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Arcadia Publishing has the Images of America book series, many of which have pre-1923 photographs.

Same thing for Eyewitness Books. For example they have a book on money which has images of coins and currency going back hundreds of years.

My question is... could I scan in some of these images from these books and upload them to, say, Wikipedia?

In the United States anything published before 1923 is public domain but what exactly does that mean? Like if I want to upload a pre-1923 image from one of these books to Wikipedia do I have to track down the original and upload scan it in myself or can I rely on the scans that other people did?

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  • @Jen - that's a good point. I'd expect a new photo of the Coliseum in Rome to copyrighted, even tho that building is old, so it makes sense that that'd apply to photographs. I guess mentally I see all scans as being comparable to one another. A scan of a photo or a scan of a dollar bill from, say, 1899. I mean, the amount of effort that needs to be extended is the same in either case. Coins could be more difficult, however. They can be scanned in or they could be photographed as well. I guess it's not clear to me where you draw the line
    – neubert
    Dec 30, 2022 at 21:51
  • The amount of effort involved in making the scan is not relevant in US law, it is the copyright on the underlying image that matters. The date of publication, not of creation, is in most cases the key date for copyright purposes under US law. Dec 31, 2022 at 0:36
  • Date of publication and death of author to be exact.
    – Trish
    Dec 31, 2022 at 0:39
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    @Trish for US works published prior to 1978, the date of death of the author will not be relevant. For other works it may. Dec 31, 2022 at 0:52

1 Answer 1

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Date and Place of Publication Matter

If the photographs were published in the US prior to 1923 (or indeed now prior to 1927) by a US resident, they are now in the public domain (PD) in the US under US law. Wikipedia will generally accept such photos, and the persons who would otherwise be the copyright holders will not be able to bring an infringement suit in a US court.

If the pictures were taken before 1923, but not published until after 1980, they will be under copyright until 70 years after the death of the photographer, or until 2047, whichever is later.

If they were taken before 1923, but published after 1927 with a proper copyright notice, and if published in 1963 or before, and their copyright was properly renewed 28 years after publication, the copyright lasts for 95 years after publication.

There are various other sets of circumstance that may apply. The famous Cornell chart "Copyright Term and the Public Domain" covers all the relevant cases and spells out in which cases works are in the public domain, or if not, how long the copyright lasts for.

If the photograph(s) were first published outside the US, or the photographer was neither a US citizen nor a US resident, then a suit could be filed in the country of origin of the photographs, under the laws of that country. Copyright term varies in different countries, but in most it is calculated from the death of the author (the photographer) varying from 50 years to 100 years after the author's death. 70 years is perhaps the most common term, including most countries in Europe.

The Wikimedia Foundation (publisher of Wikipedia) takes the legal position that it is governed only by US law. To the best of my knowledge there has never yet been a successful copyright suit over an image (or text) published on Wikipedia that is PD under US law, but not by the law of its country of origin.

So you will see that the date of publication is a key fact, and the place of publication may also be relevant. The copyright page of the book which you are scanning will give the date that book was published, and may well give the dates of publication of images included inn the book, if those are earlier.

Under US law, scanning a previously published image will not generally give a new copyright on the image, nor will re-publishing a previously published image. Creating a modified (derivative) version of an image may well give a new copyright on the modified elements, but will not extend the copyright on the original image. (All this is also true for texts.)

The age of the subject of a photo (or other image) is not relevant to the duration of the copyright of a new, original image of that subject. The date that the image was created (as opposed to being published) will only rarely be relevant.

Money

Images of US coins and currency (bills) are a special case. They are considered to be "works of the US Federal Government" and so are not protected by copyright within the US at any time. A new US coin or bill first put out in 1922 would still not be protected within the US.

Money of other countries may be protected, or not, depending on the laws of its country of origin. But money issued before 1927 would be PD under US law.

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  • "If the pictures were taken before 1923, but not published until after 1980, they will be under copyright until 70 years after the death of the photographer, or until 2047, whichever is later". So if someone's pre-1923 personal photography collection was donated to a local museum but has never been published online or anywhere I guess you'd need to figure out when the photographer died, if you wanted to be on the up and up, so to speak?
    – neubert
    Dec 31, 2022 at 0:53
  • @neubert That is correct. Or you could attempt to obtain permission from the current copyright holder, probably then heir of the photographer. But in no case would such photos be PD prior to 2047 if they are published now. Thus permission from someone would be required, unless one could claim that fair use applied. Probably it would not apply in such a case. Consult the Cornell chart, it covers all such cases. Dec 31, 2022 at 0:57
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    "So if someone's pre-1923 personal photography collection" Note that the collection might be protected by copyright too, not just the individual photographs. For instance, if I make a book by compiling a collection of public domain photographs, each individual photograph is still public domain, but the collection (the choice to present these particular photographs together in that particular order) is probably protected by copyright. You can use each photograph individually, but if you use exactly all the same photographs as me, I can sue you for copyright infringement of the collection.
    – Stef
    Dec 31, 2022 at 12:52
  • Does US law recognise more “lax” copyright rules? For example, a work published in the UK under a 50 year term (for some reason) where if the same work had been published under similar circumstances in the US it would be 90 years (for example). Would Wikipedia consider it PD in their jurisdiction?
    – Tim
    Dec 31, 2022 at 14:22
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    @bdsl If the edits are sufficiently minor (mere spelling corrections, for example) there will be no new copyright in US law. If there is a new copyright, it will protect ONLY the new or altered content. There will be be no additional protection for the previously existing content. Copies made which do not include any of the new or altered content will not infringe any such new copyrights. Dec 31, 2022 at 18:34

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