Patrons have suggested we provide photocopies of the daily crossword puzzles out of the newspaper because of other patrons doing the puzzle out of the library's current newspaper, thus ruining it for everyone else. We are told that some libraries provide this service, but we are concerned about the legality. Can you please advise us?
Topic: Providing copies of newspaper puzzles for patrons
Date Submitted: July 28, 2017
WNYLRC ATTORNEY’S RESPONSE
I would say, “This is quite the puzzle,” but fortunately, Section 108 of the U.S. Copyright Code makes this an easily solved dilemma.
But first, I have to commend you for being cautious, since the situation is absolutely governed by copyright. The puzzles, jumbles and other games in newspapers are what newspaper syndicates call “features.” In a 1970 case, a "feature" was described as: “a literary or artistic creation prepared for publication in newspapers.” The court recited: “Comic strips are features; crossword puzzles are features; gossip columns are features; columns of information and opinion…are features [emphasis added].” So in fact, your situation brings what we could call a “double copyright” concern: both the newspaper, and the crossword feature itself, can be infringed.
However, per Section 108, your library is allowed to make one copy of a published article from a newspaper, so long as:
How can this solution play out in a busy library? I advise making one copy as you describe, and making it available with a notice such as:
“As a courtesy to fellow patrons, please let staff know if you would like a copy of the crossword. The original version in the newspaper should not be written on.”
Since Section 108 is the key to making the copy, and it requires that the copy be made for a patron, I advise against making several copies in advance. However, to make sure the newspaper stays accessible throughout the day, making a temporary master copy to work from is okay….so long as those copies aren’t later compiled/used for something that goes beyond 108’s reach.
Hopefully, this will create satisfied crossword aficionados, serene newspaper readers, and peace in the periodical section!
 * United States v. Chicago Tribune-New York News Syndicate, Inc.
 In other words…if it becomes clear that the local crossword club is using your library to make the copies for its annual competition, the copying is no longer allowed.
 It is worth noting that the Library of Congress considers crossword puzzles to be “games” that are to be registered as “textual works,” since Section 108 does not extend to pictorial or graphic works.
Our local newspaper of record used to microfilm itself (using a third party vendor) for their own use in their private archives. I’m not sure what terms they had with the microfilm vendor, but it was relatively inexpensive for the public library to purchase a copy from the microfilming company for daily use. The newspaper has come under new ownership and longer microfilms itself. My first question is whether I understand 17 U.S.C. §108 correctly. Does paragraph A give libraries the right to make 1 analog copy of pretty much anything they own? Or, in this case, to microfilm the newspapers we have on hand? And does paragraph C give us the right to make up to 3 more microfilm copies, for preservation purposes? It would be our position that newsprint is always deteriorating (we have no climate control storage space to preserve a long run; people steal issues and cut out articles) and after “a reasonable effort” there will be nowhere else from where we can buy a pristine back run “at a fair price”…. Must we enter negotiations with the publisher to secure the right?
We would like to digitize newspapers that were published prior to 1923. Since the paper is still in business, does public domain apply in this case? They are very difficult to deal with. We do have a contact there. However, if there is nothing stopping us from digitizing the older issues, we prefer not to deal with them. Would this also apply to other newspapers who are still publishing today but whose content does exist prior to 1923.
You have confirmed that the “Buffalo Evening News” (and other iterations) content originates BEFORE the strategic “1923” date confirmed by the Copyright Office (Circular 15a) as in the public domain. This is true whether the original article or image was owned by the paper, or licensed by the paper and owned by another person or entity.
Once an item is in the public domain, there are numerous ways for either the original owner, or another, to create a copyright in a new medium re-presenting the content (this is a motivating factor in many “special editions”), but the original is no longer protected, and may be digitized as you describe, without concern about an successful infringement claim.
One caveat on the “Buffalo News” content: there could be a concern as you promote the newly created resource. “The Buffalo News” is a trademark owned by (interestingly) The Columbia Insurance Co. (registration # 75834888). So while you can list the resource, I advise against using the name “The Buffalo News” in any promotion of the collection. That is for optimal safety and so you don’t get a cease-and-desist.
The good news is that the “Buffalo Evening News” trademark is officially “dead” (see attached screenshot). This may be used to promote the service, should you wish to do so.
This analysis and a similar caveat would apply to any other newspaper.