|by Gary B. Hoffman|
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.
What is Copyright?
As used in the intellectual property context, "original" means both
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'Connor 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
Ownership of Copyright
Term of Copyright
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. Genealogy.com 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."
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.
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.
About the Author
Gary Hoffman has been involved in genealogy research for over 30 years. He is former president of the Computer Genealogy Society of San Diego and is CGSSD's Webmaster. Currently a computer manager at the University of California's San Diego campus, he recently received a law degree and passed the California bar exam. His articles on technical and legal issues relating to genealogy have appeared in several online publications and newsletters and he is a regular speaker at national genealogy conferences.
Copyright 1997 by Gary B. Hoffman. All Rights Reserved. Any republication of this article requires the express consent of the author.