/author:
"I am in the stage of tracking down photo permissions and have found images originally published by U.S. presses from the late 1800s and early 1900s (1887, 1893) that are now defunct--hence I cannot request photo permissions from them. The images are posted online by historical societies, but I'm not sure if they're in the public domain or not. I plan to reach out to the society publishing the images on their digital archives, and credit them for using the images, but is there any other factor to consider?"
First, some validation: the faculty member is wise to be considering this issue, since publishing contracts almost always put the responsibility and liability for photo clearances on the author.
In this case, there are several layers of copyright ownership to consider: the original copyright of the photographer, the copyright of the books, and the copyright to any re- publication by which they are being made available (for instance, a digital archive).
Because of the publication dates (1887, 1893), the original copyrights (for the photograph and the original book), are most certainly expired. The only concern would be if the images were somehow used to create a work with a "new" copyright...for instance, if the picture of the long-dead person was enmeshed with a picture of Janelle Monae on a rocket ship to Mars...which isn't the case here.
So, while in the law game there is a rule of "never say never," based on the dates, the images in this question should be free from copyright. That said, as contemplated by the question, it is almost always a good idea to extend a "courtesy acknowledgement" to a historical society, library or other archival resource that stewarded the image so it could be used for research.
Other risks of using old photographs for commercial publications are: the possibility that the image is being used as a trademark, and the possibility that the re-publication could make commercial use of images of deceased "personalities." These should both be ruled out before publication.
In addition, when using a photo--especially for publication--it is a good idea to confirm that there are no ethical or relational concerns with using certain images. For these reasons, writing to the historical societies to inquire about images kept in their collections (as the faculty member in this example is doing) is a good idea...just ask for information, not permission. Checking in with a person who focuses on ethical issues in that particular area of scholarship is wise, too.
 This is something "authorlaw.com" attorney Sallie Randolph and I often bicker about. I advise writers to resist such clauses (or demand better royalties for taking on the risk). Sallie, who has negotiated hundreds of author contracts, tells me this is not realistic advice, because for most major publishes, it's non-negotiable. But as I see it, everything in a contract is up for negotiation!
 A good resource for double-checking the date when works are in the "public domain" (which can vary) is at https://guides.library.cornell.edu/copyright/publicdomain. Thank you, Cornell.
 I discussed this part with Sallie Randolph, too, and for once, we agreed! When contacting an organization about a public domain image, never ask for permission, but say something like "I am contacting to discuss using a public domain image from your [archive] to see how you would like the organization credited for having made the image available to researchers."
The song “Pomp & Circumstance” is in the public domain.
Is it permissible for students to play this music while being recorded and for the district to stream it live as well as distribute a link to the recording later?
Not only can the students play, record, and stream “Pomp & Circumstance,” but they can also create an original musical based on it, rap over it, score an original movie with it, and in short: do anything they want with it.
While anyone graduating in 2020 deserves this kind of red-carpet legal treatment, not only can the students do it, but everyone else can, too. That is the beauty of a work being in “the public domain.”
Thanks, and may all your virtual ceremonies be joyous.
 That said, any publisher that has created and distributed its own version of “Pomp and Circumstance” with a specific arrangement, illustrations, instructions, etc. may own the copyright to that particular text, and it shouldn’t be duplicated via hard copy or scanning. In a similar vein, any publisher that has issued a specific recording may own the rights to that specific recording, and that should not be streamed or used without permission, either. But the composition of “Pomp and Circumstance” is in the public domain, so generating a student-created version of it is fine, and if the district is the one recording it, they (and the performers) own the copyright (see Copyright Office Circular 56)!
 “In the public domain” means “no longer protected by copyright.” Edward Elgar, composer of “Pomp & Circumstance,” died in 1934, so even under the most rigorous scheme of ownership, the copyright to P&C has expired.
I am in the stages of planning a library one-time-only event aimed at getting college students interested in writing their own works of fiction. There are no class credits involved. My premise is “Where do ideas come from?”
Some now-published authors first writing attempts were in writing fan fiction (fanfic). I may suggest that as a possibility while advising the students that they cannot legally make any money from such works. I was also planning on mentioning pastiche works, where they could have similar characters, situations, etc. Now I wonder if that is an improvement?
I recall a Sherlock Holmes inspired character called Solar Pons. The Solar Pons stories basically consisted of all the Holmes characters with different names, though mentioning Sherlock in the stories. These works were published by August Derleth and later by Basil Copper. [see the attached newspaper article from the 2015 issue of the independent]
I hoped to suggest either of these options as a way to spark some interest, but wonder I’d be opening a can of worms that is best kept shut.
For this question, the Law Office of Stephanie Adams, PLLC used a ringer--experienced publishing law and published author Sallie Randolph, who works in our office, advising authors on publishing contracts. We asked Sallie for her take--as both a copyright attorney and an author--on this intriguing question. Here is her reply:
A library program aimed at sparking the interest of college students in writing fiction is a great idea! Encouraging them to try their hands at fan fiction is good way to give them a jump start. Fan fiction writing can build skills related to such fiction elements as plot and character, and writing fan fiction is widely acknowledged as an effective way to build writing skills, but it is also highly controversial.
I share your concern about the legal risks involved with writing fan fiction. Most college students don’t understand enough about the nuances of copyright law to truly “get” the reasons why they probably shouldn’t share their work online. Absent the consent of the copyright owner, there is no right to create fan fiction. It’s that simple. But the reasons why are complex.
Under copyright law, a work that is “based on” another work is defined as a “derivative work.” The right to create a derivative work is reserved by law to the author of the original work. In the process, a derivative work becomes an independently copyrightable new work. However, the right to write a derivative work requires permission of the original author. Fan fiction is a derivative work, and, therefore, if unauthorized, is infringing.
Writers who want to create fan fiction should do so with extreme caution. Swirling around in cyberspace are myriad justifications for copyright infringement. Many copyright myths also circulate in cyberspace. People may think it’s OK to post their fan fiction on the web because they’re generating publicity for the original author, or because they don’t make money, or because writing fanfic is paying a compliment to the author, or because the original work is out of print. There are dozens of excuses.
Copyright is literally the right to copy. Copyright infringement is what lawyers call a “strict liability tort.” If you copy without permission you are infringing. Assumptions, excuses, and myths are dangerous. Only the copyright owner has the right to decide what others can or cannot do with her work. Copyright owners have no obligation to explain their motives for granting or withholding permission. They have no obligation to even reply to permission requests. There is no such thing as default consent. The obligation to get permission falls squarely on the shoulders of the writer fan.
There are authors who don’t mind fan fiction, a few who actually encourage it, and many others who are solidly against it. Sometimes infringers get away with it because of what I call “author exhaustion.” Such authors are against fan fiction and other forms of infringement, but they’re tired of trying to assert their rights against the infringers. Trying to get infringing material taken down from YouTube, for example, has been compared to playing whack-a-mole.
We’ve all heard stories about how authors feel – about how Fifty Shades of Gray started out as fan fiction, or how a sequel to Catcher in the Rye resulted in the “fan” losing big time in a major lawsuit. The fan author is almost always the party at legal risk, and the misunderstood defense of fair use almost never applies to fan fiction. There was a rare case in which a retelling of Gone with the Wind from a black character’s point of view was held not to be infringing because of the important historical point that it made.
I have read online that J.K. Rowling reads and enjoys speculative fiction about Harry Potter and his fellow characters. I have also read that J.K. Rowling is highly protective of the Harry Potter brand and has threatened to sue fans for including Harry in their writing. I have seen her name on lists of authors who encourage fans to write about Harry and on other lists of authors who do not allow such use.
I know a number of authors who hate the idea of fan fic but have decided not to engage in this particular copyright war. I know of more than one author who have asked fans for plot suggestions from their readers, only to be threatened with lawsuits when they published a story vaguely similar to a reader suggestion. Well intentioned people can argue in circles about the legal and ethical risk. Fan fiction has become a volatile topic.
But what if the all that volatility and copyright debate can be avoided? Many people seem to think that lawyers are impractical, and I acknowledge that we can often get distracted into theoretical debates. In this case, however, I am happy to offer a piece of practical advice. It’s simple: focus your event on encouraging students to base their fan fiction on public domain works.
Literature of the past has often inspired new works. Classic stories could similarly spark the interests of the students attending your event. A famous example is West Side Story – a retelling of the Shakespeare classic Romeo and Juliet. Kiss me Kate is based on Taming of the Shrew. Fairy tales (the original ones, not the Disney versions), fables, and folk tales are interesting to adapt. Bible stories are fair game. Even some of the Sherlock Holmes stories are now in the public domain. Classic novels such as Pride and Prejudice, A Tale of Two Cities, Little Women, Kidnapped, or Huckleberry Finn, are just a few examples of fanfiction possibilities. One word of caution: New fan fiction should be based on the original public domain work, not on another fan’s adaptation of that work.
Using public domain works to encourage fan fiction will let you meet the goal of your event by kicking that can of worms on down the road.
Many thanks to Sallie for lending us her insights and experience!
I am working with an artist on a future display at our library. He is a regionally known professional artist. He is working on an engraving that makes use of a short poem by a deceased, well-known poet. He has learned that the poem is still under copyright and that the poet’s estate is active, but believes that unless it gets renewed, the poem should be in the public domain by the end of the year. If the exhibition is to be before that time, should he apply for permission to use it? If so, is that likely to be expensive?
This is a great question, since it shows how libraries not only provide access to information, but serve as patrons for the arts. This nurtures local culture, spurs community creativity, and brings special attention to a library.
As the member points out, though, this role also comes with its own set of legal issues, including copyright concerns.
“Ask the Lawyer” was created to provide practical guidance and tips to libraries, museums and archives on the front lines of culture. So, while there are many excellent treatises out there on copyright, fair use, contributory infringement, estate law, and contract law—all of which are showcased in this question—rather than wax philosophical, this answer will try, above all, to be useful to a librarian as they work with their community to nurture new art.
With that in mind, here is a checklist flowchart of “red flag” issues, and potential solutions, to help you find the smoothest legal road for bringing custom art to your library.
Bringing Custom Art to Your Library
Contract Development Flow Chart
Step 1: Establish the vision and shared goals for the projectWork with the artist to develop a carefully description of the project.
NOTE: In other words, is the artist considering any permission they might need, or fair use they need to make? In this exercise, they should rely on their own lawyer (sometimes provided pro bono by an arts organization), and never on input from the library.
NOTE: All discussions should make it clear that until a formal written agreement is reached, discussions are just speculative, and not a contract for services.
Step 2: Establish how it is being paid for
NOTE: if the artist is being paid (and they should be), or is selling anything based on the end result, and the materials are not becoming part of the library (like a mural or a custom Narnia-inspired wardrobe that is actually a built-in bookcase), the library should not purchase the materials…but the artist can factor the cost into the final price.
Step 3: Establish ownership
This step controls a lot of the latter considerations.
NOTE: If the answer is “yes,” a plan for jointly managing the asset should be developed. Generally, to avoid this complication, you want the answer to be “no.”
Step 4: Establish clear boundaries
This can help avoid confusion and stress later.
NOTE: “Nothing except moral support” is a great answer.
Step 5: Confirm critical responsibilities
NOTE: Unless you are co-authors on an exciting joint venture with a very well-developed contract and express insurance provisions, clearance and permissions should never be done by your library. Further, when you develop a final agreement for the work, it should contain a clause stating that the artist is the sole author of the work, the artist is responsible for obtaining necessary permissions, that all necessary permissions have been secured, and that the artist will hold harmless, indemnify, and defend the library (and its trustees, employees and volunteers) in the event a third party claims the work is infringing any copyright, trade mark, image right, or right to privacy.
Step 6: Protect the library!
You can tell by the questions on the worksheet that my final guidance on is this: when developing a public art project, be picky about the details, and turn them into a good contract.
Because there are too many variables amongst the libraries (public libraries, college/university libraries, hospital and prison libraries, museums, private archives), I cannot offer a standard template for this. A public library is in a different place than a library within a college or museum; they all live in different regulatory universes, have different vulnerabilities, and have different rules and obligations. This is why simply “borrowing” a template from another institution is often a bad idea.
However, I can say that any good contract will address the above-raised issues, and if you have used this worksheet in advance, assembling such a contract will be easier.
Step 7: Promote Culture, Enjoy Art
I know: nothing kills inspiration faster than the word “indemnification.” This worksheet brings up a lot of messy details that, if brought up at the wrong time, can hamper creativity.
But I have found that addressing these details early actually helps a project move forward. It gives the library and the artist clarity about their roles. It gives the security of assurance about vital details. Most importantly, by inspiring forethought about possible impediments, it makes challenging projects possible.
So revel in the details, make room on the walls, and let the art flow!
 You’ll see that throughout this checklist I also refer to the artist as the “author.” The copyright law uses “author” as a catch-all term for the creator, whether they are a writer, photographer, sculptor, etc…
 I know, if the library can buy the materials, they’re tax free! But both the state of NY and the IRS are pretty clear on this.
Is it permissible to create an anthology of 20-30 poems, all by British poets, to be distributed to an entire grade level of students to be used for annotation and instruction? [It’s been suggested] that "since they're all available on the internet" they should be able to printed, collected, bound, and sold to students. A few things that I am unclear on are:
1. Does it make a difference that they are British poets whose work is in the public domain (as I understand, 70 years after death of author)
2. Does it make a difference that the collections are intended to be SOLD to students?
3. If they are, in fact, available through sites such as Project Gutenberg and https://www.whitemarketpodcast.co.uk/blog/2015/10/08/public-domain-poems-for-national-poetry-day/ are they okay to copy, bind, and sell?
I wandered lonely as a cloud…wondering “is there a way to create our own custom array of poems by Wordsworth, Keats, and Burns?”
The answer is: Yes. If a poem was published before 1923, or meets certain other criteria, it is in the public domain. Being in the “public domain” means it is free from copyright protection, and that any would-be publisher may generate, duplicate, and sell their own version of it—with or without new illustrations, new original commentary, and other non-infringing works.
When taking on such a project, the critical factor for worry-free re-use is publication before 1923. For such poems, status in the public domain is assured.
For poems published after 1923, the analysis is a bit trickier. There is no hard-and-fast rule; the place of publication, the manner of claiming copyright protection, and the life of the author are all relevant. Cornell maintains an excellent chart that breaks down the factors to consider when assessing if a work is in the public domain.
Public domain status, or permission from the copyright owner, is something a would-be publisher should verify on their own. It should not be assumed, even if the poem is free for download on the internet. Even Project Gutenberg puts terms and restrictions on its content (see the Project Gutenberg License), and does not guarantee that a work is in the public domain (check out PG’s statement on this issue).
Once a would-be publisher has a method for confirming that the poems are in the public domain, it does not matter how many poems they use. When working with public domain material, there is no limit on how many works can be assembled, duplicated, and distributed.
That said, there are a few serious caveats.
First, a publisher must truly verify that each and every poem was published (not written, but published) before 1923, or that any post-1923 publication meets the factors on the chart.
Second, a publisher must make sure they are not infringing someone else’s updated version of a public domain poem. All of Chaucer’s works may be in the public domain, but a new translation, or a copy with new cartoon illustrations, is not. To avoid any charge of copying, it would be best to re-type the poems. Do not copy a recently annotated version. Do not scan a newly illustrated version. Do not simply cut-and-paste. For the final compilation to be owned and then sold by the new publisher, the typing should be done by an employee, as part of their work.
Third (but very important!), if preparing copies of public domain materials for sale, take care that trademarks are not a part of the newly compiled content. As an example…a publisher can re-print a pre-1923 poem about Coca-Cola, but can’t use the Coca-Cola logo to sell the copies (unless its for commentary/criticism, but that’s a fair use question…). Make sure the school has the rights to any images that are used.
Overall: The member’s question models the sense of caution when using previously published material. But with the above caveats in mind, a new publisher can relax, share some poetry, and say:
For oft, when on my couch I lie
In vacant or in pensive mood,
Poems flash upon that inward eye
Which is the bliss of solitude;
And then my heart with pleasure fills,
Thinking I will have no legal bills.
When "Ask the Lawyer" started in 2016, the author was not thinking about how, just a few years later, the "Public Domain" date would change. To preserve this shameful lack of foresight, but also ensure accurate information, as part of the "2021 ATL Audit" we are adding this footnote: Please substitute "1923" with [whatever year it is minus 95]. For instance, if it is 2021, the year should be 1926. When in doubt, visit the excellent chart at https://copyright.cornell.edu/publicdomain.
 While rare, some copyright owners simply announce that their work is free to use, or free to use with very limited restrictions. Such an announcement should be verified and documented before being relied on.
 If the end product is simply a gathering of public domain material, it might not have sufficient originality to be subject to copyright. But if new illustrations or instructional materials are included, it might.
Is public domain based on the copyright of the work OR is it based on when the author died OR perhaps it is based on something else?
Basically, how do you know if something is in the public domain?
The Public Domain…intellectual property’s frontier. These are the adventures of those working with no copyright. Their mission: to use pre-existing content, to explore not being sued for infringement, to boldly go where no legal protection has gone before..!
[Insert inspiring theme music here!]
Sigh. If only this question was as simple as putting on a spandex unitard and exploring the galaxy. Unfortunately, it isn’t, and there is no one hard and fast rule for assessing if something is in the PD (Public Domain), and thus available for use without licensing, permission, or any concern about copyright.
So what do you do if you want to work with material you think might be in the PD? You have to analyze it.
A work has several ways of getting into the PD:
1. It lacks sufficient original authorship to have ever qualified for copyright protection. Example: a simple, non-descriptive list of characters in a play.
2. It qualified for copyright but was never protected. Example: a play published in the US in 1957 without a copyright notice.
3. It was once protected, but the protection expired. Example: a play published in 1988 without a copyright notice, and without subsequent registration within 5 years.
All three of these can be tough to assess. There is, however, a great chart maintained by Cornell, that enables some determination related to #2 and #3.
Do you need to assess if something is in the Public Domain? Check out the chart. With the right information about a work (the author/owner, date of publication, and circumstances of publication) it can be used to determine if a work is in the Public Domain. But take care! When working with the chart, make sure you verify every relevant variable. Have someone knowledgeable, or an attorney, double-check your conclusion.
Once you’ve done that, you can voyage to the undiscovered territory, secure in the knowledge that no one can sue you for infringement (based on copyright).
 “The public domain” should not be confused with “copyleft” practices such as Creative Commons licenses, or “Open Source” agreements that authorize use under very light restrictions; such licensing is still based on the underlying property having a protectable copyright.
Can we film a story time done at the library using copyrighted books, and then either stream the event live over Facebook for a one-time showing, or film and upload the story time to our library's YouTube channel? The purpose would be so that patrons who cannot come to the library will still be able to participate in story time and gain early literacy benefits.
This is a lovely idea, but any library considering something like this should get assurance that the work is in the public domain, or have permission from the authorized licensor (who is not always the copyright holder), before filming/streaming.
A great example of a permitted derivative work is a commercially published audiobook. Check out the credits on an audiobook listing—they generally recite two copyrights: the first for the original work (used with permission), and the second for the audio recording. This is how the law both limits and promotes such recording.
A few other legal considerations approach this scenario, but don’t quite apply:
That said, because a live reading could promote the works featured, I imagine there are publishers who would grant a limited license for such an endeavor. However, depending on their contract with the author(s), a publisher might not be able to! In any event, asking permission is a case-by-case exercise.
The good news is that the reading itself, at the physical location of the library, is allowed so long as it meets Section 110 (4) of the Copyright Act (this probably isn’t news to most librarians).
Very often, attorneys are perceived as throwing cold water on project like this, and hopefully this answer has shown why that is usually our only option. That said, if there is ever a specific work a library wants to plan an event around (a specific book, etc), it is worth it to investigate the status and licensing posture of that work. You never know what you’ll find when you check the status, or the ability to get permission, for a specific work.
I wish you all good reading.
 No longer protected by copyright…and for that matter, not affixed with a trademark the owner could claim you infringed.
 Because it technically “makes a copy” as it goes, streaming is often considered duplication. If you ever feel like causing a healthy debate, ask three intellectual property attorneys and a U.S. Supreme Court Justice to comment on this line of case law.
 Per Section 101 of the Copyright Act: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. [Emphasis added.]
We would like to digitize newspapers that were published prior to 1923. Since the paper is still in business, does public domain apply in this case? They are very difficult to deal with. We do have a contact there. However, if there is nothing stopping us from digitizing the older issues, we prefer not to deal with them. Would this also apply to other newspapers who are still publishing today but whose content does exist prior to 1923.
You have confirmed that the “Buffalo Evening News” (and other iterations) content originates BEFORE the strategic “1923” date confirmed by the Copyright Office (Circular 15a) as in the public domain. This is true whether the original article or image was owned by the paper, or licensed by the paper and owned by another person or entity.
Once an item is in the public domain, there are numerous ways for either the original owner, or another, to create a copyright in a new medium re-presenting the content (this is a motivating factor in many “special editions”), but the original is no longer protected, and may be digitized as you describe, without concern about an successful infringement claim.
One caveat on the “Buffalo News” content: there could be a concern as you promote the newly created resource. “The Buffalo News” is a trademark owned by (interestingly) The Columbia Insurance Co. (registration # 75834888). So while you can list the resource, I advise against using the name “The Buffalo News” in any promotion of the collection. That is for optimal safety and so you don’t get a cease-and-desist.
The good news is that the “Buffalo Evening News” trademark is officially “dead” (see attached screenshot). This may be used to promote the service, should you wish to do so.
This analysis and a similar caveat would apply to any other newspaper.