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Introduction to Archival Research

Get started understanding how to find and use archival collections in your school work, professional research, or family research.
Understanding access restrictions Culturally protected records Making FOIA and other requests
Copyright and use Citing archival material  

This guide provides some preliminary information about legal issues like Copyright, Fair Use, and Public Domain. These sources do not constitute legal advice. You are responsible for making your own educated judgments when using copyrighted material.

Copyright and use

Nearly all materials may be legally protected by copyright laws, even if they were never published or registered with a copyright office. This means that material within archive may be copyright protected. Though most archival research is personal or scholarly - and so falls into the category of "Fair Use" - it's important to understand how copyright works and how you can use copyrighted materials.

Copyright gives the owner of the work exclusive right to:

  • Reproduce and make copies of the work
  • Create derivative works based on the original
  • Distribute copies of the work to the public
  • Publicly perform or display the work
  • Transmit the work digitally (in the case of sound recordings)

That means the copyright holder must license the work or give permission to anyone who wants to reproduce, adapt, distribute, display, or transmit it. To be cautious, assume that all creative works - including audio and video recordings, photographs and images, even documents, writing drafts, drawings and sketches - are copyright protected, unless you can prove otherwise.

To re-use copyrighted material in your own work, you may need to seek a license or permission to use the work from the copyright holder, with two exceptions: 

  • The original work has entered the Public Domain
  • and/or your use of the material falls within Fair Use

"Public domain" refers to creative works that are not protected by intellectual property laws. Anyone is free to use - to remix, copy, distribute, perform, display, or transmit - public domain works, without obtaining permission from the copyright owner. 


Government works

In the U.S., all works created and circulated by the federal government are public domain - including images, videos, audio recordings, or documents created and circulated by government offices or departments. You are free to use them without license or permission (except where those works themselves contain quotations, images, or other material that was first created and copyright by another entity). State and local governments may have more specific regulations. 


Expiration of copyright

In general, copyright protections for published works expire 95 years after the date of creation, with a few exceptions:

Determining Public Domain for Status Published Works
Published in the U.S. before 1925* Public domain
Published in the U.S. between 1926* and 1964 If copyright was not renewed 28 years after creation, it is now public domain.
Published in the U.S. between 1926* and March 1, 1989 If the work was published without a copyright notice, it is now public domain
Chart adapted from Rich Stim, "Welcome to the Public Domain," Stanford Unviersity Libraries

*This date refers to works created 95 years before 2020. Works created in 1926 will become public domain in 2021, works created in 1927 become public domain in 2022, and so on. 


Unpublished works

Archives often contain original material that was never published and circulated for commercial consumption: letters and diaries, home movies and personal phtoographs, writing drafts, unedited footage, workprints and outtakes, etc. Unpublished works are still protected by copyright laws. Copyright for personal material usually belongs to the individual creator or their heirs, while copyright for material created under the auspices of an organization or corporate entity belongs to the organization. 

Determining Public Domain Status for Unpublished Works
Unpublished creative work by an individual person (not working under contract with a corporation) Copyright expires 70 years after the death of the creator

Unpublished creative work by an unknown person (or person for whom date of death cannot by determined)

Copyright expires 120 years after the date of creation
Unpublished creative work by a coporate entity (or by an individual under contract with a corporate entity) Copyright expires 120 years after the date of creation

If you cannot determine the creator, date of creation, copyright status, or production company of an archival source, contact the archivist or archival institution for more information. 

Additional links: 

Fair Use is a legal exception to the exclusive rights of a copyright holder. It allows the use of a copyrighted work without permission or payment of royalty -- if the use of the copyrighted work falls within a certain set of parameters. 

To decide whether your use of an archival media source falls within Fair Use, you may need to consider all of the following: 

  MORE LIKELY to be Fair Use LESS LIKELY to be Fair Use
Purpose and character of your use

If the work you create is:

  • Educational
  • Transformative*
  • Non-profit

If the work you create is:

  • Commercial entertainment
  • Verbatim (untransformed) from the original
  • Profit-generating
Purpose and character of the original material

If the archival material you use is:

  • Factual
  • Non-fiction
  • News
  • Published

If the archival material you use is:

  • Creative
  • Fiction
  • Entertainment
  • Unpublished
Amount of the original material you use

If you intend to take from the original material:

  • A small amount
  • Only as much as necessary

If you intend to take from the original material:

  • A large portion or entire original work
  • More than is necessary for educational purposes
Effect of your use on the potential market

If... 

  • Your use has no significant effect on the market
  • Few copies of your work are made/distributed
  • Access to your work is restricted (to class use, to a private server, etc.)
  • Original work is no longer sold, in print, or distribution

If... 

  • Your work prevents sales of the original
  • Your work is made broadly available to the public
  • The owner or creator of the original work requests that users license the material
Chart content adapted from Amy Dygert, "Copyright services and the university," Society of American Archivists Annual Meeting 2020

Transformative use requires that material from the original copyrighted work is used in a different way or for a different purpose than the original. For example, using an educational film clip in your own teaching video is not a new purpose. Using an educational film clip to illustrate an historic period or make an ironic juxtaposition is a new purpose. When re-using copyrighted material, consider how your work adds new meaning, new information, or new aesthetics to the original.

More resources on Fair Use: 

A copyright holder or creator can make a creative work open to public use by issuing a Creative Commons license. You do not need to contact the creator or copyright holder for permission to use Creative Commons material, but you will need to follow the terms of use stipulated by the type of license issued. 

See the guides below to understand the types of Creative Commons licenses:

 

 

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