Who Owns Genealogy?
Cousins and Copyrights
by Gary B. Hoffman
Introduction

The practice of genealogy -- researching and publishing information about someone's ancestors -- falls under the purview of intellectual property laws. Computers attached to CD-ROM readers and communications networks make it easy to compile information from disparate locations and then convey it to any point on the globe. Who owns a compiled genealogy? The one who compiled it? The one who possesses a copy? The one whose ancestors are the subject of the compilation? Anyone? No one?

This article does not purport to answer every question about copyright and related doctrines. Nor can it even plumb the depths of all the legal issues involved with the practice of genealogy. Rather, it should be taken as a launching pad for further discussions in intellectual property. It should definitely not be construed as legal advice. First, I'll define several terms related to copyrights, and then, I'll talk about how copyrights relate to you and your genealogy work.
 
 

Copyright Basics
What is copyright? A copyright is an exclusive right to reproduce a "work of authorship," to prepare derivative works, to distribute copies of the work, to perform the work, and to publicly display the work. A work of authorship must be "original" and must be fixed in a "tangible medium of expression" in order to be protected. As subject matter, genealogy generally falls into the "literary works" category of works of authorship.

U.S. Law. In the U.S., copyright laws derive from the U.S. Constitution which gave Congress the power "to promote science ... by securing for limited times to authors ... the exclusive right to their ... writings." (Art. 1, sec. 8) Federal legislation preempts state laws on the subject of copyright. Copyright statutes are found in Title 17 of the United States Code, whose last major revision was called the Copyright Act of 1976.

Definitions. As used in the intellectual property context, "original" means both

originating with the author, not derived from another source, and
novel or new, not previously known or expressed.
In copyright law, the first definition is paramount; an author's work need not be different than another's, only that it is independently created by him or her. As Justice O'Conner has stated, "The sine qua non of copyright is originality. ... Originality requires independent creation and a modicum of creativity."(Feist) The common explanation is that anyone can pen (and claim a copyright in) an exact copy of Ode to a Grecian Urn as long as they had never seen or heard Keats' poem.

A "tangible medium of expression" can be any method of recording "now known or later developed, from which [the work] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Spoken words are not tangible unless recorded. Ideas are never tangible and do not receive protection, but their expressions do.

When copyright arises. Under current U.S. copyright law, a copyright arises when a work is fixed in a tangible medium of expression. That is, it automatically comes into being when it is recorded in any fashion. The immediate owner of a copyright is the author, or authors in the case of joint authorship. Works created by employees of the U.S. Government and most state and local governments are not protected by copyright. Copyrights in "works made for hire, " that is, works created by employees as a part of their employment, are owned by the employer.

Transferring copyrights. A copyright may be transferred to another, as is commonly done when authors assign their rights in a work to a publisher in order to get the work published. A major part of the publishing and movie business concerns itself with buying, selling, and tracking copyrights.

Ownership of copyright. Ownership of the copyright is distinct from the ownership of any material object in which the work is embedded. Mere possession of a book, for example, or a CD-ROM, does not give the possessor absolute right to do anything they please with the contents of the book or CD-ROM.

Public domain. A work that is not copyrightable or whose copyright has expired or lapsed is considered "in the public domain." There are no restrictions on what can be done with works in the public domain.

Term of copyright. Newly created works are protected during the author's lifetime and an additional fifty years thereafter. (Congress is considering a provision to add 20 years to this limit.) Works created before 1978 are governed by the law then in effect, generally for a total term of 75 years. In general, any work published before 1922 is now in the public domain.

Not copyrightable. Certain expressions cannot receive copyright protection, either because they are not original (such as ideas, facts, events, news of the day, concepts, principles, Laws of Nature, or discoveries), or the domain of patent law (devices, procedures, processes, method of operation) or trademark law (names, titles, logos). If a concept can only be described in a limited number of ways, its expression is said to "merge" with the concept and is also not copyrightable. Also not copyrightable are blank forms, plain calendars, and lists or tables taken from public documents or other common sources.

Compilations. A compilation, that is, a collection of works, is itself a work that receives copyright protection whether or not the works it contains are copyrightable. The originality involved in compiling (selecting, arranging, explaining, etc.) the compilation qualifies it for its own copyright. Until 1991, compilers could assert a right in a compilation of public domain facts based on their considerable effort to compile them into a new work. But the Supreme Court threw out this "sweat of the brow" theory in its decision "Feist Publications v. Rural Telephone Service," (499 U.S. 340). Since then, database owners have been forced to use other techniques to protect their market, including license agreements and moral suasion.

Fair Use. "Fair use" allows non-infringing copying of a copyrighted work for such purposes as comment, criticism, news reporting, teaching, scholarship or research. In determining whether such use is fair, courts consider

whether the purpose is commercial or non-commercial,
the nature of the work,
the amount used in relation to the whole work, and
the effect of the use on the market or value of the work.
In general, copying a small amount of a work is considered fair unless it is the heart of the work.

You, Genealogy, and Copyright
The copyright laws affect both the research and the publication of your genealogy, either a narrative family history or a simple pedigree family line. First, though, consider that the basic facts about your ancestor's life (such as name, birth date and place, marriage partner, date and place, and death date and place) do not receive copyright protection, no matter their source. Whether you went to the county courthouse, rented a microfilm of the relevant records, or found the data in a commercial CD-ROM, the basic facts of a person's life may be freely copied; they are in the public domain.

But adding any kind of narration to these basic facts gives rise to a copyright in the creative portion of the work. The more narrative, the stronger the copyright. If you are the author, you should take care to mark your work to give the proper notice. If it is a large or major work, consider registering it and depositing a copy in the Library of Congress.

On the other hand, if you find narrative material in a good family source, you should take care not to violate the rights of the author. Remember the idea of "Fair Use," mentioned above, before using more than a sentence or two, seek out the author and get permission. Do not assume that just because you have a copy of a story, you can copy it again or incorporate it into your family's history. If the author is dead, genealogists -- of all researchers -- are unable to use the excuse that they couldn't locate the heirs to seek copyright clearance!

Simple pedigree charts are not copyrightable, despite their markings, even when filled in with facts. But add a "modicum of creativity" and you can claim copyright protection in a pedigree chart. The same goes for computerized pedigree data, either in disk form or in a GEDCOM file.

Computerized family trees submitted to a compilation such as Ancestral File, GENSOURCE, the World Family Tree Project, or a GenWeb site are subject to the same laws of copyright as are printed genealogies. By submitting your data to one of these compilations, you implicitly agree to allow your information to be published. But if you include someone else's creative work along with yours, both you and the compiler may be liable for infringement. Broderbund Software warns contributors to its World Family Tree project about these issues in its WFT Instruction Guide, under "Your Rights as a Contributor to the World Family Tree."

Copyright Formalities
Although basic copyright protection is automatic, additional steps are required by law to either avoid fines or to receive punitive damages in an infringement suit. None of these is any longer a condition for copyright protection.

Marking. Marking a work with the word "Copyright," abbreviation "Copr," or the symbol © (the "C" in circle) plus the date and the author's name is permitted by law to provide legal notice of a copyright claim. In an infringement action, an infringer cannot reduce damages by claiming "innocent infringement" if the work was clearly marked.

Registering. The copyright law permits registration of the copyright at any time during its duration. Registration is required before bringing an infringement action at law. Registration involves filling a brief form, paying a small fee, and sending two copies of the work to the Register of Copyrights. For more details about this, visit The United States Copyright Office.

Depositing. Depositing two copies "of the best edition" of a work with the Library of Congress within three months of publication is a mandatory requirement of the copyright law. The copies sent to the Register of Copyrights for registration purposes fulfill this requirement.

Genealogy is a literary work under today's copyright laws. And everyone involved in research and preparation of a genealogy should be aware of copyright, as they use others' work for source material and generate their own.

For Further Information
The Web sites listed below can offer more guidance about copyright issues.

A Brief Introduction to Copyright Issues
More explanation of the basics of copyright from Brad Templeton, founder of the Clarinet News Service
The United States Copyright Office
The Library of Congress provides you with this Web site that has all of the official rules and forms.
The U.S. House of Representatives Internet Law Library U.S. Code
A searchable collection of U.S. statutes online at the House of Representatives.
The Copyright Website
This site, by Benedict O'Mahoney, provides good copyright information and a little bit of fun, too.
An Intellectual Property Law Primer for Multimedia and Web Developers
An article about intellectual property by J. Dianne Brinson and Mark F. Radcliffe at the Electronic Frontier Foundation.
The Copyright Handbook
A commercial paper book, available for purchase from Nolo Press.
The Copyright FAQ
More questions and answers about copyright issues, by Terry Carroll.
 

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© 1997 Gary B. Hoffman
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About the Author
Gary B. Hoffman has been involved in genealogy research for over thirty years. Gary earned a B.A. in Communication at Brigham Young University and an M.B.A. from Golden Gate University. He served as an Air Force officer for nine years and spent 15 years in electronics and telecommunications. He is currently computing services manager for the Graduate School of International Relations and Pacific Studies at the University of California, San Diego.

He recently earned a law degree after attending night classes for four years at Thomas Jefferson School of Law and has just passed the California Bar exam. He plans to practice "computer law."

He has served as the President of the Computer Genealogy Society of San Diego, President of the GenWeb Foundation, and is a section editor for advanced projects of the Journal of Online Genealogy. He writes and speaks frequently on topics relating to the convergence of genealogy, technology, and legal affairs.
 
 
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Database Copyrights
 

By Edmund B. Burke
Sequence: Volume 30, Number 2

Release Date: March/April 1995
 
 
 

One question of continuing interest to users of computer technology
concerns the extent to which computer databases may be protected
by copyright. This question is important both to copyright owners,
who want to maximize revenue from their databases, and to
copyright users, who want to incorporate portions of databases into
their own systems.
In legal terms the issue revolves around the extent of
copyright in a compilation. A compilation is essentially a collection of
facts that is ordered by logical principles set up by the compiler. The
facts are not copyrightable; the ordering and organization by the
compiler is. Around that delicate distinction hangs many a tale.
The Supreme Court decided the watershed case of Feist
Publications v. Rural Telephone Service in 1991, which set the
standards for later review for compilations. Feist marketed telephone
directories that covered geographic regions wider than the region of
any single telephone company. Feist asked for permission to use
Rural's database, but Rural refused. Not willing to give up so easily,
Feist copied (essentially verbatim and in its entirety) the telephone
white pages which had been compiled by Rural. Rural sued for
copyright infringement, claiming that while the names, addresses
and telephone numbers of its subscribers were in the public domain,
still the particular selection and arrangement of those names and
numbers in its white pages was original and entitled to copyright
protection.
The Supreme Court disagreed. It observed that a certain
amount of originality is required for copyright protection. While the
threshold is low, the Court noted, a phone company's white pages fail
to satisfy even the minimal standards required. Thus, the wholesale
copying by Feist of the telephone white pages was held to be lawful.
Users (or copiers) of computer databases tended to take great
comfort in the Feist decision, on the theory that facts and even some
elements of the structure from the database could likewise be copied
and used without liability to the copyright owner. However, recent
decisions from the Federal Courts of Appeal have indicated the
narrow limits of the Feist decision.
In BellSouth Advertising v. Donnelley, the Eleventh Circuit
Court of Appeals upheld the copyrightability of BellSouth's yellow
pages. The Court held that the greater degree of selection and
organization employed by the editors of the yellow pages, when
compared to the editorial decisions for the white pages, created a
copyrightable work of authorship for the yellow pages. These actions
involved selecting and naming advertising categories, dividing the
directory into those categories, and assigning businesses to different
categories. These were all deemed original acts of authorship which
distinguished the yellow pages case of BellSouth from the white
pages case of Feist. Therefore, the claim of infringement lodged by
BellSouth against the copyist was upheld.
A similar case was recently decided by the highly respected Court of
Appeals for the Second Circuit in New York. In CCC Information
Services v. Maclean Hunter Market Reports, the Court of Appeals
examined the copyrightability of Maclean Hunter's Automobile Red
Book - Official Used Car Evaluations. The valuation figures assigned to
different types of automobiles represented the editors' judgment of
the value for vehicles, based on a wide variety of information and
the professional judgment of the editors. CCC Information Services
used the information from the Red Book, and incorporated that into a
computer database. The information was "republished" along with
other valuations from other sources. When customers of the Red
Book began to cancel their subscriptions in favor of the CCC database,
Maclean Hunter threatened the copyist with infringement, with the
lawsuit close behind.
The trial court ruled that the Red Book was not copyrightable
under the standards set by Feist, as it was nothing more than a
compilation of unprotected facts, which were not organized according
to any particular original thought. The appellate court disagreed, and
noted that the trial court had established too high a barrier for
originality as a condition of copyright protection. The originality
requirement under copyright is minimal, the Court of Appeals
stressed. Many courts, when considering database compilations in the
future, will now follow the reasoning of the Red Book case and will
probably find that those databases qualify as copyrightable.
The Court found that several indicia of originality could be
found in the Red Book, including the division of the used car market
into separate geographical regions, the manner of presentation of
optional features, the adjustment for mileage (which was specified in
5,000 mile increments), and the use of the concept of an "average"
vehicle. Although the Court recognized that the underlying facts
themselves are not entitled to copyright protection, the copyist in the
Red Book case was deemed to have taken more than facts. The
selection of the categories and the other editorial decisions made by
the Red Book authors were sufficient to create a copyrighted interest
in the Red Book. The Court noted that, in cases of wholesale copying,
courts should be willing to protect "soft ideas infused with taste and
opinion" of the editors and compilers.
Many databases will pass muster as copyrightable under the rather
liberal standards enunciated in BellSouth and Red Book. Therefore,
database users should be careful about the extent to which database
material is taken and incorporated into separate works and
applications, especially if the copying is substantial and if little "re-
organization" is done to the basic database. Although the defendants
in BellSouth and Red Book were competitors of the copyright owner,
it is important to recognize that competition is not a required
element of copyright infringement and that non-competitors can be
liable as well. However, if the work of a copyist competes with or
displaces sales of the original database, even more caution is
warranted, as the database owner will have a great incentive to
assert a claim.
These "compilation copyright" decisions will obviously affect
the brave new world of multimedia, in which a variety of sources are
collected by a single compiler for preparation of a new copyrighted
work. The complexities that will be involved in obtaining appropriate
copyright clearance for such multifaceted works will be enormous.
These court decisions will tend to increase the complexity of the
clearance process, because creators of new works will be advised
that they cannot with safety simply appropriate large portions of
"factual" databases. We can expect to see new market-driven
solutions for these problems, perhaps similar to the blanket licensing
schemes used by ASCAP and BMI for musical licensing or to the
voluntary clearance plan operated by the Copyright Clearance Center.
 

(Editor's Note: This article is provided for general information
purposes only. Consult your attorney for an opinion about a specific
case.)
 

Edmund B. (Pete) Burke is an attorney in the Corporate and
Technology Practice Group at Powell, Goldstein, Frazer & Murphy, a
law firm with offices in Atlanta and Washington, D.C.
 
 

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