My previous post answered a reader question about how to determine whether a newspaper (or other serial issue) was under copyright or not. (More details about the process can be found in our guide “Determining copyright status of serial issues”.) Some people still wonder about the ads, though. Here are some questions about those from Nena Ceg of Project Mindshare. (Steve Jones also asked similar questions):
“Where can I find copyright information about illustrations from magazine ads (pre-1964)? Are illustrations in those ads in the public domain? They required a copyright notice from the illustrator, or the illustrator´s signature was enough?”
The short answer: Yes, ads, and the illustrations in them, can have their own copyrights, just like issue contributions and illustrations can have their own copyright. But very few pre-1964 US ads still have active copyright; and research and library digitization projects often don’t have to worry about them. Those wanting to use magazine ads commercially might need to take more care, not just for copyright reasons but also for trademark reasons. For reliable legal guidance, you should talk to your lawyer (and I’m not one).
Here’s a longer answer with more details:
Finding ad-related copyrights
Copyrights for ads that appear in serials might be registered and renewed in one of three categories: in Contributions to Periodicals (which is where stories and articles in serials would also be registered and renewed); in Artwork (for advertising illustrations); or possibly in Commercial Prints and Labels. The Catalog of Copyright Entries (which runs up to 1978, covering renewals for publications through 1950) published different sections for each category, and the sections can be examined and searched online. (The link above goes to a page with more details.) All categories in the Copyright Office’s online database (which runs from 1978 onward, covering renewals for publications from 1950 and later) can be searched at once. (Note that copyrights from 1964 and later either automatically renewed or didn’t have to be renewed, which is why we’re discussing pre-1964 ads here.)
There are a few ads renewed as contributions to periodicals, but not many that I’ve found so far. In our copyright information page for the New York Post, where we’ve filled in details for early renewed contributions, you’ll see some ads for Schenley Distillers among the renewals. (The first one is dated May 15, 1936.) Some ads featuring the electric utility mascot Reddy Kilowatt were also renewed as periodical contributions– the earliest ones I’ve found ran in the Philadelphia Public Ledger in 1934. I have a hard time recalling any other ad series before 1950 that had significant numbers of renewals. Since we list the first contribution renewals for serials in our copyright inventory, though, if an ad was renewed as a contribution to a periodical appearing in that inventory, the periodical should be shown with a first-renewal date for contributions on or before the date of the ad. (And in some cases, as with the New York Post, we also list contribution renewals after the first one, so you can look for a renewal for the ad in that list if it says it includes all active renewals up to the ad’s date.)
It’s also possible that images in the ads (or of the ads) may have renewed copyrights. But, as with other images in periodicals, that’s pretty rare, and in our decision guide, we consider it highly unlikely unless they have a copyright notice of their own (as some did). We describe in Appendix C of our copyright determination guide how to search for copyrights of images. You will find a few ad-related images in the sources listed there, including the original cartoon image of Reddy Kilowatt, copyrighted in 1926 and renewed in 1954. Search for “Reddy” in Project Gutenberg’s transcription of artwork renewals from 1951 to 1959, and he comes right up.
Some other well-known cartoon characters that made their debut after 1923 also may have active copyrights, either from artwork renewals or from copyright renewals of the publications or films in which they first appeared. (Many of the best-known characters, franchises, and syndicates with active copyrights are mentioned in Appendix D of our guide.) But beyond Reddy Kilowatt, active renewed copyrights in characters specifically created for advertising appear to be rare, at least in the renewals I’ve looked at (primarily for publications up to 1950).
Advertising matter also could get copyrighted in the “Commercial Prints and Labels” category. Unlike with contributions and artwork, no one that I know of has yet produced searchable files or databases for commercial prints renewals in the Catalog of Copyright Entries. (They are in the Copyright Office’s searchable registered works database when that picks up in 1978.) But there aren’t that many commercial prints renewals, so it could be convenient and not too hard to produce searchable files for the early active ones, like Project Gutenberg has done for other artwork renewals. You can still look through them online through the Catalog of Copyright Entries scans, but for now you’ll have to look at the page images of the scans. I’ve looked over many of the Commercial Prints renewals pages, and have found a number of labels and what appear to be standalone posters, but have had a hard time finding anything in this category that appears to be a magazine or newspaper ad. (If you find any, though, let me know.)
Copyright, fair use, and trademark
I’m inclined myself not to worry about searching for ad copyright renewals unless I find a copyright notice for the ad. (An artist signature by itself is not a copyright notice, though it can provide a useful name to search on if you’re inclined to do so.) I’m not particularly worried both because copyright renewals for ads are rare in my experience (as noted above), and also because even if there are active copyrights in some of the advertising matter, a good case for fair use can be made for the sort of uses we tend to make of them in libraries and universities. Our digitization is noncommercial; it’s typically for purposes of study, research, or commentary; the ads are generally not the primary focus of interest for the content we’re digitizing; and there is usually little or no market now for the ads themselves (as opposed to the products the ads were designed to sell). Appendix E of our copyright determination guide has more notes on the use of materials that might still be under copyright.
If I were contemplating more commercial use of an ad, though, such as selling prints or T-shirts, or including them in promotions, I’d want to be more careful both to check the copyrights, and also to ensure that I wasn’t using trademarks improperly. Although copyrights expire after a set time period, trademarks (including brand names, slogans, logos, and other distinctive imagery associated with a brand) can last indefinitely as long as their owner keeps them in use, with some still going strong after more than a century.
It’s not against the law to simply reproduce a trademark, but it can be illegal to present it in a manner that creates confusion or misleads a consumer. For instance, if I reproduced a public domain ad for Coca-Cola in a newspaper that I scanned and put online, readers would not normally think that my scan was sponsored by Coca-Cola, or indeed had any direct connection with the company. But if I placed that same ad prominently on a vending machine that dispensed bottles of Pepsi, thirsty customers might think they were buying a soda different from the one they actually got. That could lead to legal troubles that I wouldn’t have from simply reproducing the newspaper.
Similar problems could result if I sold T-shirts or posters with a company logo or other trademark that customers thought was created or endorsed by that company. For this reason, Disney may retain control over clothing featuring Disney characters even after copyrights for the older characters start expiring a few years from now. They can’t use their character trademarks to stop all reproductions or creative uses of copyright-expired characters, but since they’ve registered trademarks for the use of many of those characters in branded clothing, and continue to sell character-themed clothes, they’d have good arguments that, say, many unlicensed Mickey Mouse-themed hats or T-shirts would be confused for approved Disney products.
The long and short of it
In summary, then, I believe serial digitization projects can clear copyrights for ads in periodicals pretty much the same way that they clear copyrights for other material in periodicals. The instructions we have in our copyright determination guide should work for them, as far as I’m aware. Remember, though, that I am not a lawyer, and certainly not your lawyer, and you’re best off consulting one if you want more assurance about the legal soundness of your reproducing or otherwise using other people’s ads. I also have not had as much experience myself with digitization of serials as others have. Comments are open below (for now), and I’d be very happy to hear from people with more expertise or relevant experience.