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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 hearing how his article is used. This article is also
available in pdf format for sharing. Copyright Concepts
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Site last updated
03/16/2008