Sunday, November 11, 2012

Copyright ©

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Copyright is often discussed on the Transitional Genealogists Forum and the mailing list for the Association of Professional Genealogists but this past week it has been THE topic of conversation. I think the news about Cyndi's List sparked some of this. I am far from being an expert and I am one of those that is always asking questions but I will cover some of the most common situations you will run into as a genealogist.

So why should a genealogist be concerned with copyright? One reason is that you can get yourself in a lot of legal hot water if you infringe on someone's copyright but the most important reason is that it just plain unethical to use someone else's work as your own. I know that most copyright infringement by beginning genealogists is because of ignorance of the law and not malice but that won't matter a bit to the judge hearing the case.

Here are some very basic things you need to know:

If you didn't write, photograph or record it, it doesn't belong to you
You wouldn't want someone stealing your car so why would you steal someone's writings or photographs? If you remember that everything you read in a book, in a magazine or on the internet was authored by someone other than you and it belongs to them you should do fine. Photographs and sound recordings are also covered. Here is what's covered under copyright law. Here is a great layman's brochure on Copyright Basics.

Copyright is automatic
As soon as you create something (writings, photograph, art work, sound recording etc.) it is protected under the copyright laws. You do not have to register the copyright with the copyright office but you can if you want to. HOWEVER, if someone infringes on your copyright you must be registered with the copyright office in order to receive certain damages (look at page 7 of this document). You do not have to put a copyright notice on your work for it to be covered but it is a good idea to do so as a warning to those that read/look at your work.

Fair use
You can quote or paraphrase SHORT passages but you must always give credit to the author. You cannot use large portions of the work without permission from the author. Here is the Copyright Office's definition of Fair Use. To see a more detailed discussion about Fair Use click HERE. Here are two examples taken directly from a couple of my reports. The first is a direct quote:

"I was born in Jasper County, Mississippi, on September 27, 1872, and lived with my parents on a small farm."1

1Frances Williams Griffith, True Life Story of Will Purvis (1935; reprint, Purvis, Miss.: privately published, 1989), 2.

The second example is a paraphrase:

Why would a family risk everything to move to this unknown and untamed land? By 1798, when the Alabama-Mississippi area was opened to settlement, much of the Upper South’s farmland had been completely exhausted due to poor farming practices.1

1Charles D. Lowery, “The Great Migration to the Mississippi Territory, 1798-1819,” Journal of Mississippi History 30 (Aug 1968): 173-192.

Even though I didn't quote Mr. Lowery directly, the thought was his. I got that by reading his article and I must give him credit for it. I didn't know that the Upper South's farmland had been completely exhausted due to poor farming practices, I learned that from him. I don't know if this is fact or not, I am taking it as his opinion after he did the research. This is a mistake that beginning genealogists (and writers in general) will make. They think that if they reword what they have read then it is okay to use. No it isn't. Another word for this is plagiarism.

If I needed to quote a large block of text, say over one paragraph (a short paragraph), I would get permission from the author and put that permission in the citation itself. I have never needed to do this. If I was routinely quoting large blocks I wouldn't be doing my own research now would I. There is no fixed number of words that constitutes a small section vs. a large section. This is a common sense thing but be aware that if someone takes you to court it will be the jury that decides how much is too much.

Photographs are covered under copyright
You cannot copy photos off of Find-A-Grave (or anywhere else) without the permission of the photographer. People do this all the time. I have found photos that I have taken for Find-A-Grave posted all over Ancestry.com. If you want to use the photo in your own work, ask the photographer for permission. I can mention the existence of the photo without permission from the photographer (still give him/her full credit) but if I actually use the photograph then I must get permission (because you are using the work in its entirety).

Here is a citation where I just mention that the photograph exists:

"Find A Grave.com," digital images (http://www.findagrave.com), Adolphus Armstrong marker, Memorial #20640841, photograph by Ann Rhoden; Mill Creek Baptist Church Cemetery, Glascock County, Georgia.
Here is what I would do differently if I am actually going to use the photograph itself:

"Find A Grave.com," digital images (http://www.findagrave.com), Adolphus Armstrong marker, Memorial #20640841, photograph by Ann Rhoden; Mill Creek Baptist Church Cemetery, Glascock County, Georgia; Permission to use photograph granted by Ann Rhoden, 06 Nov 2012.

When you are dealing with photographs, the photographer holds the copyright, not the possessor. Remember that when you start copying photos that Aunt Mabel took but you have at your house. You need Aunt Mabel's permission if the photos were taken after 1923.

Know the difference between copyright and contractual law
This is a biggie. Here is an example; federal census records are in the public domain BUT if you get the federal census off of Ancestry.com, you have to abide by their terms of use and that is restricted. Ancestry.com's terms of use state that anything you get off of their website is for your personal use only. When you signed up with Ancestry.com you signed a contract with them stating your would abide by their terms of use. If you violate this, they can sue you for breach of contract (not copyright infringement). Here is Ancestry.com's Terms of Use. Every web site that is a repository of genealogical works will have a terms of use page. If you access documents from their website you agree to abide by their terms of use whether or not it is a paid site or a freebie site. Another good example is GenealogyBank. Even though newspapers that were printed before 1923 are in the public domain, if you access them through GenealogyBank you cannot copy them (except for personal use) without their permission. Here is GenealogyBank's Terms of Use.

You cannot copyright facts
If you upload your family tree to Ancestry.com, the facts in your tree are not protected by copyright. If you say that Jane Marie Doe was born 12 Jan 1842 that is a fact. Anyone can copy that and they won't be violating any copyright laws. If you have a narrative paragraph detailing the research you did into Jane's life that part of your file is under copyright.

Know the different expiration dates of copyright
Anything published before 1923 is no longer copyrighted and in the public domain. Anything created after 01 Jan 1978 is under copyright until 70 years after the death of the creator unless it was published anonymously, under a pseudonym or is a work for hire, then the expiration is 95 years from the year of its first publication or 120 years from its creation, whichever occurs first. Anything created between 1923 and 1978 is under several different rules depending on the exact date. To figure out the copyright for anything between those dates read Chapter 3 of Title 17 of the United States Code. Or, if you are smart, you will buy Sharon DeBartolo Carmack's book that I have detailed below. She has a handy dandy chart explaining the copyright for works between these dates.


I have only given you the basics. Copyright law can be a little confusing and tricky. The US Copyright Office has a very informative website that is easy to read. I would suggest you spend some time there. They have a FAQ page which is very helpful. Another thing I found on their website that was interesting was a Records Search where you can find everything that has actually been registered with the Copyright Office since 1978. This only includes REGISTERED works but it is interesting to see what is actually registered (though it doesn't make the work any more protected).

I highly recommend Carmack's Guide to Copyright & Contracts by Sharon DeBartolo Carmack. I have only just recently acquired this book and I am so glad that I did.

If you are a member of the Association of Professional Genealogists (APG), in the members only area you will find an EXCELLENT webinar by Judy G. Russell, JD, CG called Facts, Photos and Fair Use: Copyright Law for Genealogists. You will find in in the Professional Development section. This is yet another reason to join genealogical societies and professional groups. For even more reasons take a look at Why Should I Join a Genealogical Society?


Copyright © 2012 Michele Simmons Lewis

4 comments:

  1. Very interesting topic. Seems pretty straight forward on digital pictures, etc. How do you account for the box full of family pictures you got from Grandma after she passed away?

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  2. If you are the lawful heir of the photos after Grandma passed away then you now hold the copyright ASSUMING GRANDMA TOOK THE PHOTOS HERSELF. If they were taken before 1923 then they are in the public domain BUT you can limit access to them by contractual law if they are unique (granting a license to use).

    The photographer holds the copyright unless the copyright was transferred to someone else. In the case of family photos, it is unlikely that anyone will try to sue you for using them.

    For example, I have many photos that came from my grandmother's estate. They were given to my by the executor of the estate who was responsible for divvying up her belongings. Technically though, I don't know if she was the photographer for these photos nor can I completely identify which ones were taken before or after 1923. However, if I were to use these photographs as part of my genealogy research, who would sue me over it?

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  3. Thanks for your post on this. I appreciate the summary you have provided.

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  4. Thanks for your kind comments, Michael :)

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