A book or magazine published before 1923 is no longer protected by copyright and may be reproduced and distributed by anyone without violating the law. A truism in American copyright is that works published in the US before 1923 are in the public domain.
As a practical matter, there would be little risk in digitizing any pre-1923 edition of the work. The putative copyright owner must establish with certainty that an authorized publication has occurred at a later date. As time passes, it becomes harder and harder to document the authorship of earlier works, and thus the likelihood of a complaint or lawsuit becomes less and less likely. But "this is in the public domain" and "this may be copyrighted, but I'm less likely to be sued."
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