This isn't a fair use issue. Fair use applies to items still protected by copyright.

Any map made by a private party in the 1860s is long out of copyright. Poof, like Jacob Marley's ghost.

In addition, a US government map is in the public domain. It's fair game.

But, even though an 1860s-era map is not protected by copyright, if someone has made an image of that map and published it, that image (as distinguished from the map itself) may well be protected by copyright, along with any subtext or stylistic edits the author or publisher made to it. I would not suggest reproducing (without permission) the entire image of a published map--it's probably not fair use.

So you have three options:  

(i) if you want to use the image as published, obtain a written license from the holder of the copyright (author or publisher--look at the verso of the title page). Publishers have departments that handle these requests and it may not be as difficult as it sounds. 

(ii) go to the original map and make your own image of it.  (If you use a professional photographer to do this, be sure to check his contract because it will likely say he owns the rights to whatever he shoots, in which case you'll have to mark that out and reverse the effect of the clause.)

(iii) if an institution owns it, such as LC, LVA, VHS, ask them to make an image--chances are they already have one--and license it to you for your work.  The fees are usually nominal ($25-100). (If you read the beginning of this e-mail closely, you should ask, how can they charge me for something that is out of copyright or in the public domain?  Well grasshopper, they can't legally, but they do. Institutions claim copyright in centuries-old items all the time, and you will never convince an archivist otherwise.  It's much easier to smile, send them a check and fill out the license form.)

Good luck.

Thomas Katheder
Lawyer, writer and independent scholar

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