A couple weeks ago I had the privilege speaking at the monthly meeting of the Lincoln Lancaster County Genealogical Society. While my topic was not copyright, toward the end of my presentation, a question about copyright was raised which I didn't have time to address. But it has prompted me to think more about the copyright issues faced by genealogists, both as owners and users of copyrighted material. Ultimately my contemplation brought me around to the question of what and how much genealogical information is actually copyrightable.
(Before you read any further, let me remind you that I'm a librarian, not a lawyer. My musings below are not legal advice and would not assist you in a court of law.)
It's important to understand what copyright actually protects and what works or information are copyrightable. There are three core requirements which must be met in order for something to be copyrightable. The work must be authored, original, and fixed. If any one of these three requirements is missing, the work is not copyrightable. In addition, copyright protects the expression of an idea rather than idea itself. In some cases, patents may protect ideas, but that is another set of laws.
Copyright law is codified in the United States Code Title 17. According to § 102 (b), copyright protection does not apply to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. This provision is what enables multiple researchers to study, write, and publish on the same topic. In addition, in general, United States government publications are not copyrightable. And anything which has already entered the public domain cannot be copyrighted again, although derivatives of public domain material may be copyrighted.
So with these basic concepts in mind, what material in the possession of genealogists is actually copyrightable?
Great-grandma's oral history? If she only shared stories face-to-face and never recorded or wrote down those stories they are not yet copyrighted because they fail the fixed requirement. And if she did write them down or recorded them before 1978, but did not register the copyright, they still aren't copyrighted (more to come about the significance of this date). Now if I write down these stories as I recall her telling them to me, I own the copyright on my version of the story. But my cousin may remember the stories differently than I do, or Great-Grandma may have shared different details with her. My cousin could then write down these stories as she remembers hearing them, and copyright that version as well. Because Great-Grandma held no copyright of her stories, there is no legal intellectual property for an individual to inherit. My cousin and I can each own our versions of the story, and as long as each is deemed original enough (see discussion of the next question) we are not infringing on each other. Now if my copyrighted material is my cousin's source for her story, then she needs to be sure her use of my material meets the fair use principles (more later).
My family tree filled with names, dates, and places gleaned from public records? Not copyrightable. They are facts gleaned from the public domain. And as the plethora of nearly identical family trees posted on Ancestry.com demonstrate, just about anyone can duplicate the information without actually even viewing my tree. Family trees generally fail the originality requirement. However, if I publish a beautifully illustrated and artistic pedigree chart, my artwork is copyrightable although the factual content is not.
That family photo from 1893? It's in the public domain. Even digital copies of it are likely considered public domain because they do not meet the originality requirement. The philosophical foundation of copyright has changed over time. American copyright law was originally based on English common law which treated intellectual property as an economic commodity. Authors were given a short-term exclusive right to profit from their work. But in the United States, a large freely available body of work, the public domain, was believed to be essential to democracy. By contrast, in Europe (particularly in France and Germany) author's rights trumped the public domain. Author's rights are divided into economic and moral rights. Economic rights may be transferred and limited, but moral rights cannot be taken or given away. This allows European authors much more say over what happens to their works. In the United States, copyright terms have been extended many times starting with the original constitutionally mandated 14 years to author's life plus 70 years as of this writing. With these growing extensions of copyright terms, the United States is moving closer to the European model of author's rights.
So where does this leave the public domain? A complicated set of rules apply. On the whole anything published before 1923 is in the public domain. But for anything published from 1923 to the present, it is best to consult a very useful chart called When Works Pass Into the Public Domain. A patchwork of rules apply to varying circumstances makes it much more confusing to determine what works are still under copyright and which ones are now public domain. In general, it is best to assume that recent works are copyrighted. Current law provides copyright protection for new works whether or not they have been registered with the U.S. Copyright Office. But in other periods of time between 1922 and 1977, registration has been required in order to claim copyright. The above-referenced chart helps researchers sort through the confusion.
So how does a genealogist know when their work has been infringed upon or when they may be infringing on someone else? Authors, or more accurately, copyright owners have exclusive rights to reproduce, derive, distribute, perform, display, and transmit their works. However, the fair use doctrine of § 107 limits these exclusive rights. So users of copyrighted information may use portions of copyrighted works for criticism, comment, news reporting, teaching, scholarship, or research. But there are no hard and fast rules about what constitutes fair use. The law includes four factors which must be considered in any case, but generally fair use must be determined case by case. The four factors consider the character of the use, nature of the work, amount of the work copied, and economic impact.
So to wrap up, if you are concerned about copyright infringement:
1. Determine what part, if any, of the information concerned is truly copyrightable to begin with.
2. Then consider whether or not the use is fair.
3. If you are the copyright owner, it is strongly recommended that you register your published works with the U.S. Copyright Office. Beginning in 1978, this step is no longer required to be protected, but if you choose to pursue an infringer in court, or someone else accuses you of infringement, registration will aid your case.
The United States Copyright Office website provides many useful resources to help researchers understand copyright and register their own works.