This article is based on a talk I gave at the Digital Public Library of America’s DPLA Fest conference on September 21, 2018.
Disclaimer: I am not a lawyer and this is not professional legal advice. This article is for educational purposes only. Please consult counsel concerning any potential digitization projects your institution is interested in pursuing.
Good afternoon. Thank you very much for attending this session. I’m Justin Clark, Project Manager of Hoosier State Chronicles, our state-wide historic digital newspaper program at the Indiana State Library. We are a part of the National Digital Newspaper Program (NDNP), a joint venture between the Library of Congress and the National Endowment for the Humanities. To date, we’ve digitized nearly a million pages of historic Indiana newspapers, of which over 300,000 have gone into NDNP’s Chronicling America database of nearly 14 million digitized newspaper pages from across the county.
When digitizing historic newspapers for NDNP, one of the most important things to consider is whether the paper is under copyright. You could have picked the perfect title, had it approved by your institution, and completed all of the arduous work of collation, but if you don’t check its copyright status, your work could all be for naught. This is why a basic understanding of fair use, the public domain, copyright, and conducting copyright research is essential to any newspaper digitization project. This talk will provide a general overview of what fair use is, how it relates to newspaper titles, and how you can complete the necessary research to ensure your desired title for digitization is acceptable. Doing this work gives you not only an expanded scope of potential titles for digitization, but it also provides peace of mind that you won’t hear from any lawyers in the future, besides your institution’s counsel, of course.
Now, before we begin our stroll through copyright, I must say this. I AM NOT A LAWYER . . . nor have I played one on TV. This talk is only an educational overview of what I’ve learned about copyright research for digitizing newspapers. Other materials such as photographs, 3D objects, and written documents may not follow the same procedures or guidelines. It is imperative that you consult your institution’s legal counsel before making any concrete decisions to digitize anything. This saves you a visit from an irate lawyer who is upset that you’ve digitized materials that are still in copyright. And this little disclaimer saves ME a visit from an irate lawyer who got the call from the other one about copyrighted materials. In short, the only lawyer you want visiting your office should come from your institution. Now, with that out of the way, let’s start with fair use.
What Is Fair Use?
In the United States, copyright holders possess considerable legal rights for the protection of their intellectual property. This is a great thing – copyright holders can use their hard work to ensure an income and that scammers will keep their greedy hands off of work that doesn’t belong to them. But there are exceptions. One such exception to US copyright law plays a vital role in our emerging digital landscape: fair use. Fair use, according to the U.S. Copyright Office, “is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” Essentially, fair use allows someone to use a copyrighted work for a completely different purpose than the copyright holder originally intended, which usually falls in the categories of “criticism, comment, news reporting, teaching, scholarship, and research.” These protections fall under Section 107 of the Copyright Act.
To determine whether or not a use of a copyrighted work is fair use, four general guidelines are followed. The first is the “purpose and character of the use.” Most of the time, if a person is using a copyrighted work for non-profit and/or educational purposes, it generally falls under fair use. This is especially the case if the use is “transformative” meaning that it “add[s] something new, with a further purpose or different character, and do[es] not substitute for the original use of the work.” In NDNP’s case, taking a newspaper which was originally created for immediate public consumption at a profit and transforming it into a digital historical artifact at no cost to the researcher usually falls under fair use. This guideline is not ironclad; sometimes, a copyright holder will object to their work being used in this way. Nevertheless, this guideline is generally applicable to NDNP and newspaper digitization as a whole.
Third, the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” plays a role in deciding fair use. In other words, if a person just blatantly copied the entirety of a copyrighted work and then sold it for their own benefit, it would not be fair use. However, for material that falls under the public domain (more on that below), recreating the entirety of the work is more than fine and falls under fair use. NDNP projects often have syndicated columns and cartoons that are copyrighted but the newspaper as a whole is not copyrighted. In those instances, the amount of non-copyrighted work outweighs the copyrighted work and the digitization of a newspaper is then considered fair use. We will unpack this more in the copyright research section.
Finally, fair use is determined by the “effect of the use upon the potential market for or value of the copyrighted work.” Put simply, does the use of a copyrighted work ruin its value in the marketplace? In the case of digitizing newspapers, a newspaper’s value stemmed from its original sale date, which was years or decades before. If a newspaper title is already in the public domain, its original market value is already gone and can be used by others in a myriad of ways. For NDNP projects, turning a newspaper into a primary source historical document does not destroy the market value of the original paper nor does it harm copyrighted works therein (syndicated columns and cartoons). Potential researchers are using the digitized newspapers for scholarly purposes, not for the resale of copyrighted material. As with the other three guidelines, the “market value” guideline is generally met.
Alongside fair use, a clear conception of public domain is essential for working on NDNP-related projects. Works in the public domain, according to the Stanford University Library, are:
. . . creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.
A work enters into the public domain via three avenues: it can’t be copyrighted (i.e., titles, names, facts, ideas, government works), the creator of the work places it in the public domain, or its copyright term has expired. With NDNP, the last of these three is the most important.
Now that you know how fair use and the public domain work, you can begin the necessary research to determine the copyright status of a newspaper title. Here in Indiana, we wanted to know the copyright status of one of Indianapolis’s premier papers of the 20th Century: the Indianapolis Times. The Times ran from 1888 (when it was titled the Sun) until 1965, a pretty impressive run for a daily metropolitan newspaper. From 1922 until its end, the Times was owned and operated by Scripps-Howard, a major publishing corporation based out of Cincinnati, Ohio. Knowing that such an influential publishing company owned the Times from 1922 until 1965 put an increased responsibility on us to make sure that the paper was either in the public domain and/or that its digitization would be considered fair use.
The Catalog of Copyright Entries (1906-1977) is available at Internet Archive (www.archive.org) in a readable, PDF format. It comes with Optimal Character Recognition (OCR), so it is text-and-word searchable. To begin, view the 1923 Catalog of Copyright Entries, Part 2, which provides the copyright and copyright renewal for all periodicals published in the United States that year. For all the following years, look for the volume devoted to periodicals. In the search field, type the name of your title. If nothing comes up, search the catalog’s index for the title. If nothing is there, check the title within the book in the new copyright section as well as the renewal section. If nothing comes up, your newspaper title filed neither a new copyright nor a copyright renewal and it is in the public domain. Consult all remaining years of the catalog (in the periodical section) for any new copyright notices or copyright renewals. If you do find that your title was published with a copyright notice and a renewal from 1923-1963, it is not in the public domain and will remain under copyright for 95 years after the publication date. However, if the title was published from 1923-1963 with an initial copyright notice but was not renewed during that time, it is in the public domain and you are free to digitize.
If you need to check anything after 1977, use the online Public Catalog of Copyright Entries, which covers 1978 to the present. This search is much easier than combing through the scanned versions at the Internet Archives. All you have to do is type in your title in the search bar; if you get no results, no copyright renewals were filed and you’re good to move forward. If there are copyright renewals, the title will remain under copyright for 95 years after its initial publication date.
For our research, we started with 1922, the year that Scripps-Howard Newspapers purchased the Times and the final year it could have been in the public domain (this research was done in 2017, before the public domain covered 1923). According to listings in the Catalog of Copyright Entries and the Public Catalog of Copyright Entries, Scripps-Howard Newspapers never filed the Times for copyright between 1922-1965 or for subsequent renewals from 1965-present. Therefore, the Times as a complete newspaper is within the public domain and eligible for digitization.
But your search doesn’t end there! The copyright of individual articles and syndicated content also needs to be established. Library of Congress policy for NDNP has generally been that individually-copyrighted content within the “context” of an entire newspaper in the public domain is not a problem, so long as it doesn’t account for over 50% of the entire work. This rule is a recommendation and not an absolute policy. It is still up to you as an NDNP awardee, your institution, and your legal counsel to establish the proper procedures for such content.
With our research of the Times, one type of syndicated content that showed up right away within copyright research was the Sunday supplemental, with PARADE magazine being an applicable example in the Times. From 1963-1965, PARADE was published with Sunday issues of the Times; it was copyrighted when it originally ran (and included in the Catalog of Copyright Entries) and was subsequently renewed (and included in the Public Catalog of Copyright Entries). As such, we decided not to include this supplemental in our NDNP deliverables. Regarding individual articles, we found 32 copyright listings in the Catalog of Copyright Entries from 1922-1965; only the initial copyright was listed and no renewals were found. These were then cross-referenced in the online Public Catalog of Copyright Entries to check for post-1978 renewals; none were found. These articles accounted for less than 10% of the entire field of research, way less than the more than 50% threshold for fair use. (So long as you consult your institution and its legal counsel.)
Now that you’ve thoroughly gone through the Catalogs, it’s also good policy to review the title’s microfilm. Here’s what we did. We chose three reels from each decade of the Times from 1923 to 1965 and scoured them for copyrighted content. We concluded that the vast majority of material on these reels fell within the public domain, in keeping the Times’s policy on copyright. As for what was copyrighted, it was mostly advertisements for still-existing products (Columbia Records, Bayer Aspirin), syndicated cartoons (individual cartoons scattered throughout the paper as well as one full page an issue), serialized fiction, and syndicated columns. These materials contained a copyright symbol and text, indicating its status. We concluded that these entries constituted a small minority of the newspaper content and largely will not affect the proprietary interests of the copyright holders (seeing as the content in question was digitized from second-generation microfilm, which itself come from first-generation preservation microfilm based photographed pages; the loss in resolution and quality should not urge copyright holders to pursue legal action). You can do more or less with your title’s microfilm than we have, but this should be enough to establish a broad consensus on your title’s copyright status.
Once you’ve done all of these procedures, it is best to draft a full report of your research and findings to your NDNP advisory board, as well as your institution’s legal counsel. Make sure to be as detailed as possible – this ensures they fully understand what you’ve done and saves you the trouble of having to answer a bunch of follow-up questions. For our research on the Times, I and my project director drafted our report and then sent it to the aforementioned parties. From there, we received approval to digitize the Times.
One more tip for your research: make sure to keep detailed notes of everything you do. You will be going through a lot of newspapers, so it will help you keep things straight. It also provides a paper trail that your institution’s leadership and legal counsel can consult if necessary. I suggest using Google Sheets and Docs to complete this research. It will be in the Cloud and can be easily shared with anyone who would like to see it. If Google is not your fancy, use Microsoft Office and back up your work to the Cloud or another hard drive. You don’t want to work diligently for months to have all of it lost because of computer issues.
Digitizing newspapers has been one the most rewarding things I’ve worked on in the public history and cultural heritage space. Seeing a title like the Indianapolis Times digitized and made available for researchers to use, for free, has been a real privilege. But all of this could not have happened without doing the long and often-tedious work of copyright research. Researching a title’s copyright ensures that it is free and clear for you to digitize—and a lawyer from King Features or PARADE magazine won’t come knocking on your door. Yet, copyright research can also be very rewarding. It gives you a big-picture view of the title you’re considering for digitization. You’ll see who its original audience may have been, the kinds of stories they covered, and how it fits in the context of your state’s, and the country’s, history. This, among many other things, makes copyright research worth it. Thank you.
Music: “Ambient, Adventure, Score Song” by Patrik Almkvisth, “The Descent ” by Kevin MacLeod, “Lurking” by Silent Partner, “Mean Streetz” by MK2, “Voyeur” by Jingle Punks, and “Far The Days Come” by Letter Box
Indiana’s long and rich history of newspaper publishing produced not only major papers of record but also some of the more obscure and oddly-named titles. For example, Hoosier State Chronicles, the state’s historic digital newspaper program, has digitized such titles as the New Albany Microscope and General Advertiser, the Danville Butcher-Knife, and Smithville’s iconic newspaper, Name It & Take It! Yet, one obscure title lingers in the Hoosier imagination more than any other and it likely did not even exist: Rushville’s Dog Fennel Gazette.
The story of the Dog Fennel Gazette is much like any other tall tale. It emerged out of the wildness of Indiana’s early years as a state (1820s) and it continued to be repeated without skepticism for much of the state’s history. According to legend, printer William D. M. Wickham published the weekly newspaper in Rushville starting in either 1822 or 1823, and utilized a peculiar printing schedule. Historian Fred Cavinder noted that the paper was “published on one side of the page and sent to subscribers, who read it and returned it to the publisher so the next edition could be printed on the other side.” The apocryphal journal of record received a huge boost of credibility after John Arnold included the story, as fact, in his history of Rush County. It was oft reprinted in other histories and journals, even appearing in a Pulitzer-Prize winning book on the Northwest Territory. During decades of spreading the tale, very few ever questioned it.
Despite many years of tacit acceptance of the story, an undercurrent of scholarship emerged that challenged the well-entrenched narrative. John W. Miller, in his Indiana Newspaper Bibliography, argued “the existence of this paper is highly questionable.” Historians Winifred Gregory also did not include the Gazette in her omnibus of American newspaper titles. However, the scholar who put the nail in the coffin for this myth was communications scholar Fredric Brewer in his 1993 article for the Indiana Magazine of History. In “Rushville’s Dog Fennel Gazette: Indiana’s Mythical Newspaper,” Brewer carefully examined the claims of the paper’s existence and came to a resounding conclusion: there was no Dog Fennel Gazette. As he noted, “no acknowledgement of the Dog Fennel’s founding appears in any of the extant issues of the Indiana, Kentucky, or western Ohio sheets that would have been contemporary. The simple reason the Dog Fennel earned neither a citation nor a welcome is because they newspaper never existed, probably not even as a proposal.”
While the Dog Fennel Gazette is not a real newspaper, the term “dog fennel” was used throughout the nineteenth and twentieth centuries. In fact, a Google n-gram analysis of the term “dog fennel” shows peaks of use from the 1820s and ’30s, the 1840s to the 1860s, and 1880 well into the 1900s. The term is used most of the time to describe a type of “strong-scented c[h]amomile (Anthemis cotula)” that is colloquially referred to as a weed. Specifically, Frederic G. Cassidy and Joan Houston Hall note in their Dictionary of American Regional English that “dog fennel” is also called “chiggerweed,” “stinkweed,” and “Johnny-Appleseed’s-weed,” among others. Hoosier author Booth Tarkington even used this definition in one of his novels. Yet, when one does additional research in digitized newspapers, “dog fennel” is often given another definition, one less descriptive and more judgmental. Throughout the decades of Indiana newspapers in Hoosier State Chronicles and Chronicling America, “dog fennel” is often used as a term of derision, akin to “nasty,” “backwater” or “uncivilized.” This essay shares some of these findings and indicates places of potential research for any scholar interested in expanding our understanding of this term and its relationship to the Hoosier State.
One of the earliest uses of “dog fennel” in this variety shows up in the Indiana State Sentinel on March 16, 1848. In an editorial about the most-recent state legislative session, the writer decries the passage of over 600 new laws and uses a colorful analogy to demonstrate their superfluity. As the opinionated citizen writes:
“Does an old lady in some dog fennel town [emphasis added] want room for another onion bed, by having an alley adjoining her garden vacated, it is a matter of so much magnitude, that the wisdom of the Legislature must be invoked, and Legislature cannon must loaded to batter down the obstacle!”
It is implied in the editorial that “dog fennel” means a town in the middle of nowhere with little or no importance to the affairs of big-city state legislators. Now, the author did not use the term in a patronizing way; in fact, it was used to differentiate the simpler lives of small town Indiana from the legislator’s “grey-bearded wisdom and rampant eloquence.” Today, we might use a regionalism like “Podunk” to describe a similar small town.
Clearer indications of this meaning come from two issues of the Sentinel during the 1850s. The first concerns the minister Eli P. Farmer, a Whig candidate for Congress who was essentially called a liar by the Decatur Local Press. The Sentinel, not particularly a fan of Farmer and definitely not a Whig paper, found this accusation beyond the pale and called out the Local Press in an editorial. “What has Eli P. Farmer done to set the whole Whig press yelping at him? And what does the editor of this little dog fennel Gazette know about Eli P. Farmer?,” the Sentinel noted. The term “dog fennel gazette” is directly used in this editorial to connote the Local Press’s unprofessionalism and sensational nature. A year later, the Sentinel published another editorial calling newspapers like the Winchester Patriot “dog fennel papers.” Both references indicate that the term was used among newspaper publishers and editorialists much like the terms “rag” or “yellow papers,” indicating the cheap paper and even cheaper reporting. It does not seem like much of a stretch to go from people calling newspapers “dog fennel gazettes” and people actually thinking one existed.
This trend of referring to newspapers as “dog fennel” continued well into the twentieth century. In another editorial from the September 26, 1907 Plymouth Tribune, they called Plymouth Daily Independent publisher C. W. Metsker “unholy” and “a reprobate” and the paper he ran a “dog fennel sheet.” This was in reference to Metsker’s support of a local interurban company subsidy that would raise local taxes. Plymouth’s local government eventually killed the subsidy proposal, likely with some help from the Tribune’s continued campaign against Metsker. Between the previous two examples and this one, using “dog fennel” as a pejorative against newspapers appears to have had staying power among newspaper editorialists.
Referring to towns, municipalities, and districts as “dog fennel” continued in newspapers as well. The April 20, 1865 issue of the Plymouth Weekly Democrat republished an editorial from the Buffalo Banner that called the city of Bluffton a “gilt-edged, dog fennel municipality.” In 1882, a short blurb in the Indianapolis News reaffirmed that the capital city was not a “dog fennel town,” so long as the local authorities enforced the Sunday liquor law. Finally, in a 1916 article in the aforementioned News, two officers were reassigned to patrol what were called “undesirable districts,” or “in the police vernacular, the ‘dog fennel.’” In each instance, the use of “dog fennel” was with a negative connotation, namely that these towns or districts were uncivilized or even potentially dangerous. Also notice the timeframe for the three articles: there is a consistent use of the vernacular of “dog fennel” for over 60 years.
Three more instances of referring to people as “dog fennel” are also worth note. The Evansville Daily Journal published a piece in 1864 calling a group of anti-Union protesters a “dog fennel militia.” In a moment of unintentional, existential reverie, the Crawfordsville Weekly Journal ran a solitary question in their editorial section: “Are you a dog fennel man?” Colonel Robert Ingersoll, noted Republican Party insider and public speaker, referred to the 1888 Democratic presidential ticket of Grover Cleveland and Allen G. Thurman as “dog fennel candidates,” meaning that they did not fight on behalf of the union or had sympathies with the copperheads during the Civil War. This meaning is exactly the same as the “dog fennel militia” comment from the Evansville Daily Journal. According to the Greencastle Times, this particular usage of “dog fennel” emerged from another newspaper man, James K. Magie of the Canon, Illinois Register. Magie used it to denounce the Knights of the Golden Circle, an organization of the rebellion that would dig for gold on the outskirts of towns near dog fennel plants. Ingersoll then broadened its definition to apply to anyone who was ambivalent about the cause of the Union or held sympathies with the Confederacy. As with the other usages described throughout this survey, the definition of “dog fennel” varies but its intent to criticize or condemn is consistent.
Evaluating each of these newspaper articles from Chronicling America and Hoosier State Chronicles provides researchers with a new avenue with which to analyze the term “dog fennel” and its usage throughout the nineteenth and twentieth centuries. Not only a term signifying a weed, “dog fennel” became synonymous with a wide array of negative connotations and was used exactly for that purpose. Within this climate, it is conceivable that an idea like “dog fennel gazette” turned it into a supposedly real newspaper, in this case the mythical Dog Fennel Gazette of Rushville. The first step for future researchers on this topic is using Hoosier State Chronicles (hoosierstatechronicles.org) and Chronicling America (chroniclingamerica.loc.gov) to find examples of this usage in other Indiana newspapers as well newspapers from across the country. Finding more instances of this usage in newspapers, as well as letters, books, magazine, and other primary sources, would expand our understanding of midwestern vernacular and its relationship to social, political, and economic life for much of the previous two centuries.
 Fred Cavinder, Indiana Book of Records, Firsts, and Fascinating Facts (Bloomington: Indiana University Press, 1985), 129.
 John W. Miller, Indiana Newspaper Bibliography (Indianapolis: Indiana Historical Society, 1982), 392.
 Fredric Brewer, “Rushville’s Dog Fennel Gazette: Indiana’s Mythical Newspaper,” Indiana Magazine of History Indiana Magazine of History (March 1, 1993), accessed July 26, 2018, IU Scholar Works.
 Frederic G. Cassidy and Joan Houston Hall, Dictionary of American Regional English, Volume II: D-H (Cambridge, Massachusetts: Belknap Press of Harvard University Press), 109-110.
 “The Last Session,” Indiana State Sentinel, March 16, 1848, 2, accessed February 27, 2018, Chronicling America.
 “Eli P. Farmer, Indiana State Sentinel, July 10, 1851, 1, accessed February 19, 2018, Chronicling America.
 “Where they get their Cue,” Indiana State Sentinel, September 9, 1852, 1, April 2, 2018, Chronicling America.
 “Against the People Again,” Plymouth Democrat, September 26, 1907, 4, accessed February 19, 2018, Chronicling America.
Plymouth Weekly Democrat, April 20, 1865, 1, accessed February 27, 2018, Chronicling America.
Indianapolis News, July 7, 1882, 4, accessed July 27, 2018, Hoosier State Chronicles.
Indianapolis News, September 2, 1916, 1, accessed April 2, 2018, Hoosier State Chronicles
Evansville Daily Journal, October 4, 1864, 2, accessed February 27, 2018, Hoosier State Chronicles.
Crawfordsville Weekly Journal, January 18, 1872, 2, accessed February 27, 2018, Hoosier State Chronicles.
Greencastle Times, July 19, 1888, 6, accessed February 27, 2018, Hoosier State Chronicles.
Summer is upon us, and one of the staples of American summers is fast food. It’s always a blast to roll down the windows, crank up the tunes, and head on over to your favorite drive-thru. Now, we all know about the classics: McDonald’s, Burger King, Taco Bell, KFC. But there’s one fast-food giant, wildly popular from 1950s through the 70s, which almost beat them all. That was Indianapolis-based Burger Chef.
Indiana, a state claimed as “free” from its statehood in 1816, was nevertheless the 7th highest non-southern state with racial terror lynchings, with 18 separate incidents. When searching through Indiana newspapers, many stories emerge of outlaw vigilantes who terrorized and brutalized African-Americans, sometimes for nothing more than alleged crimes. Since many were lynched before they received equal justice under the law, many of their lives ended tragically through injustice under the lariat.
While the vast majority of lynching occurred in the south, a sizable portion occurred in the Midwest. Indiana, a state claimed as “free” from its statehood in 1816, was nevertheless the 7th highest non-southern state with racial terror lynchings, with 18 separate incidents. One way historians have uncovered these horrific crimes is with newspapers. When searching through Indiana papers, many stories emerge of outlaw vigilantes who terrorized and brutalized African-Americans, sometimes for nothing more than alleged crimes. Since many were lynched before they received equal justice under the law, many of their lives ended tragically through injustice under the lariat.
One of the earliest lynchings in Indiana newspapers was chronicled by the Marshall County Republican on November 23, 1871. Three African-Americans, whose names were only given as “Johnson, Davis, and Taylor,” were accused of the murder of the Park family in Henryville, Clark County. Matthew Clegg, “a shystering lawyer” from Henryville, had a dispute with the Parks and when he likely had them murdered, he pushed the blame to the three local African-American men. When the grand jury couldn’t find enough evidence to indict them, the local vigilance committee took matters into their own hands. They broke through the jail, grabbed the three men, placed nooses around their neck, and dragged them through the street. They were then strung up next to each other on a tree. The Republican described their bodies in painful detail; Taylor’s description was the most gruesome: “His form was nude, save the slight remnants of a white shirt that was stretched across his lower limbs, while the hangman’s knot under his chin threw his head back in, a gasping movement, and his white teeth and distended lips grinned with a fiend-like scowl . . . .” It is unclear from the newspaper account if anyone was tried for the lynching.
In 1886, the Indiana State Sentinel reported the lynching of Holly Epps, who had been accused of the murder of a local farmer in Greene County. Around 12:50 on the morning of January 18, a “crowd of masked men” brandishing “sledgehammers and various other implements” descended on the Knox County jail. After failing to cajole the sheriff to open the door, the horde broke in, smashed through the jail cell, and dragged Epps out into the cold of night. Using the closest tree they could find, the mob strung Epps up and “for fully fifteen minutes he struggled for life, when death came to his relief.” The mob left his hanging remains on the courthouse grounds to be found by the county prosecutor. The sentiment of the citizens of the county, as recorded by the Sentinel, was one of satisfaction. “Citizens of all classes justify the lynching, and the moral sentiment is that the Greene County vigilants did a justifiable act in summarily removing the fiend from the face of the earth,” the Sentinel commented. The lynch mob were never prosecuted for their actions.
The 1889 lynching of Peter Willis in northern Kosciusko County received weird and contradictory coverage in the Indianapolis Journal. In its July 22, 1889 issue, the Journal ran a nondescript blurb about Willis’s lynching at the hands of a mob after he was charged with assaulting a little girl. The South Bend Tribune and the Indiana State Sentinel also ran stories with the same details. Then six days later, completely disregarding its previous coverage, the Journal published an editorial claiming “the assault and lynching episode referred to by the Sentinel [as well as the Tribune] never occurred, and is wholly an imaginary tragedy . . . .” The editorial further noted that “the only truth contained in the item is the superfluous information concerning the geographical location of Kosciusko county, which it says ‘is not in Mississippi or South Carolina,’ . . . and the further assertion that ‘it is the banner Republican county of Indiana.’” There’s nothing named Kosciusko in South Carolina and only a town named that in Mississippi; it was the Sentinel’s and Tribune’s way of saying it was in Indiana and highlighting that this can happen in the north. If the Journal thought they could drive a wedge of doubt through their phrasing, they were wrong. Furthermore, the fact that a county has Republican leanings says nothing about whether a lynching can occur there. This editorial was likely a political device to stave off criticism against a northern, Republican-leaning Indiana county. Sadly, it was misleading people about the unlawful execution of a person who had not yet been proven guilty in a court of law.
The beginning of the new century brought with it the same kinds of lawlessness that led to lynching, despite the Indiana General Assembly passing anti-lynching laws in 1899 and 1901. George Moore, an African American accused of assaulting two women and fleeing law enforcement, was lynched on the evening of November 20, 1902. He was “hanged to a telephone pole” in Sullivan County after a mob of roughly 40 men fought against the sheriff’s department. Moore had been a fugitive, attempting an escape to Illinois when he was captured by authorities in Lawrenceville, Illinois. The mob “beat him over the head with their weapons” before they hanged him. Governor Winfield T. Durbin was troubled by the situation and tried to stop it, but the requisite military and law enforcement officers couldn’t get there in time. It was another instance of mob violence instead of real justice, and the Indianapolis Journal said as much two days later in an editorial. “It is no excuse for mob law to say that the legal penalty in such cases is inadequate,” the Journal declared, “That is not for any mob or any community to say. If the penalty is not severe enough let the law be changed in a regular way, but while the law stands it should be observed.”
It is a common notion that lynching, much like racism, was a southern phenomenon in the United States. These select stories from Indiana newspapers illustrate just how wrong that notion is. The prejudice that people felt motivated them to take the law into their own hands, with disastrous consequences. Justice should be applied by democratic institutions, not by mob rule. That’s how we ensure the principle of equality under the law. But animus against African Americans was stronger than the virtue of justice. As a group of preachers declared in a 1910 article for the Indianapolis Recorder:
. . . so long as wild men will be permitted to roam at will with ropes, shot and torch, so long will a cloud of national shame hang over the government. It is known that almost all of the lynched are members of the colored race, and in many instances the color of their skin is their only crime. It is also known that in the section of the country where almost all this barbarous and un-Christian practice is loved and cherished the colored people have no voice at the courts of mercy.
In knowing these stories, we can begin the process of healing. It will neither be swift, nor easy, but it is vital for our democracy. We owe it to the names engraved on each corten steel beam in Montgomery, Alabama, of at least 18 are from the Hoosier state.
Thanks for watching. Please click “like” in you enjoyed this video and make sure to subscribe to keep updated on all new videos. To learn more about Flossie Bailey, check out Nicole Poletika’s article from the Indiana History Blog. Learn about other stories of lynching at Chronicling America and Hoosier State Chronicles. The links are in the description. Finally, have you visited the National Memorial for Peace and Justice? Were you aware of lynchings in Indiana before? What do you think we can do today to advance peace and justice? Leave your answers in the comments below. We want to hear from YOU.
Articles from Chronicling America and Hoosier State Chronicles
At just 110 pounds, Sullivan, Indiana-native Will Hays was not exactly the imposing figure you’d expect to be the film industry’s regulator, but he nevertheless left a substantial mark on the movie industry during the first half of the twentieth century.
In Indiana during the 1890s, a creature feature known today as the “Crawfordsville Monster” became fodder for newspaper headlines. People throughout the town claimed they saw this “horrible apparition” in the sky. While the monster’s origins were eventually discovered to be earthly bound, the legendary status of the monster speaks to the power of fake news.
It turns out that James P. Hornaday’s coverage of the Martinique and St. Vincent earthquakes was not the only big story in the Indianapolis News in the summer of 1902. A heavily-covered murder trial also graced the front pages during those months. William Fodrea, a young man with a penchant for engineering, stood accused of the murder of John Seay, an employee of the Noblesville Mining Company. Seay’s mysterious death and Fodrea’s equally mysterious alibi opened up a tale of unrequited love, obsession, and murder that captivated readers of both the News and the IndianapolisJournal. The resulting trial took many twists and turns before the jury’s surprising, unexpected decision. In the end, many walked away from the trial with more questions than answers and the details of that fateful night still remain obscured.
The murder of John Seay occurred on a cold, snowy night in 1901, just three days before Christmas. “About 1 o’clock yesterday morning,” the Indianapolis News reported, “while John E. Seay, in the employ of the Noblesville Milling Company, was resting on a stairway, a load of buckshot, fired by an assassin through a nearby window, entered his neck and head and he fell dead.” Within hours of the murder, attention turned to likely culprit William Fodrea, the twenty-five-year-old son of a former county prosecutor and aspiring engineer. Fodrea’s name rose to the top of officials’ list because he was reportedly obsessed with Seay’s girlfriend, nineteen-year-old Carrie Phillips. “Fodrea was infatuated with the girl and insanely jealous, and, it is said, made threats against Seay,” the News wrote. When Phillips rejected his advances, Fodrea increasingly fixated on her, “lingered” in her neighborhood, and was even “found hiding under the veranda” of her home. When she chose Seay instead, he was said to have lost all composure, resulting in the other suitor’s murder.
Fodrea, “perfectly calm and collected when arrested,” claimed total innocence. Even so, local authorities used a “‘sweat box’ examination,” but it “failed to compel the accused to implicate himself.” For context, a “sweat box” was an often-used torture device in US prisons that isolated the incarcerated in a small room with a tin roof. Due to a lack of ventilation, these small rooms greatly increased in temperature during the day and made prisoners “roast in the grueling heat, enough in some cases to cause death, or little better, madness.” It apparently did neither to Fodrea and he stayed locked up in the Hamilton Country jail while authorities began to sort out the crime.
From the initial investigations and throughout the trial, only circumstantial evidence linked Fodrea to the crime. Fodrea claimed to have never known Seay, and when asked to identify him in a photo, said that, “So far as that man is concerned, I never saw him before.” Despite his claims of innocence, other clues began to trickle in. The first piece of evidence found was a gun barrel, discovered by “school boys under a brush pile on the outskirts of the city.” As for testimonial evidence, Carrie Phillips and her mother both claimed that Fodrea’s obsession bubbled into a frenzy, with him finally declaring that “if he could not go with the young woman no one else could.” Phillip Karr, night manager of the Model Mill, said he saw Fodrea “loafing about the place late one night about a week before the shooting.” While these developments seemed damning on the surface, authorities noted that “these incidents will fall far short of being sufficient to convict him, if there are no new developments in the case.”
Ralph Kane, a veteran prosecutor, replaced J. Frank Beals after he withdrew from the case, citing his wife’s familial relationship to Fodrea. Judge William Neal began the process of establishing a grand jury to investigate the murder in more detail. The Hamilton County Council also convened, “acting on a petition signed by fifty business men,” to appropriate funds towards “a reward for the arrest and conviction of the assassin of John E. Seay.” One indication that the prosecution might have a case against Fodrea was that Seay did not appear to have any enemies in his former home of Richmond, Virginia. The grand jury first met on February 18, 1902. The Journal noted that, “Judge Neal, in his instructions to the jury, said no indictment could be returned against Fodrea unless there was a probability of guilt.” The case still hinged on circumstantial evidence. As such, Judge Neal further “instructed the jury to devote all of its time to the inquiry.”
The trial for the murder of John E. Seay began on June 9, 1902, at the Hamilton County Circuit Court. Billy Blodgett, a titan of turn-of-the-century investigative journalism, covered the proceedings for the Indianapolis News. The prosecution argued that William Fodrea shot Seay at close range while he was resting on a step. The alleged round from Fodrea’s shotgun “struck Seay in the neck and head, tearing a ghastly wound in his throat, and several of the grains of shot penetrating his brain.” Despite the cursory investigations indicated “no trace of the murderer,” a police officer had heard that Fodrea made threats against Seay. Fodrea, maintaining his innocence, “said he had gone downtown between 7 and 8 o’clock that evening, and visited different places, returning home about 10 o’clock. Being unable to sleep, he went back down-town an hour later, and for some time sat on the steps on the north and west sides of the court house.” He returned home around 2am. Due to the immense cold that wracked Noblesville that December night, the police were not sold on Fodrea’s story, especially his lounging on the courthouse steps. He was arrested soon thereafter.
The prosecution hung the success of their case on the testimony of Carrie Phillips. They again remarked of his odd behavior directed towards Miss Phillips—the passing her by home every day, hiding under her veranda, and his intense jealousy of Seay’s apparent courtship of Phillips. Her mother recalled that Fodrea called on the young woman shortly before the murder, asking for her whereabouts and the full name of her new suitor. Fodrea “said he would get even before long,” according to the State. These circumstantial accounts, while wholly based on the imperfect testimony of other people, painted a grim picture of the young man. The murder also highlighted a growing problem within Hamilton County. As Blodgett wrote in his first article for the News, “The killing of Seay was the third crime committed in Hamilton County within a short time, and consequently there was great indignation, not only at the murder, but because of what is termed ‘the epidemic of crime’.” The first day also focused on the selection of a jury, of which only two of twelve men would be over forty. This measure was taken to accommodate Fodrea, who was only 25 at the time and to ensure a fair trial. Leota Fodrea, William’s sister and a “prominent schoolteacher of the county,” showed “her devotion to her brother by her consistent presence by his side.”
The next day, the prosecution laid out its case in greater detail. Ralph Kane, lead prosecutor for the State, reiterated the problematic behavior of Fodrea and his supposed threats to Seay and Carrie Phillips. He argued that witnesses claimed to have seen Fodrea “lurking around the mill late at night and was seen standing at another time on the spot at the mill where the murderer stood” as well as “peering into the mill when Seay was there.” He also “caused a sensation when he declared that the State will show that the night of the murder, William Fodrea was seen within two squares of the mill with a shotgun in his hand.” These conclusions were based on the testimony of twenty-five witnesses, one of which was Frank Bond, a co-worker with Seay at the mill. He discovered the body as well as “12-gauge shotgun wads near it.” Bond then called Dr. Fred A. Tucker, another witness, who examined the body and concluded that Seay died instantly. Head miller Daniel H. McDougall also testified against Fodrea and claimed that he had applied for a job at the mill multiple times and even visited the grounds on three separate occasions.
The second day also provided the jury with details about the lives of both Fodrea and Seay. Fodrea, in his mid-twenties, called Hamilton County his home for most of his life. As the News wrote, “he has always been modest and unassuming and did not have a large circle of friends.” His life had taken for the worse after his laundry business went belly up as a result of a bad business partner, which prompted the young man to say, “It seems as if everyone that has anything to do with me beats me.” Seay, much like his accused assailant, lived a quiet life and kept to himself, likely the result of a speech impediment. He had very few close friends and lived modestly, dying with only a few hundred dollars to his name. What linked these two seemingly innocuous men was their relationship to Carrie Phillips.
Fodrea’s mother and father corroborated that their son was at home during the times he described and spoke of his good character. In particular, his mother noted that he was “very fond of machinery and wanted a job at the mill,” which paints his intentions with the mill in a different light. Additionally, the court came to a near stand-still when Fodrea’s sister took the stand. “She told of the dolls he made her,” Billy Blodgett’s wrote in the News, “the mechanical toys he constructed and the engines he built. Everyone in the room realized that the delicate sister was pleading for her brother, and it had effect at the time.” In all, the defense produced nearly 20 character witnesses for Fodrea, who all spoke positively of him and doubted the claims of the prosecution.
Even though many people testified to the goodness of Fodrea’s character, the testimonies of Carrie Phillips and Myrtle Levi described a completely different man. “Miss Phillips said she had known Fodrea for four years, and that during that time she had frequently told Fodrea that she did not want him to come to see her any more, but that he persisted in making calls at different times,” wrote the Journal. Phillips’s mother corroborated her daughter’s impressions of Fodrea and further noted that he threatened her and Seay. The defense pounced on this, arguing that “the State could not prove that Phillips went with other company, unless it also proved that Fodrea knew of it and talked about it.” The court agreed, the testimony was challenged, and Phillips was asked “not to say when she began going with Seay.” Regardless, her testimony displayed a man obsessed and incapable of thinking clearly about his relationships. Conversely, Myrtle Levi’s testimony proved more compelling, because she was the only one who directly connected Fodrea to the crime. As written in the News, “She testified that she knew Fodrea, and that on the night of the murder he and a companion came to her house and tried to enter.” He was accused of holding a shotgun, which two other witnesses claimed they saw on his person when he appeared at Levi’s residence. The defendant, asked by his lawyers not to take the stand to defend himself, calmly watched the proceedings as they developed.
On June 16, 1902, after six days of deliberation, the jury shockingly acquitted William Fodrea of all charges; a unanimous verdict was reached on the fourth ballot. The Journal described the atmosphere of the courtroom:
When the verdict, “We, the jury, find the defendant not guilty,” was read there was a sigh of relief from the crowd. Fodrea was as calm and undisturbed as any person in the room. His mother was the first to clasp his hand. Quietly he took the hand of each juror and thanked him while a smile played over his face. His relatives and friends then engaged in a love feast that lasted some time. His devoted sister Leota was not present when the verdict was returned, but after met and embraced him and escorted him to the home from which he had been absent for six months.
Some last-minute developments likely changed the direction of the jury. Thomas Levi, Myrtle Levi’s father, told the court that she did not originally identify Fodrea as one of the men who visited her home. While this important detail likely persuaded the jury, Levi’s personal life may have influenced them as well. As Hamilton County Historian David Heighway pointed out, Levi was a well-known prostitute in the community whose lifestyle might have weighed heavily on their verdict. Heighway’s evidence about her lifestyle comes from the Hamilton County Ledger.
This explanation seems incomplete, in some respects. First, the changing nature of her testimony could have had a stronger impact on the jury’s decision. Second, some of the jury may not have taken her lifestyle into consideration or may have not even known about it. Third, her profession should not have had any bearing on whether her testimony was true or not. The last of these hypotheses is sadly anachronistic; at the turn of the century, Victorian values were still in full swing and it is less than likely that the jury, if they had known about Levi, would have ignored it. Biases are an inherent part of everyone’s experiences, so the jury may have been biased against her from the start. Heighway’s explanation only answers part of this puzzle.
Alongside the knowledge of Levi’s lifestyle and changing testimony, it should be noted that Fodrea was accused of stalking, intimidation, threats, and eventually murder. It is not absurd to suggest that he could have killed Seay as a tragic conclusion to a failed courtship. Yet, as his defense pointed out, Fodrea was only connected to this crime via the woman his alleged victim was interested in. A full murder weapon was never found, eyewitnesses only described a gentleman in an overcoat at the mill, and the only witness who directly connected him to the crime had changed her story before it came to trial. There was enough doubt to acquit Fodrea, but the newspaper accounts of the trial acknowledge that Fodrea’s acquittal came from a weak prosecution, not a strong defense.
William Fodrea eventually picked up the pieces of his life, but in the most surprising way imaginable. Between 1908 and 1909, he co-founded the Fodrea-Malott Manufacturing Company, where he used his improved transmission design to build a better type of automobile. They developed only one vehicle during their lifetime, the “Beetle Flyer,” which was built by a staff of 8 (including Fodrea). When his partner, Charles Malott, suffered an auto accident in 1909 that destroyed much-needed supplies, the company folded. Malott moved to California and Fodrea moved to Arkansas, “to work on mechanical devices.” To this day, Fodrea-Malott remains the only known automobile company from Hamilton County. Fodrea died around 1945, according to Social Security and Census records.
The death of John Seay and the murder trial of William Fodrea captivated the citizens of Hamilton County and both of Indianapolis’s major newspapers. It displayed all the classic elements of a pulp-crime novel: unrequited love, intrigue, obsession, and murder, hence its extensive coverage by the News and the Journal. Fodrea’s acquittal put to rest, at least for the newspapers, whether or not he actually committed the horrendous deed, but his subsequent move to Arkansas suggests that it continued to haunt him. We may never know what exactly happened on that brisk, December night, but its effects left a deep influence on the community for years after.