Copyright and Unpublished Material

An Introduction for Users of Archives and Manuscript Collections


An informative resource for every archives, this brochure is available in print to help answer questions you or your users have about archives and manuscript collections that may be protected by copyright. The brochure is packaged in bundles of 25 and can be purchased via the SAA Bookstore.

This text is intended to answer questions you may have about archives and manuscript collections that may be protected by copyright. Because copyright law is constantly evolving, this text is provided for introductory and educational purposes only. It is not intended to be a complete discussion of the subject and is not a substitute for qualified legal advice. Other countries have different rules; this document applies only to U.S. law.

Frequently Asked Questions

I want to use material from the archives. What do I need to know?

U.S. Copyright law governs, among other things, using copyrighted material in research papers, published books and articles, web pages, exhibits, plays, songs, etc. Ultimately, you are responsible for determining whether you need permission to make use of a work.

What is protected?

Copyright protects works of original authorship the moment a work is fixed in some tangible form. Exceptions are works produced by the U.S. government and some state governments. Under U.S. law, the simple act of fixing the work in a “tangible medium” is sufficient to establish the creator’s copyright in unpublished material—no copyright statement (e.g., © 2014) is mandated, nor does the item need to be registered with the Copyright Office. The law distinguishes between published and unpublished material and the courts often afford more copyright protection to unpublished material when an asserted fair use is challenged.

How can I tell if something is published or unpublished?

The law defines “publication” as offering for distribution or actually distributing copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Publication has been interpreted by the courts as distribution to numerous individuals who are under no explicit or implicit restrictions with respect to the use of the contents. An informational text, such as this one, is published if it is distributed to the public, whether or not it is offered for sale. Generally, material is considered unpublished if it was not intended for public distribution or if only a few copies were created and distribution was limited.

How long does copyright in an unpublished work last?

Copyright in an unpublished work lasts for the life of the author plus 70 years. If the author (or the author’s death date) is unknown or if the author is a corporate body, then the term is 120 years from the creation date for the work. Therefore much unpublished material in archives or manuscript collections is likely to still be under copyright.

Can the archives or manuscript repository give me permission to publish an unpublished work?


History Channel filming for “The True Story of Hidalgo,” (Left to right): Basha O’Reilly and CuChullaine O’Reilly from The Long Riders’ Guild and American Heritage Center Associate Director Rick Ewig, 2003. AHC Photofile # DSC02804.jpg. Courtesy of American Heritage Center, University of Wyoming.

The fact that the archives or repository holds the physical document does not mean it also owns the copyright. Many donors or sellers, when they transfer collections, retain the creative rights to the material for which they are the rights holder. (Archives that serve as the repository of record for materials created by a parent organization will be able to communicate the organization’s procedures for managing copyright permission requests.) Only when rights holders assign the copyright in the work to a repository can the latter (and only it) give you permission to publish. But even when copyrights are transferred along with a collection, the repository may not receive copyright in all of the material, whether analog or born-digital. This is because rights holders can transfer only the copyrights they own, and in most cases donors will own copyright only in material they created. For example, donors would generally own copyright in photographs they took or in letters they wrote to others; however, they may not own (and therefore could not transfer) copyrights in photographs taken of them by someone else or letters they received written by others. The original rights holders may also have transferred copyright to a third party, such as a publisher, and thus no longer own the rights to works they originally made.

Note that the repository that owns the item you wish to publish may charge fees for publication (even if it may not own copyright in the work) in addition to any fees a rights holder might charge. Any such stipulation is separate from copyright permission and is determined by a repository’s use policies.

Why can you give me a copy of an unpublished work but not give me permission to publish it?

Sections 107 and 108 of copyright law provide archives and libraries with a limited authority to make copies of copyrighted material without permission under certain conditions, such as when the copy is to be used for private study, scholarship, or research.

Is there any way I can use an unpublished work without permission from the copyright holder?

The fair use doctrine (as codified in Section 107) recognizes that there are uses that do not infringe on the rights of copyright holders and provides a defense for the use of copyrighted works without permission from the copyright owner. The statute does not say what is or is not fair. Rather, courts evaluate fair use cases based on four factors, no one of which is determinative in and of itself:

  1. The purpose and character of the use: How are you using the copyrighted work, and in what context? The statute lists several examples of the kinds of uses that might be fair—“criticism, comment, news reporting, teaching, scholarship, and research.” This list is not all-inclusive and some uses that fall under one of these might not be fair. Commercial uses can be fair, but courts tend to give more weight to noncommercial uses. Recently, courts have primarily been asking if the use is transformative; does it “merely supersede” the original work or does it add “something new, with a further purpose or different character, altering [it] with new expression, meaning, or message?” [Campbell v. Acuff-Rose Music]
  2. The nature of the copyrighted work: Is the work you are using published or unpublished? Is it highly creative or primarily factual? Courts give more protection to works that are “closer to the core of copyright protection,” such as unpublished or highly creative works. [Campbell v. Acuff-Rose Music]
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: There is no predetermined amount of a work that constitutes fair use or that is automatically an unfair use. Determining factors include how much of the copyrighted work was used, the relative importance of the amount used to the work as a whole (whether the portion used constituted “the heart of the work,” for example), and whether the amount used was justified by the purpose and character of the use. [Harper & Row v. Nation, Campbell]
  4. The effect of the use upon the potential market for, or value of, the copyrighted work: This factor assesses how, and to what extent, the use damages the existing and potential market for the original. Courts have recognized that where uses are highly transformative under the first factor, the affected markets receive less protection. [Castle Rock v. Carol]

How can I determine if a proposed use is fair?

Determining that a use may be fair involves conducting an analysis along a continuum of “less likely fair” to “more likely fair.” Helpful aids in conducting such an analysis can be found at the resource page of the Society of American Archivists’ Intellectual Property Working Group.

Could I be sued for using someone else’s work even though it seems a fair use?


Victor II model external horn phonograph. Eric Harbeson. Courtesy of American Music Research Center, University of Colorado Boulder.

Yes, it is possible. Because of the case-specific nature of fair use, you can only know whether a use is fair if a court rules it to be so. However, several authorities have produced guides to help people take advantage of this vague, but very useful, exception to copyright. If there is a question about whether a particular use is fair, it is always safe to seek permission.

What if I cannot determine who owns the copyright or if I am unable to locate a known copyright holder?

The Society of American Archivists’ Intellectual Property Working Group has produced a document that is designed to provide guidance on this dilemma—commonly known as the Orphan Works problem—and that suggests search strategies for identifying the creator of a work, identifying the work’s copyright holder, and for locating the copyright holder. 

 


This brochure was created by the Intellectual Property Working Group of the Society of American Archivists.
It is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.