|This is a guest blog from Attorney Helen Sedwick, who addresses legal implications of the materials writers often use. When working with an established publisher, its lawyers will vet your work, but it is still wise to know these points ahead of time. Self-publishers are more vulnerable and need to keep informed to avoid legal difficulties. Her crisp and clear explanations are a good start.
I was inspired to write my novel Coyote Winds by my father’s memoir of growing up during the Dust Bowl. His stories were full of authentic details, such as using summer hail to make ice cream and shooting rabbits while sitting on the fender of a moving pickup. I sprinkled these gems throughout my novel. I even posted 1930s photos of my father on my blog.
I am not alone. Many writers pull out dusty scrapbooks and shift through faded letters to recreate the past.
What are the legal implications of using these materials and stories? After all, someone else snapped the photos, wrote the words, lived the lives? Are writers infringing on someone’s copyright or other rights? Would it be better to keep these treasures hidden from the world, languishing in stuffy attics?
In many cases, writers may use old images, letters and stories. Here’s what you need to consider.
How old are the materials?
The older the material, the less likely you will be infringing on anyone’s copyright because the material may have fallen into the public domain. Work falls into the public domain when the copyright expires. You may use public domain work without permission, but it’s a good practice to give attribution if you know who created the work.
When does work fall into the public domain? If the work was never published AND the creator died before 1946, then the copyright has expired and the materials are in the public domain. If you don’t know who created the materials or the year of death, then any unpublished work created before 1896 is in the public domain.
The rules are different for published work.
Cornell University posts a chart to help determine copyright ownership.
Most of the time, however, you’ll have no idea who took the photo or when they died. When ownership of a copyrighted work is unknown, or the owner cannot be found, we have what is called an orphan work. Tens of millions of orphan works are hidden in libraries, museums, historical societies, not to mention attics. In fact, some experts estimate that 90% of all copyrighted work is orphan work. I discussed the problem more at The Problem of Orphan Works.
So, if you have an orphan work, ask yourself …
Who are the heirs?
If the photo or letter was created by your direct ancestor, such as a grandparent or great-grandparent, consider whether you are an heir. If there was a will, that might dictate who inherited intangible rights, such as a copyright interest. But in most cases, there was no will or assets were left to the surviving spouse and descendants. After a few generations, that could be dozens of people.
If you are one of the heirs, then you may use the old photos and letters without permission from any other heirs. Actually, any of the heirs may use the work. However, if you make income from the work, you are legally obligated to share that income equally with all other heirs.
For example, assuming the photos in this post were taken by my grandfather, then I share the copyright in those images with all my grandfather’s descendants, meaning my siblings, nieces, nephews, and cousins. I do not need their consent to use the images, but if I were to make net income from the use, I would be obligated to share it with them. Since that income would be split among dozens of people, I’d need to generate quite a bit of money before anyone cared.
Is your use Fair Use?
Even if an image or letter is covered by copyright, you may use the copyrighted work for purposes of:
Generally, using a photo or letter as a small part of a larger, expressive work such as a memoir, historical novel, or history book, is considered fair use. In contrast, reproducing and selling the image as a poster and on mugs would not be fair use since the image is central to the product.
Fair use is decided on a case-by-case basis, so I can’t guaranty a court will agree with me. You have to evaluate the risk yourself. And ask how likely is it that someone will know or care about your use of the image or letter.
Using real names
Many writers ask whether they may use the names of living or deceased people. Yes, you may use real names, with some limitations particularly if the information is damaging. I talk about those limitations in What is Defamation? and its related posts.
Using family stories
What about using old family stories, such as a harrowing escape from a war-torn land or a long-fought battle against injustice?
I say go for it. You may use these stories as inspiration for a novel, in which case you’ll create new characters, events and dialogues. Or you may be reaching for accuracy in a non-fiction work. Either way, you may use stories about other people’s lives as long as you tell the stories in your own words.
For me, using historical images, letters, and stories is magical. When I look into those faces and hear their voices in letters, I feel a connection that keeps these people and their experiences alive.
Disclaimer: Attorney Helen Sedwick is licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.