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Copyright & Genealogy

Copyright & Genealogy

When questions about copyright are asked on the Freepages-Help mailing list. I often suggest those questions be directed to COPYRIGHT-L, declaring the subject off-topic for Freepages-Help. How can copyright questions be off topic on a list about creating websites?

  1. Many of the questions are not about copyright of a website. Instead they tend to run along the lines of:  "How do I stop someone else from publishing great grandpa's birthdate?" (Answer: You can't)

  2. Many Freepages-Help subscribers are new to web publishing and are not necessarily the best source for informed answers to questions about copyright.

  3. Copyright law can be complex and even a seemingly simple question can result in a long thread extending over days or weeks. Extended discussions about copyright belong in the COPYRIGHT-L Archives where they can be found by others looking for answers to similar questions.

For quick reference, here are answers to some of the questions asked most often on Freepages-Help. They are not "official" answers from RootsWeb; and I am not a lawyer so they are not legal advice. You'll find links to sites I have found useful following the FAQ.

Pat Asher
Freepages-Help List Admin

Frequently Asked Questions:

  • How do I copyright my website? Your website is automatically copyrighted just as soon as it is "fixed in any tangible medium of expression". However, just because your web page or site as a whole is copyrighted, it does not necessarily mean everything it contains is copyrighted by you. Copyright can only be claimed for an "an original work of authorship". [17 U.S.C. 102(a)]   It protects for a limited time the exclusive rights of an author to his original intellectual concepts. What does that jargon mean?

    Well, for example, this web page is copyrighted by me. My copyright existed immediately when I saved it to the hard drive on my computer. The design, selection, arrangement, descriptions and explanations are my original creations. But this page also contains preexisting material (quotations) that I did not create, but discovered and copied or transcribed from the original source. That preexisting material remains the property of the original copyright holder; or, if the material is public domain, it belongs to the community at large, and no one can claim copyright.

  • Can I copyright my genealogy research? Your work as a whole is a compilation which is copyrighted as soon as you have written it down, or recorded it in such a way that it can be visually perceived by others. However, since any genealogy necessarily consists in large part of preexisting material, the bulk of your family history is probably not copyrighted by you.

    Family stories, descriptions, explanations, and/or conclusions that you have written yourself and expressed in your own words are copyrighted by you as soon as you have written them down, on paper or on your computer.

    Quotations from works by other authors, whether a county history published 100 years ago, or a family history you received last week from your cousin, are copyrighted by the original author or publisher. If the copyright has expired and the work has passed into the public domain, including it in your family tree or website does not give you a new copyright on that preexisting material.

    Facts can not be copyrighted. [17 U.S.C. 102(b)] "This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence."  [Feist, IIA.par8]

    You wouldn't dream ( I hope ) of trying to claim copyright of the fact that 2 + 2 = 4. The same logic and law applies to facts such as, John SMITH was born 1 Jan 1880, or Aunt Minnie was buried in Tullahassee, Oklahoma. No matter how much time, money, and effort you have expended in discovering and compiling them, facts remain public domain.

  • How can I stop someone else from copying my tree and including it in theirs? As discussed above, facts are public domain and are "free for the taking ... even if the author was the first to discover the facts" [Feist, IIA.par11] Anyone may extract and use the facts from your website or tree. On the other hand, if your tree is in narrative form and you have written:
    John SMITH was born on a cold and snowy night at the beginning of January 1880, in the heart of one of the worst winters neighboring residents of the Texas panhandle could remember,
    you have created an original work by clothing the facts with an original description of those facts. The words you use to describe the facts are copyrighted, even though the underlying facts are not.

  • Can I include material copyrighted by others in my family website? The doctrine of "Fair Use" is a statutory exemption from copyright liability. Fair use allows exceptions "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research". [17U.S.C. 107] But determining what is and is not fair use is far from straightforward. [Harper, IVp1]   It is usually safe to quote a sentence or two. However, if the quotation embodies the "heart" of the work, that may still be copyright infringement. Harper, IVp9   When in doubt (which should be most of the time) obtain permission from the copyright holder in writing and always credit the source. Failure to credit the source is plagiarism, even if your use is not copyright infringement under the provisions of fair use.

  • How can I stop someone who is not related from publishing info on my family? I am always surprised when someone asks this question. If blood relationship were a requirement for publication, none of us could include collateral lines in our trees (e.g. your uncle's wife and ancestors) and biographers and historians such as Jeff Shaara, Stephen Ambrose, and David McCullough would have to find another line of work. Anyone can research any person or family in which they are interested and publish their findings.

  • I have published old family photos on my website and placed a copyright notice on them. How do I prevent visitors from copying them? There are two separate issues in this question.

    1. Physical possession of an object does not convey copyright to the owner of the object. Copyright of photos, old or recent, vests with the original photographer -- the one who created it. Very old photos (carte-de-vistes, cabinet cards, and even tintypes) taken before January 1, 1923 may well be in the public domain, but if they are not, then your publication of the photos is infringement unless the use is fair.  Digital copies (scans) of your old family photos are not original works eligible for copyright protection. [Bridgeman]

    2. Everything on your web pages, including photos and graphics, must be downloaded to your visitor's hard drive (temporary internet files) in order for his browser to display your page. A couple of key strokes is all that is needed to transfer those cached files to a permanent location on his hard drive. If your visitor can't find the cached files, he can usually do a screen capture and save that. There are JavaScripts that will disable a visitor's ability to right click and save, but that is an inconvenience, not a preventative measure. The only sure way to prevent copying is to not upload them. If you want to indicate the copy is owned by you, place a watermark (not a copyright notice) on the copy you upload to the web.

Websites and Articles:

U.S. Copyright Office-Copyright Basics (Circular 1)
Frequently Asked Questions about Copyright, U.S. Copyright Office
Copyright Fundamentals for Genealogy, by Mike Goad
Who Owns Genealogy? Cousins and Copyright by Gary B. Hoffman
Copyrighting Genealogical Information by Steve Paul Johnson
Ancestor Rustling Rampant on the Internet Range by Myra Vanderpool Gormley
What is the Public Domain by Lloyd J. Jassin
When Works Pass Into the Public Domain
Copyright and the old family photo, by Judy G. Russell

U.S. Code and Court Decisons:
Copyright Law of the United States of America, Title 17 USC
Bridgeman v. Corel
Dastar Corp. v. Twentieth Century Fox Film Corp.
Feist Publications v. Rural Telephone Service
Harper & Row v. Nation Enterprises

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