[APG Public List] Copyright question

Ray Beere Johnson II raybeere at yahoo.com
Wed Nov 25 11:33:34 MST 2009

     I AM NOT A LAWYER! The following is my opinion as an informed layman interested in IP issues.
     That out of the way, there are at least two points to consider. First, _if_ it can be shown that creation of the image involved enough creative work to satisfy the law, the image itself would be copyright, regardless of what it included. Only an IP lawyer could really tell you how that applies in this situation.
     Second, _manuscript_ material written _before_ the "safe" date of public domain works _can_ be copyrighted in some cases. That _could_ apply to the content. I _believe_ the copyright owner, if the original creator is dead, is the _owner_ of the manuscript. (In this case, ultimately, the winning bidder on E-Bay.) Again, only an IP lawyer can tell you for certain if copyright could apply to this manuscript, and who the owner would be.
     To be on the safe side, though, unless you simply want to transcribe the content for your personal notes, which would _probably_ fall under fair use (since the content is not being sold, etc.), you may want to either enter your own bid on this item, avoid using the material at all, or secure permission (which, since you might need to contact both the seller - for the image - and the new owner - for the content - would be complicated). Since, if you do violate copyright, even if the rights holder is unlikely to learn of it or sue, it could be an actual - or, at the very least, a seeming - ethical violation, you probably want to consider one of these options.
     One final remark. As I said, _I am not a lawyer_ and certainly not an IP specialist. However, I _believe_ there is an important distinction to consider regarding my remarks on fair use. If you are using the content in your _own_ notes, for your _own_ family, it is more likely to be fair use. If you have been researching this family for a _client_, then your use would, in effect, involve some profit - which _might_ not remove it from fair use, but would surely be considered in any determination of whether or not it was fair use, and would at least increase the chances it would _not_ be found to be fair use. And I _do_ know this much: fair use is such a murky issue, even an IP lawyer will nearly always hedge their bets, unless it is a very unambiguous situation.
                         Ray Beere Johnson II

--- On Tue, 11/24/09, finleyc at sonoma.edu <finleyc at sonoma.edu> wrote:

> [...] a postcard being advertised because it contains a Christmas stamp 
> for the year 1909. [...] The content is what interests me. It was 
> written by Lizzie Jones Armstrong to her cousin. This is a family I 
> have been researching for the last five years. Can I use an image of 
> this postcard without worrying about infringing on copyright?


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