Intellectual Property Law
Intellectual Property Law Questions? Ask a Lawyer
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Generally speaking, anytime you use material created by another there is a risk of a copyright issues. The question typically becomes: “How much risk?”
To answer the question completely, lots of background information is needed.
I will assume that old “Franks” are devices or markings associated with a piece of mail (i.e. stamps, stamped impressions, manuscript writings (such as "privilege" signatures) and basically any authorized form of “franking” to qualify the item to be delivered by a postal service.
COPYRIGHT IN GENERAL
Copyright Act: "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work."
The use of preexisting contemporary images implicates three sections of the Copyright Act:
Thus, a “copyright” includes the exclusive right to prepare derivative works based on the copyrighted work. However, your images are "old franks" and are likely not contemporary images. You will need to verify same using the guidelines below.
DERIVATIVE WORKS BASED ON PUBLIC DOMAIN ITEMS
But what about images in the public domain (which we hope your “franks” are in the public domain)? Who can use and modify such images?
As is well known, items in the “public domain” are free to use and copy by all. Thus, “Franks” in the public domain are free to copy and use by all INCLUDING the making of “derivative works” based on such “Franks”.
If one creates a derivative work based on a “Frank” in the public domain, one has a copyright in such derivative work for the “new” artistic expression but not the old material.
So what qualifies as a “derivative work”?
Notably, an adaptation of a preexisting work must contain “some substantial, not merely trivial, originality.
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. (Copyright Act, 17 U.S.C. § 101)
ANSWER 1 and ANSWER 2
ANSWER 1: If a “frank” is in the public domain you can freely copy it and make derivative works based on such item.
ANSWER 2: If a “frank” has been altered in some substantial non trivial way creating and new work, such “modified frank” is subject to a copyright (owned by the creator of the “new” material) and cannot be copied without permission.
The original version of the “frank” that is in the public domain can still be copied, just not the new material.
Arranging a set of public domain items in a book is often considered a copyrightable derivative work called a compilation.
Factual compilations, for example, may possess the requisite originality for copyright protection.
If the selection and arrangement are original, these elements of the work are eligible for copyright protection. However, no matter how original the format the facts themselves do not become original through association.
Consequently, copyright in a factual compilation is said to be thin.
Same for “franks”; a compilation of “old franks” may be copyrightable but no matter how original the format and arrangement, the “franks” themselves do not become original through association.
ANSWER 3: Thus, if one copies individual “franks” from a compilation (i.e. book) containing public domain “franks”, such is not a problem.
But the more one copies groups of “franks” form a compilation of "old franks" there is a higher risk one will copy the protected format and arrangement which results in a higher risk of copyright infringement.
HOW TO DETERMINE IF SOMETHING IS IN PUBLIC DOMAIN
You would need to know the first publication date of your “old franks” and use the information below to make a good guess as to the current status of any copyright term (if there ever was a copyright). Determining the term of a copyright is tricky - Copyright terms and public Domain material as of 2013.
FOR WORKS NEVER PUBLISHED AND NEVER REGISTERED
(1) Unpublished works: author known : Life of author + 70 years (works from authors who died before 1943 now in public domain);
(2) Unpublished anonymous works, works for hire : 120 years from date of creation (Public Domain: works created before 1893);
(3) Unpublished works where author date of death not known . . 120 years from date of creation (Public domain if created before 1893)
WORKS REGISTERED OR FIRST PUBLISHED IN THE US
(4) Published Before 1923: None : work in public domain;
(5) Published 1923 - 1997: Published without copyright notice - in public domain;
(6) 1878-1989 - Published without notice and without registration for 5 years - in public domain;
(7) 1923 - 1963 : Published with notice but copyright not renewed - in public domain;
(8) 1964 - 1977 : Published with notice : 95 years after publication date;
(9) 1978 to 1989 : Created before 1978 and published with notice : (copyright probably valid till December 2047);
(10) March 1989 through 2002 : Created after 1977 : 70 years after the death of author, for corporate authorship 95 years from publication or 120 years from creation;
(11) march 1989 through 2002 : Created before 1978 and published in same period : copyright probably valid until December 2047;
(12) after 2002 : 70 years after death of author, 95 year from publication or 120 years from creation for corporation;
(13) Works prepared by government employee or agent as part of official duty : IN Public Domain.
US GOVERNMENT WORKS
According to the U.S. Philatelic catalog, the first stamp to include a copyright notice was the Captain Cook stamps issued in 1978.
Thus, if U.S. postal stamps are protected by copyright laws, such protection would seem to have become effective during/after 1978. US stamps used before 1978 should be in the public domain.
To qualify their stamps for copyright, the USPS privatized the “stamp making” department thereby removing stamps from the category of works produced by federal employees.
ANSWER 4: Thus, if the “Frank” is a US stamp that predates 1978, likely in the public domain.
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