by Thomas MacEntee | Apr 26, 2012
[Note: the author is not an attorney and the information contained in this article should not be construed as legal advice regarding copyright.]
As researchers, genealogists and family historians are great at sniffing out information and clues about their families or the families of their clients. We search, we analyze, and we educate ourselves. But have we all done our homework in terms of whether or not we can use certain resources such as obituaries, published family stories and the like? Do you know when and how you can use copyrighted works? Do you know how to even determine whether a work is covered by copyright?
"Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works."
The paragraph above is from the U.S. Copyright Office's Frequently Asked Questions about Copyright webpage. It is a general statement as to what copyright covers here in the United States. But as they say, "the Devil is in the details," and understanding exactly what is and isn't covered and what, as a genealogist, you can and can't use, requires quite a bit of guidance.
This article provides an overview of US copyright provisions and how they impact the genealogist and family historian, from hobbyist to professional, from unpublished research to published family histories. The concept of protecting intellectual property is not just an American one. In fact the Berne Convention for the Protection of Literary and Artistic Works, better known as the Berne Convention, has been adopted by over 160 countries and covers international copyright issues.
A copyright does not convey magical powers nor was it meant to serve as a "reward" for one's labor in creating the work. A copyright conveys rights, such as:
Basically, when you own the copyright to a work, you can control how that work is used by yourself and others. This includes genealogy books, written family stories, even audio and video recordings.
Too often, genealogists worry about using certain published and unpublished materials during the research process to the point of impacting their progress in finding ancestors. A mantra that has helped me: "Don't worry. Be educated."
Don't let the fear of using certain materials in both your research and a published or unpublished report or book keep you from breaking down brick walls or serving your genealogy clients. We genealogists are smart cookies, right? We research and become informed, right? So why not brush up on some basic facts about copyright and genealogy?
This is the first and most important question to ask yourself: what am I going to do with the information I take from a possibly copyrighted works? If your research will remain unpublished, for the most part your worries are few. However, if you have a blog or you are publishing a family history book, you do need to fully understand what is and isn't allowed in terms of usage.
Birth dates, death dates, locations of events, etc. are not covered by copyright. So as a genealogist you can copy this type of information and use it freely in your research, reports, family trees etc.
It is not all black and white when it comes to what is and isn't covered by copyright. Due to a myriad of changes in the US Copyright laws and court rulings, assume that there are exceptions to even the most-obvious provisions. Here's a way to test your knowledge:
Confused? Well, one useful resource is an on-line "slider" about what is and isn't covered by copyright - the Is It Protected by Copyright? site.
This is a complicated question, as complicated as determining who owns the copyright to a work. As we've seen in the section above, the many changes to US copyright law have rendered the process of determining length of copyright difficult, to say the least. You'll need to gather all the information needed such as whether a work was published or not, when the author died, whether a copyright notice was used, etc.
For purposes such as criticism, comment, news reporting, teaching, scholarship or research, you are allowed to use portions of copyrighted works. A useful summary of Fair Use:
"It not only allows but encourages socially beneficial uses of copyrighted works such as teaching, learning, and scholarship. Without fair use, those beneficial uses-- quoting from copyrighted works, providing multiple copies to students in class, creating new knowledge based on previously published knowledge--would be infringements. Fair use is the means for assuring a robust and vigorous exchange of copyrighted information." -- Carrie Russell, American Library Association
Put simply: copyright is not meant to interfere with or impede scholarly research. There is no "fair use law" - this is one of many "copyright urban legends" and pieces of misinformation about US copyright. There is no "magic formula" such as only using three lines of the work, or if it is on the Internet, it is free to use, etc.
When you use other works for your genealogy research, basically you need to use a multi-step litmus test on your usage. I call this my "red light, green light" test:
If after going through the test above, you still decide to use the work, you open yourself up to the possibility of being served with a cease and desist notice or even a lawsuit related to your use of the copyrighted materials. I've found that until you've created your own original works and have had your copyright violated, you don't really appreciate the value of a copyright.
As genealogists we strive for accurate information and knowledge truly is power when it comes to copyright and genealogy. Don't let misinformation and fear keep you from using genealogy research materials available to you. By reading this article you've taken the first step in updating your knowledge about copyright. The resources below can help you keep you informed about copyright issues.
Copy Right, Copy Sense
Electronic Frontier Foundation - Legal Guide for Bloggers
Is It Protected By Copyright?
Mistake or Misdemeanor? (excellent article by Rhonda R. McClure about genealogy and copyright)
Stanford University Libraries - Copyright & Fair Use
U.S. Copyright Office FAQs
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