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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 If you don’t know who created the materials or the year of death, then any unpublished work created before 1896 is in the public domain.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.
- If the work was first published before 1923, let’s say in a newspaper, it is in the public domain.
- If the work was first published during or after 1923 but before 1977, then the copyright may or may not have expired depending on whether the copyright was registered and the work was marked with a copyright notice.
- If the work was created in 1977 or later, assume the copyright is still valid.
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:
- commentary
- critique
- education
- parody
- and for a transformative use under the doctrine of fair use.
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.
Photo: pixabay.com
How did you go ? Did you find an answer ? I am in a similar situation only our real names were used as well as photos without our permission
My sister in law self published a book in which she used family photos containing my husband.
She did not tell us about the book or ask his permission to use the photo.
We found out through a posting she placed on Facebook. The book itself is extremely inflammatory ( it is her memoir) and she levels accusations of abuse against my father in-law who thank goodness is deceased.
Because of the details in the book ( she did not use names but anyone can figure it out) my husband and his other siblings have now had their deep dark pasts drug out from under the bed and aired on the clothes line.
The family is from a small town and their Facebook friends are people that they went to school with so now all these people have access to some pretty unfair perceptions of my husband and father in law.
Is this even legal?
Outstanding blog, great resource. Many questions answered, thanks. I have a question I’ve not seen here.
My sister and I are writing a book about our father, who was a veteran of three wars and a POW. Our cover photo is a head-and-shoulders portrait of him in uniform. In the book, we have mainly family photos, including some in uniform while he was in Italy, Korea, Vietnam, and in ceremonies stateside.
Editors at the “self-publishing” house Lulu have told us we need written prior permission from the US Army to use these photos, because they say the medals and insignia are trademarked by the Army. I say Fair Use. What say you?
Lulu is being downright silly. If the metals are part of family photos and not used as a trademark, then you are not using them in a way that infringes on any trademark interest. Plus, medals and insignia would not be protected by trademark since they are not associated with the sale of a good or service.
If Lulu persists, then I suggest you terminate your agreement with them and use another company.
Melpub here again: if one publishes a memoir in an American state–likely New York, in my case–is it the laws of that State exclusively that govern copyright use? (And where might I find out, preferably without spending a fee I can’t afford now on a specialized “arts” lawyer?) I’m thinking of the Augusten Burroughs bestselling memoir, Running with Scissors, published by Picador in the UK but I believe first by Farrar, Strauss in New York. When a memoir is very successful, it can get a UK publisher and translations, and then there are many jurisdictions. He did face a lawsuit, and won, but had to call his book “a book” and not “a memoir” as part of the agreement.
By the way . . . think you are also a Brearley girl. I was class of 1975. Feel free to email if you wish.
Melpub,
Yes, I am a Brearley girl, Class of 1973. Nice to meet you virtually.
A work is covered by the copyright law of the country in which it was created or sometimes where is was first published. So a work created in the US would be protected by US copyright, and that copyright would be recognized in most of the world due to international treaties. Enforcing copyright laws in another country can be too costly, which is why piracy still happens. But that’s another can of worms.
Many thanks. What I want to use are letters, never published, written by persons now deceased. I don’t want to go for any formal or informal permissions by the families of these persons–some are relatives, some not–because they may feel the letters, or my interpretation of them, do not appeal to them. Letters: written and sent in New York state between 1971 and 1990. Problems?
Melpub, I just realized I missed your comment. There is no one answer that applies for all the letters. You’d have to go through the process I describe in the post for each letter.
I had no idea that copyright last so long!!
My Guess is 99% of the time even though its not fair use, the family will probably won’t go after the writer or the person using the images.
Thanks for sharing
Mat, Yes, copyright lasts a ridiculously long time, thanks to Disney. They have successfully lobbied to extend copyright to protect Mickey Mouse, among other characters.
I just googled it. Indeed.
For anyone that cares to learn more search for Copyright_Term_Extension_Act
Such a shame that politicians create laws and stuff mainly to protect the rich and wealthy.
I sure do hope these rules apply to New York State or to a former New Yorker now residing in Europe.
Melpub, The rules in Europe are similar, but not exactly the same. If your book will be be published outside of the U.S, and you are concerned about some of the materials in your book, you should consult with counsel in the country of publication.
Hi, I’m writing a book and copies some short quotes from authors who have passed away over 50 years ago. Some died in the 18th century. Is it correct that you can copy from a book when a person who wrote the book has died 50 years and above?
If the work was published before 1923, you’re in safe territory. But after that, it depends on whether the work was published, registered, etc.
Your help is excellent. I have written a story of my home town and have numerous pictures and stories to tell. Is there any legal violation for me using these in my book?
Norma, You may use the name of your home town. If you took the pictures, then you may use those as well, although there are some privacy limitations you should consider. I wrote about them here — http://writenonfictionnow.com/how-to-use-images-of-people-without-violating-privacy-and-publicity-rights/
For the most part, you may talk about real people and real events in your work. You should be concerned if the information is quite negative. Here’s another link about that. http://helensedwick.com/how-to-use-real-people-in-your-writing/
Thanks for this article, Helen. I have a question. I have inherited photos from my late husband taken in Czechoslovakia and Russia between 1914-1920. I do not know who the photographer was or if the photos were ever published. I have a request for use of some of the photos in journal articles and books. Do you have any suggestions for me on how to handle this? Thank you!
Sandra, You have a classic orphan works problem made worse by international law issues. Since the photos were created in Russia and Czechoslovakia, the laws of those countries would apply. Honestly, I have no idea what the law in those countries would have been at the time the images were created or since. Both countries have gone through revolutionary changes. My guess is there is little risk in using them.
I don’t understand what you mean when you say “I have a request for use of some of the photos in journal articles and books.” Who are you making the request to?
Thanks, Helen. To answer your question: I have no plans to use/publish the photos at this time. However, an author/historian has contacted me requesting to use the photos in journal articles and books he will have published.
Sandra, You should explain the situation to him and say you don’t have the right to either consent to or refuse to consent to his use of the photos. You don’t know who owns the copyright or even if the copyright is still valid. If he wants to use the images, it’s at his own risk. You don’t want to give him the impression that he is protected because you gave him permission to use the photos. Make sense?
Yes, thanks. That makes sense. Does it make sense to ask for recognition for sharing of the photo? My reason for sharing was to have a deceased relative in the photos acknowledged.
Sandra, Certainly you can and should ask for that.
This article was very informative. I do have a question. I buy old photographs from yard sales and flea markets. Is it okay to post the picture and write a fictional story about the photo. I have no idea who took the picture, or who the people are in the photos. Is this considered fair use? Thanks for any information.
Barbara,
Good question. Are you buying old photos or old magazines and pulling the photos out of them?
Using photos out of a magazine or other publication is risky. Someone thought enough of the photo to publish it, so there could be a photographer or a publisher out there who could feel your use is infringement.
If the photos are unpublished private photos, then someone may own the copyright in the image. It may be impossible to figure out who, so you have a classic orphan works problem.
Fair Use is determined on a case-by-case basis by a judge, so there are no guarantees. Your use of the photo to create something new and transformative weighs in favor of it being fair use.