Henry Murphy, Campus planning of Ginling College, 1921. Wesleyan University, Meng Collection.
Responsibly using Archival Materials
Course Guide for Religion in the Archives
Other useful guides:
Copyright Basics | Copyright for Archival Collections | Fair Use | Citing Archival Materials | Creative Commons
Copyright is a form of federal legal protection for authors of original works, including literary, dramatic, musical, and artistic works. Copyright law applies to a wide range of creative and intellectual works, including but not limited to poetry, novels, articles, reports, movies, songs, choreographed works, computer software, and architecture.
Who owns the copyright of a work?
As a general rule, the initial owner of the copyright is the person who did the creative work—the “author”. However, copyright can be transferred—the author can give or sell their rights to others. In addition, rights can be transferred temporarily by contract. These contracts are often called licensing agreements.
What rights do copyright owners have?
Current federal copyright law generally gives the owner of copyright the exclusive right to do the following, as well as the right to authorize others to do the following:
- reproduce the work
- prepare derivative works based upon the work
- distribute copies of the work
- perform the work publicly
- display the work publicly
Copyright owners may also have rights to prevent anyone from circumventing technological protection systems that control access to the works.
What works are protected by copyright?
Copyright law applies to almost all types of creative and intellectual work, including the following:
- literary works
- musical works
- dramatic works
- choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
Copyright protectable works receive instant and automatic copyright protection at the time that they are created. Works do not need to be published or registered to be protected by copyright, but they do need to be expressed and/or recorded in a fixed format.
Copyright does expire. Current copyright law states that protection generally lasts as long as the author’s life plus an additional 70 years. When a work’s copyright expires, the work enters the public domain. For works made for hire (works made for a corporation or institution), the copyright term is either 95 years from the date of publication, or 120 years from the date of creation, whichever is shorter.
What is the public domain?
A work is in the public domain if its copyright has expired or if it never met the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.
How can I tell if something is in the public domain?
As a general rule, works registered or published in the U.S. before 1923 are in the public domain. U.S. government documents are in the public domain. For all other works, some research is required to determine whether it is in the public domain. A good place to start is Copyright Term and the Public Domain.
Video: Elsa Loftis, "Copyright and Fair Use" from Lynda.com
Works cited for this section:
- Columbia University, Copyright Advisory Office, "Copyright Quick Guide"
- April Hathcock, Scholarly Communications Librarian at New York University, Copyright Guide: "Copyright Basics"
- Peter B. Hirtle, Cornell University, Copyright Information Center, "Copyright Terms and the Public Domain"
- United States Copyright Office
When thinking about copyright and archival collections, it is necessary to separate the rights of the creator from the rights of the archive or library (repository) that has obtained the collection. In most cases the transfer of archival material to a repository does not also include a complete transfer of copyright to that repository. Because archival collections often contain a mixture of materials, with a variety of creator/rights holders represented, each item's copyright must be considered on its own merits.
The repository that maintains the archival collection may have its own requirements to consider when you request to use an archival work for scholarly or commercial purposes. They may charge a fee for use (often tied to a high resolution scan of the document), or ask that you cite the repository in a specific way when publishing. These requirements are no indication of the repository's ownership of copyright of the materials.
There are some additional issues to consider when thinking about copyright and archival collections.
Copyright and international material:
While there is no international copyright law, the Berne Convention, administered by the World Intellectual Property Organization (WIPO) has set a minimum standard for copyright protection for those countries who have signed on to the agreement.
The minimum duration of protection offered by the Berne Convention is life of the creator plus 50 years. For anonymous works the duration is 50 years after the date the work was first made public. Art and photographic works are protected 25 years after creation.
There are two major principles to the Berne Convention to consider:
National treatment: copyright protection must be granted to foreign nationals who have signed on to the Berne Convention in the same way it is granted to domestic signers of the Berne Convention. For example, if a work created by a Chinese author, but is now being used in the United States, that artist must be granted the same copyright protections as a US citizen.
Automatic protection: a creative work is automatically protected by copyright once it is fixed in a tangible medium ( ex: paper, digital file formats, film and audio tape, etc.).
Copyright and unpublished material:
Many archival collections contain unpublished works. Under US copyright law these works are afforded protections like any other creative works, and in certain instances, the courts afford copyright holders of unpublished works more protections than works that have been published (since authors of unpublished material have the right of first sale). As with copyright for published works, the duration of copyright is life of the author plus 70 years. If the death of the author is unknown, or the author is a corporate body, then the term is 120 years from the date of creation.
Copyright and visual materials:
Visual materials (photographs, illustrations, artwork, and in some cases performances, etc.) are treated somewhat differently from text-based works. The reason for this is that when using copyrighted visual materials in one's own work, you often have to use the majority of the image to illustrate your point. Because the limits of fair use include the amount or extent of the use, in many cases using visual materials is doubly prohibited.
Best practices for using visual materials are as follows:
- Use only those images, or portions of images, that illustrate your point
- The use of the image should be secondary to the point it intends to illustrate
- The size and resolution of the image should be only as large as is required to illustrate your point
- Extra consideration should be taken when using reproductions of born-digital works in a online environment
- One should strive toward the most accurate representations of the original work
- One should provide attribution of the original work, and the location where the reproduction was acquired
Works cited for this section:
- WIPO: Summary of the Berne Collection for the Protection of Literary and Artistic Works (1886)
- Society of American Archivists: Copyright and Unpublished Material
- Barnard guide for copyright and fair use for visual materials: Intellectual Property Guide for Visual Resources
Fair use is a provision of US copyright law that allows exceptions to an author's exclusive rights to their creative work. The Provision, Section 107 of the US Copyright Act, allows for the use of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research." Other countries have their own version of copyright law, which is important to keep in mind when the copyright holder is outside the United States.
In the United States, using copyrighted material for educational purposes does not automatically mean the use is fair. The fairness of use is determined by weighing four factors. They are:
- Purpose and character of the use: Is the use of copyrighted material intended for scholarship, research, teaching, criticism, comment, or news reporting? The use of copyrighted material for educational purposes is generally favored over commercial use. Is the use “transformative” (has it been changed in a way that is meaningful and not simply derivative)? Significant changes to the original work are often considered fair use.
- Nature of the copyrighted work: Is the copyrighted work creative or instructive? A copyrighted work that is highly creative (art, music, fiction, poetry, etc.) may be protected more strongly than an instructive work. Is the copyrighted work unpublished? Unpublished works are protected more strongly because the courts generally protect an author’s right of “first publication.”
- The amount or substantiality of the use: Will only a small portion of the copyrighted work be used? Is that portion “the heart” of the copyrighted work? A quotation or detail of an image may be weighted as fair use. However, a short snippet of a song, if embodying the character of the whole, might be weighed as unfair use.
- Effect of the use on market value: Will the use of copyrighted material infringe upon the original author or authors ability to benefit from their creation? Will this affect the market value of the original work?
To determine fair use you need to weigh all of the four factors, and not all factors are weighted in the same way for each use. Generally speaking, the use of copyrighted material can be considered fair when a majority of the factors meet the threshold of fair use.
Use the Fair Use Checklist, created by Columbia University Copyright Advisory Office, to help determine if your use of copyrighted material is fair.
Works cited for this section:
- Columbia University, Copyright Advisory Office, Fair Use Guide
- April Hathcock, Scholarly Communications Librarian at New York University, Copyright Guide: Applying Fair Use
- Copyright Advisory Network, Public Domain Slider
- Barnard general copyright guide: Copyright, Fair Use, Permissions and Citation
Properly citing archival materials involves being aware of the preferences of multiple stakeholders. The preference of the archive where the collection is maintained, the citation style required by your professor, and sometimes stipulations made by the donor can impact how citations are conveyed.
The goal of any citation is to include as much detail as is necessary for readers of your work to easily locate the material you are citing, and be able to identify the kind of resource you are referring to. Not all citations need to contain the same information.
Elements to include when citing archival collections
Item description: who created the document, when was it created, what kind of document is it
Name of the archival collection: the official title of the collection listed on the finding aid
Series, box, and folder numbers: where the document is located within the larger collection
Repository: The name of the archive, library, or other cultural institution that cares for the collection
The preferred citation style of the Burke Library:
Item Description, MRL 6: Matilda Calder Thurston Papers 1902-1958, series #, box #, folder #, The Burke Library at Union Theological Seminary, Columbia University in the City of New York.
Add the preferred citation style of Burke Library to the end of your item description (filling in the series, box and folder numbers), followed by a semicolon. Item descriptions can be informed by information found on the folder the item came from.
When adding information not found on the document itself, place the explanation in [brackets].
Resources for creating citations for archival collections
- Chicago Manual of Style Online
- National Archives and Records Administration. Citing Records in the National Archives of the United States. 2010. (this resources gives examples for citing archival collections specifically in the National Archives collections, but can be used as a model for formulating your item descriptions for your own citations..
Creative Commons is a licensing tool that helps creators make decisions about how they'd like to protect and/or share the copyright of their creative work. Some creators want their creative output to be more readily shared, believing that this enables greater access to information, and a more fertile creative community.
The video below gives a good overview of why folks choose to license through Creative Commons.
A Shared Culture by Jesse Dylan is licensed under a Creative Commons Attribution-Noncommercial-Share Alike (CC BY-NC-SA) license.
This guide is licensed under a Creative Commons Attribution 4.0 International License.