Disclaimer: I am not an attorney. None of the information in this article shall be construed as anything other than information and my opinions on that information. Any advice given or perceived to be given is merely based on my own common sense.
Information pertinent to family history and genealogy researchers is fact-based. Facts include information from common sources such as newspapers, publicly available vital records (the Social Security Death Index, for instance), and other researchers’ published and unpublished materials—materials such as oral histories and reports. Facts are not copyrightable.
Genealogy is mostly based on research in and interpretation of old materials, containing pertinent facts, the majority of which were created over 120 years ago. Because of this material’s age, the information in it is in the public domain and is free for use by any and all. The simple statements of exclusion by age and type of material in the U. S. Copyright Act laws provide that there is no fear of infringement by a modern-day genealogist.
More recent information from other genealogy researchers may be copyrighted, however, and must be properly handled through a permissions process and attribution. As an example, if I were to publish a family history, and wanted to use my grandfather’s family history research or the diary of his travels as source material, I would need to get his permission; either from him, if he were still alive, or his legal representative, if he were deceased. In any case, the material also needs proper attribution to avoid a plagiarism charge.
Fair use issues also appear with published and unpublished materials that are under copyright protection. If the material is in the public domain, there is no legal requirement to attribute it to anyone. Ethically, however, one does need to be reasonable in the use of such material. As with use of copyrighted information, what constitutes fair use of any information is a subjective decision applied by the federal courts. A number of measures and guides are available to assist genealogists and other researchers, but if a legal issue over fair use arises, it is the judgment of the court that decides. Other organizations may also pass their own judgment on fair use and plagiarism; the results of their judgment could be harsher than that decided by a court.
Determining what is protected by copyright and what is not can be difficult, especially with the increasing commercialization of genealogically relevant materials. For instance, Google has posted millions of pages of public domain books on their website. The images of those books are copyrightable works of art. My interpretation, however, is that the images are not original since they were created by a fairly non-unique method, contain no significant content original to Google, and are merely representations of works existing elsewhere (i.e., a tourist’s photograph of the Eiffel Tower). Google acknowledges this latter item by providing links to library and commercial bookseller resources next to their images.
Because it is the factual information contained in those images that is of interest to genealogists, there is little reason to credit Google as the source rather than the original creator of the information; the images themselves are not really necessary to creating a quality family history. Using photographs or other images contained in these resources, on the other hand, might cause problems. In this case, one can simply find a librarian willing to copy the necessary pages of material, or one can borrow or buy a copy of the book and use the images from that copy and cite it directly.
By relying only on the graphical representations provided by Google, or any other site that provides such images (ancestry.com comes to mind), one does run the risk of using a flawed resource since a part of the whole document may be missing or unusable for some reason. It is best to cross-check this type of resource against another, independently created resource. Two different copies, one from archive.org and one from books.google.com, scanned and uploaded by different people, might be compared to make a reasonable assessment of a resource’s completeness. Better yet, find a real, physical copy.
By incorporating the information from online images of books, or other such images, and citing the creator of the information in one’s own work, whether or not for publication, a genealogist is creating an original, copyrightable work of his or her own. When this sort of transformation occurs, the genealogist gives new meaning and interpretation to the facts provided, and the resulting material is probably a valid fair use of the previously published material. The unique, newly created material surrounding the facts, is copyrightable and protected information, not the facts used as supporting material.
A number of online resources were used in creating this article. They are, in no particular order, since the resources are essentially common sources themselves:
Cornell University’s LII website
The Stanford Copyright & Fair Use Center website
The U. S. Copyright Office website
My interpretations of the copyright and fair use laws and their interpretations by others is based on common sense. If I am wrong in a particular aspect, please contact me with a correct interpretation.
The original content of this article is
© 2011 N. P. Maling