A couple things to clarify here.

The intent of the digitization is paramount here. Is if for preservation? To preserve the information from a newspaper from the 1920 printed on acidic paper? If you digitize once and do not distribute you're fine.  As others have noted there are provisions in the copyright law that protects that. Is this for research and education? To make the digitized newspaper available to historians, students, etc., then it is probably permitted under Fair Use. Is this to copy and reproduce in large quantities to sell far and wide? Then it is not Fair Use and falls under a copyright if it still in force.

Just a reminder, this is not the New York Times, that is a company with over 160 years of publishing and is still a legal corporation with their own archives that they use to generate income. In the instance that we've been discussing this is from a newspaper that probably went out of business, and the corporation / publisher who would hold the copyright is long gone and may not have filed copyright extension that would cover this specific newspaper in question.

So, first, due diligence means that you check first to see if this specific paper is still under copyright. If it isn't then it's public domain. Scan away.

Second, if you meet the guidelines for Fair Use, for a newspaper long gone, there is little to worry about. It really has no monetary value under copyright for anyone to claim. The cost of digitization is probably more than the value of the actual newspaper on eBay.

Third, and importantly, just because you own an object, like a painting or an ancient Greek Vase, you do not own the copyright. Only the creator of the work owns the copyright, unless it was created as a work-for-hire. For art or objects that are in the public domain, when you have photos taken of that object, you own the copyright to the photos. The photographs are the copyrights that are used for museum reproductions and publications. You control access to your collections, and thus limit and set conditions for the use of photographs of them by others. This is not a tricky question. It is well settled in case law.

Cheers!
Dave

David Harvey
Senior Conservator & Museum Consultant
Los Angeles CA  USA
www.cityofangelsconservation.weebly.com

On Fri, May 13, 2016 at 7:13 AM, Tod Hopkins <[log in to unmask]> wrote:
I have great respect for the CAA guidelines. Several of the authors’ students work for my company!

But it is important to recognize that this is a scholarly group with an “educational” bias. Educational use is explicitly mentioned in the Fair Use statue, but entertainment is not. For museums, this is an important distinction because not all the activities of museums are clearly “educational” from a legal point of view. Museums have monetary motivations which cloud the issue of fair use considerably. This is often overlooked. If the museum charges admission, or uses the copyrighted work in high-profile presentation that has “entertainment” value, they are far more likely to be challenged than a curator giving a lecture. If you read carefully, this is covered in the guidelines, but it is not the focus of the document.

As for the OP use of a newspaper headline, publicly distributed newspapers are clearly within the bounds of fair use if you actually have a copy and your use is journalistic. However, if your copy came from a digital archive, you may be violating the archive’s copyright on the digital copy and that archive (ahem… New York Times) may object. This is a much trickier subject similar to museums asserting copyright over digital representations of paintings which are otherwise clearly in the public domain. 

Cheers,
               tod





On May 13, 2016, at 9:47 AM, Dan Bartlett <[log in to unmask]> wrote:

http://www.collegeart.org/pdf/fair-use/best-practices-fair-use-visual-arts.pdf and scroll to page 19. I count around 10 attorneys (including 2 among the 5 principal investigators) and some academics that seem to be pretty well credentialed.

db

On Thu, May 12, 2016 at 10:34 AM, Elizabeth Simon <[log in to unmask]> wrote:
The CAA guidelines look very helpful, although perhaps a little optimistic about the breadth of Fair Use. I also see that they were developed by "a consensus of professionals in the visual arts who use copyrighted images, texts, and other materials in their creative and scholarly work," and I see no mention of lawyers being consulted (don't have time to read the whole document; forgive me if this is a misinterpretation). Any copyright lawyer will tell you that Fair Use is one of the most misunderstood areas of the law. It is not simple, and there really is no substitute for tracking down who holds copyright and asking permission for use. With any luck, this 1924 newspaper is now in public domain. But until someone documents that, or gets permission form a copyright holder, any digitization of the material could be copyright infringement.

Elizabeth

On Thu, May 12, 2016 at 9:27 AM, Dan Bartlett <[log in to unmask]> wrote:
Elizabeth:

Perhaps not as tricky as you think. See the Collage Art Associations
excellent series on Fair Use in different applications related to academia,
museums, archives and special collections, and teaching:

http://www.collegeart.org/fair-use/


On Wed, May 11, 2016 at 4:13 PM, Elizabeth Simon <[log in to unmask]> wrote:
Dave--
Fair Use is tricky; I wouldn't advise anyone to assume they can rely on it. It's always best to ask the copyright holder for permission. Also, it is not the facts and information that would be digitized, but the layout and content of the newspaper, which are definitely subject to copyright.

Elizabeth Simon
Manager, Publications
CSWE


--
Dan Bartlett
Curator of Exhibits and Education
Instructor of Museum Studies
Logan Museum of Anthropology
Beloit College

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Logan Museum of Anthropology
Beloit College

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