In a mini-rant on one of the ACW boards yesterday, a publisher of an excellent website raged about someone stealing and re-posting his “copyrighted” photographs from the site. The alleged perpetrator was characterized in vulgar terms. All of these online photos, as far as I can tell, were created during the 1860s, and the pictures in question would have been of Civil War general officers.

Putting aside the moral obligations for crediting sources, or respecting someone’s family pictures, or the sanctity of a private collection, or whatever else might be in play, I have a fundamental problem with his complaint of copyright infringement.

How can our angry friend claim to own the copyright on these pictures? They are, by my reading of US Copyright law, in the public domain. Public Domain = not copyrightable.

There are two general scenarios concerning ACW-vintage materials (not just photos) which apply here, both covered by the law:

  • Anything published before 1923 is in the public domain. Period.
  • Anything created, but not published, before 1978 was protected until 2003 or 70 years after the original creator or author’s death, whichever is later.

Do the math for a theoretically unpublished Brady (d. 1896) or Gardner (d. 1882) or Unknown (d. before 1936) image, and see where it falls. Yup – copyright expired.

It’s all public domain now.

So, I could own the originals — CDVs, for example — or own copies, or display them online, or publish in books, but can’t own the copyright. I might have gone to considerable trouble and expense to obtain them, or scan and post them online, and feel I’m owed something as a result of all that work. I may have discovered a previously unknown cache in a trunk in the attic or at the West Podunk Historical Society and want to protect my find. Being owner of rare original photographs, I can even (shudder) refuse to display or otherwise share them.

But I can’t copyright them.

But what about great-granddad Josiah? I have his picture taken in Camp in 1861. I’m his heir … don’t I own the copyright on his image? I’m family, for crying out loud. Sorry. See bullet two above.

I’m not a copyright lawyer, but I think this is straightforward.


There’s material for a post or two in the related issues of citing and giving proper credit, the ethics of using web resources, how or when historians should “protect” their work, and the whole can of worms around fair-use in research and scholarship. I’m also curious about how a museum or other collecting institution can copyright materials of the Civil War era, but that’s probably over my head. I’ll save these topics for later.


For Reference

The various scenarios in US Copyright law concerning public domain are nicely summarized in a chart originally from Prof Hirtle at Cornell, and now [2015] maintained by the University.

Some FAQs from the US Copyright Office [as of 2006]:

What is Copyright?
Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

Who Can Claim Copyright?
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.


Works Originally Created and Published or Registered before January 1, 1978
Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105-298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years.

Works Originally Created before January 1, 1978, But Not Published or Registered by That Date
These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120-year terms will apply to them as well.

– US Copyright Office, Copyright Basics

6 Responses to “Copyright, the public domain, & digital history”

  1. Eric Wittenberg says:

    Excellent post Brian, and you see the copyright laws just as I, an attorney of 20 years’ experience, see them.


  2. Brian Downey says:

    Thanks Eric – good to hear from a pro.

  3. David Woodbury says:


    I think your summary of copyright laws is right on the money, and the propriety of lifting images from other sites is often a question unrelated to copyright.

    But there is a question of “ownership” and permissions. If a museum, for example, owns an original, pre-copyright portrait of Jefferson Davis, I could not simply reproduce it in a publication without permission. And in that case, “publishing” something online may be indistinguishable from conventional publishing. All that said, it’s easy to restrict oneself to images known to be in the public domain, including everything at U.S. government web sites.

    There is such a thing as a new materials copyright, for example, when Bob Younger took an old tome, reset the type, added an intro and index, and possibly fixed typos, etc. One would have to quote the original text to avoid infringement. That might apply to otherwise public domain images on the internet, if the poster has scanned the image and enhanced it with software to make it more crisp, or to lend better contrast. In that case, it’s effectively a new work, but I don’t know how the law applies.

    Where things really get gray is determining how much text constitutes “fair use.”

    Good post.

  4. Brian Downey says:

    Hi David,

    Thanks for the comment. There are certainly a host of other issues about using historical materials online, too.

    I wouldn’t expect your example of cleaning up or enhancing an image, by the way, to qualify it as a new image for copyright purposes. Courts have generally found these to be “slavish copies”, essentially duplicates of the original – not different enough to be derivative works entitled to copyright protection. You have to “warhol” an image before it’s distant enough to be new (and art), I guess.

    I don’t understand the nuances of “ownership” as your Davis portrait example raises, either. Instinctively, I feel there’s something wrong with the NY Public Library requiring a fee to publish a copy of a picture (as above) from their collection which is in the public domain. I resent the constriction of historical information, but I recognize they have costs to recoup.

    Which is heading for fair use. A topic I feel strongly about, but will save for another time …


  5. Digital History Hacks » Blog Archive » Behind the Scenes of a Digital History Site says:

    […] At 10 years of age, AOTW is an obvious labor of love and a source of ideas and inspiration. Since March of this year, however, Brian has also been blogging at behind AOTW, “the backwash of a digital history project”. The combination of the AOTW site and Brian’s blog provide the student of digital history with an unparalleled view behind the scenes of a successful project. In March, for example, Brian posted about footnotes in online history, allowing the reader to compare his code with the implementation on the AOTW site. In another post that month, he discussed copyright and the public domain, something that he has a more-than-academic interest in. In April he laid out a top-down strategy for practicing digital history, continued in June. In July, he discussed the question of whether a site should host advertisements in “Pimping the History Web?” and reviewed some 19th-century online works from the Perseus Project. In August, he implemented a timeline widget and gazeteer for AOTW. This month he has a series of great posts to help someone get started without “an IT shop or a CHNM”: tools for putting history online, PHP+database+webserver and jumping in with both feet. […]

  6. behind AotW » Blog Archive » Craighill: staff officers, a lighthouse, and copyfraud says:

    […] For pointers to more about the Public Domain and US copyright Law, see an older post on this blog. […]

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