Notes on Copyright Issues

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publicly available vital records (the Social Security Death Index, for instance), and other researchers’ published and unpublished materials—materials such as oral histories and reports.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Fair use issues also appear with published and unpublished materials that are under copyright protection.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

Ownership of Records Accessed on Web Sites

[Update 14 September 2011: As a clarification to a couple of points, using direct quotes from Copyright Basics (PDF file), from the U. S. Copyright Office:

Page 2, under the heading of “Two General Principles,” states:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright. [emphasis mine]

Page 3, under the heading of “What is Not Protected by Copyright?,”

Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources) [emphasis mine]

—–

I own an original copy of William Morrell Emery’s The Families of Perkins, Fairfield and King, published in 1907. It’s in the public domain, now, since no-one has renewed the copyright on it. I’ve also re-set and sold a few copies of it. The FamilySearch.org website says that because they also own a copy of it, I can’t use mine for anything other than personal use without their permission.

Such a claim by FamilySearch is utterly ridiculous. In fact, I should ask them if they would like the licensing rights as a source of the material, in effect allowing them to add their brand name to my reproduction of the book. I don’t need to, however, since a number of other websites also have the same title in their collections with no such restrictions. Do I ask the other sites if they would like to have their brand name as the source of the material? I could. In fact, putting the rights up for auction sounds like a good idea. It would bring in a bit of fees that would otherwise not be possible with a book such as this one is.

Since anyone and everyone can get reproductions of Emery’s book off the web from a number of sites, how can a corporation seek to enforce such a restrictive use policy? In FamilySearch’s case, they seek a copy of your work without paying for it and attempt to force you to mention them for something that’s there’s no need to mention, or even acknowledge them for.

Some commercial sites are the same way. Ancestry.com, for instance, with it’s new web publishing feature. They seek to get your data on their site, and their brand name attached to it, royalty and license fee free. Tamura Jones has an interesting take on this particular scheme.

One other item that I found interesting while I was researching this post is the claim by for-pay websites that they own and/or charge for public records. A new, recent example is Archives.com (not to be confused with the Internet Archive (archive.org), which has a lot of material claimed by the inappropriately named .com version; see in particular the genealogy collections). I took a look at .com version database listing and was appalled at how much of their material is public records, available for free from the official local, county, or state website where it originated. The existence of such a redundant, let alone a for-pay, site is incomprehensible. Why is it that Archives.com seeks to duplicate the entire set of U. S. Census records when there are already several well-established, reasonably correct collections of these public records on other sites? For free, I might add.

By using a judicious search strategy and reading the usage policies of the websites you use, you can often find the best material for free and with no irrational restrictions on it use.

Gena’s Genealogy: Plagiarism in the Genealogy Community

Gena’s Genealogy: Plagiarism in the Genealogy Community is an interesting article, well written on the subject. Very general however, but she does say she’s not pointing fingers . . .

I like Gena’s article because it addresses some concerns of mine. I wrote some articles along the lines of others that I have seen on-line, but like you say, there is the issue of *idea* plagiarism. Ideas cannot be copyrighted so the source of your quote above is a bit iffy. There is, though the issue of proper credit for the main idea of an article being similar like what I’m about to do with this one, link to it. 🙂