I’ve been doing a lot of research remotely over the last several years. Libraries, museums, historical societies, and even some historically-minded Facebook groups have done fantastic jobs of digitizing documents for immediate access from literally anywhere. Of course, digital collections have a long way to go—often times tiny fractions of collections have made it onto the interwebs. But still, the amount of legitimate historical research (meaning NOT some 19 year old’s YouTube video about what “they” don’t want you to know) that can be conducted while sitting on the toilet is nothing short of astounding.

That said, it’s created a bit of a grey area in lay-person legal understandings that I wanted to spend a few paragraphs addressing because, well, it keeps stressing me out and I go and revisit it. So I’m going to briefly blab about it so that I or anyone else who may be wondering can have a quick reference tool to understand the implications of using digitizations of antique (Or even modern, when it comes to documentary research/production) documents or images that you’ve obtained from online research collections. 

There are several categories that are constantly swirling around my head. Namely copyright, fair use, and public domain. 

As a rule, anything you’ve created is automatically copyrighted. This post, my videos, the video of your cat stealing your scrambled eggs. They’re all entitled to certain protections under law.

Where you can “fudge” it a little is with what’s referred to as fair use. Fair use protects artists, journalists, researchers, and documentary film makers from being sued when including newsreel that isn’t there own in what they’ve produced. You can’t just take a newscast and claim it’s yours, though.

For example, in Pedal for Pongo, while discussing the problematic history of pollution in the United States, I talk about a toxic fog that hung in an area and wound up killing people. In talking about what happened, I obtained (from news network YouTube channels) news report footage from the event and overlay it in my film, with my voiceover, which then snaps to the original voiceover. In the context it helps to tell the story of the development of environmental protection laws in the United States, and how their development here led to more polluting elsewhere. 

It wasn’t all my original content, but I had sufficiently transformed the otherwise copyrighted material in such a way that it could be considered fair use because I wasn’t merely lifting it from the news network and plopping it into mine and saying it was my own. Additionally, nonprofit and educational use of these types of materials is more often considered fair use. 

As such, when making documentaries you have a pretty good bit of wiggle room when it comes to using someone else’s footage. Keep in mind though that if you get ahold of something that’s unpublished and use it in your own work, you’re not only horrible, you’re less likely to get a favorable ruling in the event it came to that.

And now for the public domain stuff, which is a big part of what I’ve been bumping into lately. All copyrighted works in the United States created before 1925 are considered public domain. That’s a lot. That’s…pretty much anything of use to me in what I’m doing. All the Lewis Wickes Hine photographs that I included in Rhode Island’s Industrial Revolution fell into that category. And there were a lot. I found them in the digital collections of the Library of Congress, and as they were produced in the first decade of the 20th century, they’re now fair use. 

What gets confusing though, and what I’ve really wanted to clarify in this post is: what about the digital reproductions?

If I have a bunch of antique magazines or whatever, and I spent like 2 weeks carefully scanning them as PDF documents and post them on this site. Then you come along doing a research project and those magazines happen to be on the exact topic you’re researching and you’d otherwise not have found them, can you include them? Would those scans then be MY copyright, as of the date I scanned them?

No. 

Courts have ruled that digitizations—whether scans, photographs, video, microfilm, slides, or whatever else—are considered “simple reproductions” and therefore not a new intellectual property. I’ve encountered digitizations that have a watermark that says “Copyright 2017: So and So.” There is legal precedent that this would not hold up in court.

I would still give them credit for it, I would also never claim to have produced it on my own. But for educational purposes I would not hesitate to use that material. The watermark might appear less than professional and so I’m more likely to include it as bonus material or just use that information and not include that graphic, but we are 100% within our rights to use any digitized or simply reproduced materials that were previously published.

 

However, this may not apply to personal letters and documents that may be held in a library/university/historical society archive. I’ve taken loads of pictures of old documents that I was required to use a “for research purposes only” tag within the photo itself. I would potentially include it in a documentary or blog (I don’t think I would have to, there’s always more material to find), but I would NOT put it on my web store as a reproduction of an antique letter from this dude to his buddy. 

Also some people add watermarks or other identifying features to listings on eBay or other sales platforms. The reason for this is obvious—it’s literally their thing that they’re selling and they’ve orchestrated the image so that someone can’t just take the image and claim their listing it. If you want to include something from eBay, I’d suggest buying it, contacting the seller to ask for clean images to include in whatever your project is, dealing with “BIG OL’ JEDD’S WILD EBAY STORE” running diagonally across the screen in big purple letters and feeling a bit awkward whenever anyone see it…or just finding a different source. There are always, aaaaaaaalways more sources.

Anyway, this is partly for my own reference, and hopefully y’all get some piece of mind from it. But it’s worth remembering that whether you’re within your legal rights or no, someone can still get angry and give you a headache over this. They may be laughed out of court, but you’ll still have to waste your time going. I’ll add some references once I find them (Wikipedia honestly has a pretty good copyright/fair use/public domain primer), but as of now, this should do.