Copyright Fundamentals for Genealogy
Copyright Fundamentals for Genealogy
by Michael Patrick Goad
This article is available for free distribution and reprint as a public service
from the author. Please read conditions at the end of the article.
Since genealogical research inevitably involves copying of information,
questions involving copyright often crop up. When an answer is given, it
may be less than satisfactory. Sometimes the answer is wrong,
sometimes there is little or no explanation, and sometimes the answer
isn�t an answer, but a policy statement. In other instances, the answer
is right, but it isn�t what the questioner wanted to hear.
While copyright can be very complex and confusing, the parts of
copyright law that usually apply to genealogy are really pretty basic.
There are a few fundamentals that can help deal with just about any
genealogy copyright situation.
Copyright means copy right
Literally, the term copyright means the right to make copies of some
product. By law, the right belongs to its creator. In copyright law, the
product that�s copyrighted is referred to as a �work� and the creator of
the work is its author. From that, we can say:
Making a copy of a work or a portion of a work is its author�s
copy right.
In the U.S., the right to make a copy of a protected work is a
constitutional, exclusive right of the work�s author, except that some
limited copying is allowed by provisions of the copyright law. (see fair
use)
Is it copyrighted?
If it�s created today by the original expression of the author and it can
be viewed or copied, then it is protected under copyright. The law says:
Copyright protection subsists� in original works of authorship
fixed in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a
machine or device.
For works created before today, there are a few basic durations and
conditions for determining copyright status:
If an original work of authorship was created after 1977, it�s
copyrighted and it�s going to be for a very long time. The earliest
that any work created after that will lose its copyright will be
about 2049 � that�s assuming that the author died right after he
authored the work.
If it was created before 1923, there is no copyright on it any
more, so long as it was published. If it wasn�t published, it may
still be protected by copyright.
Works published before March 1, 1989 without proper copyright
notice are almost always in the public domain because, under the
law that existed before that, a proper copyright notice was
required for copyright protection.
Works published from 1923 to 1963 had to be renewed after an
initial copyright term for protection to continue. The U.S.
Copyright Office estimates that over 90% of works eligible for
renewal were never renewed.
For other situations there are many good copyright duration references
online (including one on my web site).
Only original expression protected
All that�s protected under copyright is the author�s original expression.
The protected material must have been independently created by the
author with at least some minimal amount of creativity. Anything in a
work that isn�t the author�s original expression isn�t protected by his
copyright.
Facts can�t be original expression
No one can claim originality in a fact. At best, a person may discover a
fact. If he discovers it and documents it, he has not created it. He has
only reported it. There is no originality.
Census takers, for instance, don�t create the data that result from their
work. They write down the facts that they discover. Census data,
therefore, can�t be copyrighted because it�s not original.
Since facts can�t be original expression, the copyright of any work
doesn�t extend to the facts contained within it. This is a very important
fundamental concept in genealogy, since genealogy so very much
involves the pursuit, discovery, and collection of facts.
While copyright doesn�t extend to facts, the facts may be expressed in
an original fashion. When this occurs, the original expression used to
convey the facts is protected, but the underlying facts are not.
Pre-existing material not protected
Any pre-existing material in a work that�s not the original expression of
the author isn�t protected by the author�s copyright. Facts, which exist
before the work is created, can�t be protected by copyright, as
previously discussed. Other examples of pre-existing material that
might be used in a work include the work of others, public domain
material, and U.S. government material.
The copyright status of already existing material doesn�t change when
used in a new work. If an author uses material from the work of
someone else, the copyright for the material still belongs to the original
author. If something from the public domain is used, its copyright
status is that it�s still in the public domain, available for anyone to use.
U.S. government developed material, by law, cannot be copyrighted.
However, material created by non-government authors and used by the
government is usually covered by the author's copyright. In either case,
though, use in a new work does not change the copyright status for U.S.
government materials.
Compilations
A compilation is a collection of pre-existing material. It can be a
collection of short stories, poems, or other narrative material. In
genealogy, compilations are usually some kind of collection of facts or
factual material.
Many genealogy compilations aren�t sufficiently original to be protected
by copyright. Since facts can�t be copyrighted, to be eligible for
copyright protection, a factual compilation must have some amount of
originality in either the selection of the facts, the arrangement of the
facts or both. And, then, the only part of the compilation that�s
protected will be that which has originality.
Example:
Joe records the names, dates and inscriptions of all of the
headstones in the Farnham East Cemetery. He arranges them in
three tables. The first is alphabetical by last name, the second
chronological by date of death, and the third arranged by the
relationship of the location of the headstone to a large oak tree
in the middle of the cemetery. As well, in the third, he only
includes the headstones of people who died in even numbered
years.
Of the three tables, the first two used all of the names and dates and
arranged them in standard formats, alphabetical and chronological. If
�all� of an available quantity of facts is used, there is no originality of
selection. If a standard format is used for the arrangement and
ordering of facts, then there is no originality of arrangement.
Only in the third table is the selection and arrangement of the material
original enough to be protected by copyright. Defining and describing
the location of a headstone by relationship to something else applies
originality in the arrangement of the facts. Selecting only those that
died in even numbered years is a nonstandard way to select the
information that will be included.
However, the copyright protection for the compilation of facts in the
third table applies only to the selection and the arrangement of the
facts. To copy the selection and arrangement of the facts would be to
infringe upon the right of copy belonging to the author. However, the
facts that are included in the compilation aren�t protected and may be
used by anyone.
Industrious collection and sweat of the brow
It�s natural that someone who works very hard at researching,
collecting, and arranging facts into a compilation would want to protect
their efforts.
And they can.
So long as they don�t make it available to others, so long as they don�t
publish it.
But that�s the only way that it can be protected. Once it�s made
available to others, such a work will have little or no copyright protection
in most instances.
Under copyright, the effort and work put into a project means nothing.
Copyright only protects an author�s �original expression.�
In the past, lower courts have made �sweat of the brow� and
�industrious collection� rulings, where the work and effort that went
into the research, collecting and arranging counted in the copyright
protection of a work. However, such rulings were invariably overturned
by higher courts. The Supreme Court has reaffirmed and further
defined the requirement for the author�s original expression in a word
being all that�s protected.
Fair use (and some application of what we�ve read so far)
The constitutional purpose of copyright is to further the progress of
science and the useful arts, which today is understood to mean scholarly
growth. Since building upon the advances of others is often necessary
for further advancement in most endeavors, this purpose is in apparent
direct conflict to the rights of authors to control or even prevent the
copying of their original expression.
The principle of fair use, which allows limited copying without consent,
limits the conflict. Its limits intentionally ill-defined, fair use is very
applicable to scholarship and research, important aspects of genealogy.
Four factors are considered:
Purpose of the use, including non-profit educational use
Nature of the copyrighted work
Amount of copying
Effect of the copying on the potential market for, or value of,
the original work
Examples:
Joe is doing research at the Mid America Library in Independence,
Missouri. He finds transcripts of four 18th century wills on pages 21,
23, and 87 of a book of deeds and wills from Virginia that is
copyrighted 1979. He makes a copy of each of the pages that has
the information he needs. He subsequently posts the text of each of
the four wills online.
He also finds a little narrative family history book that was published
in 1955 on the family of his great, great, great, granduncle. He
copies the entire book and publishes it online.
In a third book, copyrighted in 1934, he finds several pages narrating
the life of one his wife�s ancestors. He copies the pages and posts
small, significant portions from them online.
Which of the three examples was fair use?
Only the third.
In the first one, there is no potential for copyright infringement. While
the book is copyrighted 1979, at best the copyright applies to the
selection and arrangement of the information. If the book is sequenced
the same as the original will book or covered time period and all of the
documents available are included, then there is no originality.
A true transcript of a will is no more than a printed copy of an existing
document. While knowledge and interpretation may be needed to be
able to read the old handwriting, there is no creative expression
involved� and therefore no copyright involved.
In the second example, the book had no copyright date. It was
published in 1955 without proper copyright notice. Therefore, the book
is in the public domain and Joe can do anything with it he wants to.
If, however, the book included a proper copyright notice, it might still
have been under copyright protection if the author had renewed the
copyright. In that case, copying the book would probably not have been
a fair use and posting the entire work online definitely would not have
been.
Joe copied several pages out of a book, in the third example, that were
applicable to his research. Assuming the book is still under copyright:
copying the pages for personal research is a good example of fair
use.
Using small significant portions of the narrative from them in his
online web page would also likely be fair use.
Posting the entire narrative from the pages he copied would not
be fair use and would be copyright infringement.
Posting the factual information from the narrative would not be
fair use because there is no copyright issue. Factual
information abstracted from an author�s original expression is
not protected by copyright.
In conclusion
I could go on and on writing about copyright issues that apply to
genealogy. For example:
A pedigree, descendant chart, GEDCOM, or any other standard
genealogy form or format that contains nothing but facts is
not copyright protected. There is no originality of selection or
arrangement and facts can�t be copyrighted.
Plagiarism and copyright are not the same. Plagiarism is the
failure to properly document the source of the information or
material that you use and is considered by many to be
unethical.
When material you submitted is used by a commercial company in
their product, you retain the copyright for any of the material
that is a product of your original expression.
Copyright infringement and piracy of copyrighted material are common
on the internet. The online genealogy community is less exposed to it
than other interests. An understanding of some of the concepts
associated with copyright can be useful in both online and offline
genealogy research.
7/29/2003
Additional information, in more depth and detail, may be found on the
author�s web site at http://stellar-one.com/copyright.htm
This article is available for free distribution and reprint as a public service
from the author provided:
(1) it is not edited and these conditions appear on all copies, including
print.
(2) a link is provided to http://www.stellar-one.com/copyright_concepts/fundamentals_gene.htm if the article
is used in a web page on another site.
The author can be contacted at and is interested in
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Copyright Concepts