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Questions & Answers — Copyright Column

by | Jul 8, 2024 | 0 comments


Column Editor:  Kyle K. Courtney  (Director of Copyright & Information Policy, Harvard Library) 

Against the Grain V36#3

QUESTION FROM AN ARCHIVIST:  Part of some remarkable collections include personal letters and correspondence from various individuals.  The donor of a particular collection was the recipient of the letters, but not the author.  The author of the letters in the collection was written by a third person that mailed the letter to the donor.  From a copyright perspective, who is the “owner?”  And were any rights transferred when the donor gave the collection of the personal correspondence to the archives?

ANSWER:  This is a very common question, and one that comes up frequently in collections from donors that include letters and other personal correspondence, which are highly useful to patrons including scholars, researchers, biographers, and historians.  As an archivist managing collections that include personal letters and correspondence, understanding copyright ownership and the implication of donation is crucial.  This is particularly important when the letters were authored by one person, sent to another, and then donated by the recipient to the archives.  To address these concerns, we must delve into the nuances of copyright law regarding authorship, ownership, duration, and transfer of rights.  However, the basic answer is this:  Possession of a 3rd party’s copyrighted work, like a letter, does not convey copyright ownership.  While the saying goes that “possession is nine tenths (9/10) of the law” — that last one tenth (1/10) is often copyright, and it is something that should be assessed.

Under U.S. copyright law, the author of a work is generally considered the copyright owner.  In the case of personal letters, the person who wrote the letters — the author — holds the copyright, not the recipient of the letters.  This means that the author of each letter retains the exclusive rights to reproduce, distribute perform, display, and create derivative works based on their original correspondence.  So, for example, if Julie writes a letter to Jack, Julie is the copyright owner of that letter.  Even though Jack possesses the physical letter, Julie retains the copyright to the contents of the letter.

It’s important to distinguish between ownership of the physical letter and ownership of the copyright.  When the donor (Jack, in our example) received the letters, he became the owner of the physical objects (the paper letters).  However, this physical ownership does not transfer the copyright of the letters.  Jack can read, keep, or sell the letters, but he does not have the legal right to reproduce or publicly display their content without permission from the copyright holder, Julie.

For the copyright to be transferred to the archives, the original copyright owner (the author of the letters) must explicitly transfer those rights, typically in writing.  Such a transfer could include all or some of the rights associated with the work.  Without such an explicit transfer, the copyright remains with the author.

In the context of archival donations, if Jack (the recipient) donates his collection of letters to the archives, this donation does not automatically transfer the copyright to the archive.  The archives receive the physical letters, but the copyright remains with Julie (the author) unless Julie has explicitly transferred her copyright to John or directly to the archives.

So, there are implications for archives in accepting collections with 3rd party personal correspondence.  When receiving a collection of personal correspondence, archivists must be mindful of these copyright issues.  The archives can legally hold and preserve the physical letters, but their ability to reproduce, publish, or display the contents is governed by exceptions to the copyright law, including exceptions such as the “library and archives exception” under 17 USC 108, and fair use, under 17 USC 107.

Yet, there is one more wrinkle in this question that is also worth mentioning.  In many scenarios, it can be helpful to determine if the copyrighted work is still under copyright or in the public domain.  In personal correspondence situations, this is defined by the work being considered “published” or “unpublished” under the copyright law.

In copyright law, the distinction between published and unpublished works is significant and has implications for the length of copyright protection, and certainly how the rights of these works are treated, including personal correspondence in archival collections. 

A work is considered “published” when it has been distributed to the public by sale, transfer of ownership, rental, lease, or lending, or offered for distribution to a group of persons for purposes of further distribution, public performance, or public display.  A common example of publication is making copies of the work available to the public at large.

An unpublished work is one that has not been distributed to the public.  Private communications, such as personal letters, correspondence, and diaries, typically fall under this category.  Unpublished works are often created and kept within a private context without the intention of public dissemination.

The distinction between published and unpublished works affects the duration of copyright protection.  One of the best resources for finding the rules about the duration of copyright is Cornell University Library’s Copyright Services chart “Copyright Term and the Public Domain in the United States.”  (Many of my colleagues refer to this as the “Hirtle Chart” because it was first made famous by Peter B. Hirtle, legendary archivist and copyright expert, in an article called “Recent Changes to The Copyright Law: Copyright Term Extension,” Archival Outlook, January/February 1999.  As Peter always notes, his chart is based in part on Laura N. Gasaway’s chart, “When Works Pass into the Public Domain” which was hosted at University of North Carolina.)  The chart is updated annually by Cornell University Library and continues to be a “go-to” resource for duration and public domain questions.

According to the chart, for unpublished works created after January 1, 1978, the copyright term is the life of the author plus 70 years.  For works created but not published or registered before January 1, 1978, the copyright term is the life of the author plus 70 years, but it had a minimum term of protection until at least December 31, 2002, and if published before this date, it extends to December 31, 2047.

Works published before January 1, 1978, are subject to different rules based on whether the copyright was properly renewed, typically lasting for 95 years from the date of publication if the renewal term was secured.  Works published after January 1, 1978, receive the same protection term as unpublished works created after this date:  the life of the author plus 70 years.

All of these terms have implications for personal correspondence and archives.  In the context of personal correspondence and archival collections, understanding whether the letters are considered published or unpublished affects how they can be used and managed.  Now, most personal letters and correspondence are considered unpublished works because they are typically shared privately between individuals rather than being distributed to the public.

As unpublished works, these letters enjoy robust protection, potentially lasting for the author’s life plus 70 years, and they are often subject to more restrictive rules regarding reproduction and distribution.

So, when personal letters are donated to an archive, the distinction between published and unpublished is crucial.  Since these letters are generally unpublished, the archive should respect the long duration of copyright protection associated with unpublished works and inform users as to their copyright status if asked.  Even if the physical letters are donated, without a transfer of copyright, the archive is limited to preservation and private study uses, unless fair use exceptions apply (e.g., for scholarship, research, criticism, or commentary).

Here are a few considerations for personal correspondence in archival collections:

• Verify Copyright Duration/Expiration: If you can, determine whether the letters are published or unpublished using the Hirtle chart.  As noted above, most personal letters will be classified as unpublished.  If possible, identify the authors and ascertain the status of their copyrights, including the duration and any potential heirs.

• Consider Copyright Exceptions or Obtain Permissions: If the letters are unpublished and still under copyright protection, and the archivist’s uses are outside of any of the copyright statutory exceptions (like archive reproduction, preservation, or fair use) an archivist might consider written permissions from the authors or their estates to use the content beyond preservation and private study.  As always, it helps to ensure any copyright transfers are documented in writing, clearly specifying the rights that were transferred to the archive.

• Educating Donors: Informing donors about the distinction between physical and copyright ownership is key.  There is a plethora of misunderstanding about copyright and possession.  Exploring whether donors can help with copyright transfers from the original authors to ensure the archive can use the content more freely could be a useful way to provide education and understanding.

• Adhere to Copyright Law: As always, archivists should respect the limitations imposed by copyright law on unpublished works.  However, they should also clearly understand that access for private research, study, or preservation is well within the rights of the archives.  So, an archivist should utilize fair use or library and archives exceptions judiciously, understanding the specific conditions under which they apply.  Patrons may make uses of the works, but archives are merely providing access to these works for personal study or research.

In closing, this question has multiple points in which an archivist can explore many facets of copyright and personal correspondence.  When a collection of letters is donated to an archive, only the physical letters are transferred unless there is an explicit copyright transfer.  Archivists should ensure they understand the copyright status of donated materials and document all agreements while making the collections accessible within legal boundaries.  This careful management ensures compliance with copyright law and respects the intellectual property rights of the letter writers.  Finally, the distinction between published and unpublished works in copyright law significantly impacts how personal correspondence is managed within archival collections.  Unpublished works, such as personal letters, enjoy extended protection, necessitating careful handling to ensure legal compliance.  By understanding these nuances, archivists can effectively navigate copyright issues, ensuring both the preservation of valuable historical documents and understanding the role of copyright in an archive’s access-based mission.  


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