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Who Owns Genealogy? Cousins and Copyright

by Gary B. Hoffman
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How Copyright Law Affects Your Research
Who owns a compiled family history? How can you secure copyright protection for your research? What information can you legally borrow from previous research? An expert answers these questions and more in this introduction to copyright law.

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
  1. originating with the author, not derived from another source, and
  2. 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'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
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

  1. whether the purpose is commercial or non-commercial,
  2. the nature of the work,
  3. the amount used in relation to the whole work, and
  4. 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. 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."

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.

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.

E-mail: ghoffman@ucsd.edu

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