Copyright, Public Domain, and Maps – It’s Complicated

February 6, 2019
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You may have noticed that “copyright,” “public domain,” and “1923” have been in the news lately. At midnight on Dec. 31, 2018, certain intellectual property published in 1923 that had been held under copyright underwent a legal transformation and is now part of the public domain. For a while this was an annual occurrence within the copyright lifecycle, since earlier instances of copyright laws had provided protection for authors, artists, and other creators for a fixed number of years (50 years after the author’s death, for example). This cyclical advancing pattern of release was interrupted in 1998 when the Copyright Term Extension Act became law, essentially putting a freeze on the otherwise annual release of things by automatically extending the number of years of protection. Mickey Mouse, Sonny Bono, and the entertainment industry had a lot to do with this, but the impact was necessarily widespread across all materials.

Specifics of copyright protection are complex and detailed, and necessarily so, as the range of original creations worldwide is equally rich. The laws allow individuals and corporations to know that their precious efforts are recognized as such. At the same time, some of our most beloved music, movies, artworks, and the like were directly inspired by previous publications. Imitation is the sincerest form of flattery! Once something is part of the public domain, it can be used, reused, altered, modified, and reworked. It is available to become the raw stuff of inspiration for other creators, which is why some museums are blazing a trail into the open access realm.

Moreover, just because something exists under copyright doesn’t mean one can’t actively use it. For example, the London Underground regularly permits – through authorized licensing – alternative representations of the famous 1931 Harry Beck tube map to be published without legal sanctions. Licensing is what allows still-under-copyright music to stick in our heads in commercials. The standardized language of Creative Commons licenses has been a valuable solution for those wishing to facilitate the sharing of content for creative rather than commercial means, such as the David Rumsey collection of maps.

Meanwhile, think of Jan. 1, 2019, as having been a flush of new public domain content as the release cycle began anew. Books, movies, visual art, and music have received most of the attention, but what about maps? As a reminder, almost all maps published under the auspices of the U.S. Government fall outside of these restrictions anyway, as they are part of the public domain from their beginning. So the phenomenal maps of the Mississippi River that Harold Fisk produced in the early 1940s for the U.S. Corps of Engineers have always been available – and now in digital form – for your use as art inspiration, background images, or screen printing onto t-shirts.

Out-of-copyright (or never under copyright) historical maps exist for many locales. For example, many of the Sanborn Fire Insurance maps, a large and valuable collection for the United States that date back to the year 1866, are slowly and steadily being scanned and becoming available for download from the Library of Congress, at least up to their current year of copyright protection. However, becoming-public-domain at midnight on a certain date is not as similar to the Cinderella-midnight-pumpkin analogy as it may seem. Copyrights could be, and were, extended past these threshold dates when and if authors or publishers registered and then extended the copyright within a particular time frame. If such registration and extension is known with certainty not to have happened, then more recent items may have lost their copyright protections already…except that after 1991, the registration renewal requirement was waived. Really, it’s quite complicated.

There are many layers of politics and legalities surrounding these matters, and few cases are black and white. Prepare to do research, especially when there are no obvious clues to a map’s source and publication date. The U.S. Copyright Office offers suggestions for how to begin this type of investigation (a 12-page PDF document not yet updated with the new 1923 date). And what about new forms of spatial data and novel representations? What does it mean for LiDAR enthusiasts that a 3-dimensional scan may not qualify for protection under copyright? CyArk already shares some of its LiDAR data. Will others?

Are there specific maps published in 1923 that have just entered the public domain? National Geographic was actively producing maps during those years, and their 1923 map of the United States beautifully documents national activities from that time, such as highway expansion. Is this particular map suddenly available to be done with what we wish, by virtue of its alleged publication date? Not so fast. It turns out that this map was, indeed, first published in April 1923, but currently it isn’t known with certainty whether National Geographic previously extended its copyright. Plus, we do not know about licensing arrangements with Art.com, through which National Geographic distributes its historical maps. Can this 1923 map be purchased as a paper reproduction, scanned at a high resolution, and its digital representation then georeferenced to become a basemap within a GIS, with or without requiring attribution or further permission? Inquiring minds want to know, and lawyers will get back to us. Like I said, it’s complicated.

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