use of historic postcards

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  • Our Library would like to print a calendar using copies of old postcards which are photos of our county taken in about 1890. Our other option is for the Historical Society to print the postcard, but we would still have to be the ones making the postcards available. The postcards were sold commercially. Are we at risk either way?
  • Unfortunately, whenever we have to determine whether works are still in protection, the discussion is messy and ill-suited to this forum. Basically there are two broad questions here: Does the commercial sale of the postcards qualify as publication and, if it does, when did that publication occur and under what conditions.

    Publication occurs when a work is offered to the public at large in sufficient quantities to reasonably satisfy the demand, but courts are all over the place in interpreting that definition. If your postcards are unpublished, they are protected for the life of the author (the photographer, in this case) plus 70 years UNLESS they are anonymous or the death date of the author is unknown. In that case they are protected for 120 years from creation, and your calendar would potentially infringe for a few more years.

    If an author is known, of course, it is quite likely that he or she died more than 70 years ago.

    If the sale of these cards is considered publication, which seems the better view to me, then we need to determine the conditions of that publication. Did it occur before 1923? If so, the cards are in the public domain. If publication took place between 1923 and 1963, we need to know if there is a copyright notice on the cards. If there is, we need to ask if the copyright was renewed, which is a difficult fact to establish with any certainty. If there is no notice, the cards are in the public domain.

    If the cards were published after 1963, it actually gets even more complex, but I will postpone discussing those complexities because you refer to the cards as "old," so I will assume for now that the rules for works published after '63 do not apply.

    You might want to look at this chart of copyright terms (and note on the chart the different rules if the cards were published outside the US):
  • That was extremely helpful. Thank you. The cards were sold in 1890 by a photographer who was known at the time, not now. I think we are good to go.

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