Please Select A Question:

• If someone claims that they own the copyright to an item digitized and contributed to MMM, who is liable?



• Protected materials may be digitized if there has been a good-faith effort to locate copyright owners and obtain permission. What constitutes a good-faith effort to locate copyright owners?



• Some published items have no copyright notice or printing date, so the publication date must be estimated. What would be considered sufficient evidence to assume that a published item was published early enough to be digitized without permission?



• What copyright status should be assumed for unpublished, anonymous works?



• The copyright status of an item often depends on whether it is published or unpublished. Some historical items like photos or diaries might have been reproduced and published, though the library owns the original. Would this make any difference to the copyright status of the original artifact?



• Does the library have to do anything to prove that an item was NOT published or reproduced in a publication?



• Is the copyright to a personal letter held by the writer of the letter or the person it was written to, or both?

If someone claims that they own the copyright to an item digitized and contributed to MMM, who is liable?

Mini-grant recipients agreed to accept liability for copyright infringement in their mini-grant application. Institutions that have not received mini-grants are welcome to participate in MMM and contribute materials to the statewide collection. They will be asked to submit a letter agreeing to accept liability for copyright infringement for any of the materials they digitize.

Protected materials may be digitized if there has been a good-faith effort to locate copyright owners and obtain permission. What constitutes a good-faith effort to locate copyright owners?

For unpublished materials with an identified author, there must be an effort to locate copyright owners or heirs through local sources. This would include steps such as consulting the local telephone book, or contacting local institutions as indicated by the source material. For example, if diary entries indicate that the author was a member of a local church, contact that church to see if anything is known about descendents. These efforts must be documented: photocopy pages of directories consulted; for phone calls keep records on time, date, person contacted, and what information they gave.

For anonymous unpublished materials, there must be an effort to determine if other local institutions can supply information. This might include steps such as consulting the local historical society, or local institutions that are depicted or described by the material, such as a school, church, civic organization or business. Document your activity. If these good-faith efforts fail, you may proceed with digitization.

For published materials, there are two possibilities. If the company that owns the copyright still exists, contact them or ask MSU to contact them. Most publishers will respond to inquiries about copyright (although they might say no). If the company is no longer in business, ask MSU to assist. Our staff have experience in tracing successor companies and will keep appropriate documentation of their efforts to local a copyright owner. If these good-faith efforts fail, you may proceed with digitization.

You should also be aware that making an unsuccessful good-faith effort to locate copyright holders does not mean that your library now has unlimited rights to reproduce and display the digitized materials. If the real owner is ever identified, he or she will have the right to ask you to remove the materials from the web.

Some published items have no copyright notice or printing date, so the publication date must be estimated. What would be considered sufficient evidence to assume that a published item was published early enough to be digitized without permission?

For materials published in the US, the year 1923 is a "threshold" date. Items published before 1923 are in the public domain; items published in 1923 or after are still protected. You should assume an item is still protected unless you have evidence to support an plausible assumption that it pre-dates 1923. This may include an association with dated materials or a reference to dated records available elsewhere.

Examples of acceptable evidence:

• "the material being digitized was found in a file of clippings from 1920"



• " the material being digitized contained a postcard
  dated 1922"



• " library donation records for 1916 include an entry for an item matching the description of the material being digitized"



• "an article being digitized mentions an event that
  occurred in 1918"



• "obituary for author of material being digitized
  is dated 1923"

Examples of unacceptable evidence:

• "book mentions World War I but not World War II"
  (item could have been published between 1923 and 1939)
  
  
• "author of material died in 1936"
  (item could have been written in last 13 years of
  author's life)

As always, document the sources of your evidence or the reasons for your assumption that an item is in the public date.

What copyright status should be assumed for unpublished, anonymous works?

For unpublished materials that originate in the US, copyright protection continues for 70 years after the death of the author (or other creator, such as photographer.) This makes copyright status more difficult to determine than for published items. Date of creation can often be estimated from content or subject matter, but if the work is anonymous there is no way to determine if the creator died before 1933.

A conservative approach would be to consider that an item is still protected if its content or subject matter indicate that it was created after about 1870. This assumes the author may have lived to about 80 and have been as young as about 20 when the material was created.

A liberal approach would be to consider than an item is in the public domain if its content or subject matter indicate that it was created at least before 1933. This assumes the author did not live long after the material was created.

A moderate approach would be to assume that an item is in the public domain if its content or subject matter indicate it was created before 1900. Items created after that date should not be digitized until a good-faith effort has been made to identify copyright owners.

The copyright status of an item often depends on whether it is published or unpublished. Some historical items like photos or diaries might have been reproduced and published, though the library owns the original. Would this make any difference to the copyright status of the original artifact?

If a library owns the original of an item (such as a photo) that was later reproduced in a publication, and that publication is still protected by copyright, then permission is needed to digitize the original.

For manuscripts, diaries or other material that seems to be unpublished, if there is an author or title, check WorldCat and the LC Copyright Office files to see if the item was published. It is possible that the library owns a manuscript version of something that was published in another format. You should keep a record of your searches to document that you did try to discover whether the item was published.

WorldCat is available through the Michigan eLibrary (MeL). The LC Copyright Office files may be searched through a new interface, available at http://www.copyright.gov/records/, or through the traditional LOCIS interface.

Does the library have to do anything to prove that an item was NOT published or reproduced in a publication?

The source of an artifact can be used as a reasonable guide to determining whether it is published or unpublished. Loose photos from someone's attic or an original handwritten diary are most likely unpublished, but again, if there is an identifiable author or title, you should check WorldCat and the LC Copyright Office files to confirm non-publication.

You should assume that items like a mimeographed history of a local institution or a pamphlet advertising a local event were probably published. Publication, in the legal sense, means that an item was distributed to an uncontrolled public. Anything that might have been available for sale or given away free should be considered published unless you have documentation proving otherwise.

Is the copyright to a personal letter held by the writer of the letter or the person it was written to, or both?

The copyright is held only by the writer of the letter. However, access to the letter is controlled by the person who owns the actual letter. This may be the person to whom it was written, one of their descendents, or someone else entirely. That person may legally refuse permission for the item to be digitized even if they don't own the copyright.

Last updated: December 9, 2003