Hi Tammy & Listers... About every 6 months or so, someone on this list will bring up the subject of "copying family trees". Below you will find two articles on the topic that have been previously published in RootsWeb Review. After reading these articles, please visit the Ethics in Genealogy Mailing List web page. This mailing list is hosted by Roots Web and there you may sign up and continue discussion of this topic. Thanks, Marilyn Strout NB List Admin ~~~~~~~~~~~~~~~~~~~~~~~~~~ Previously published in RootsWeb Review: 30 November 2005, Vol. 8, No. 48. TIPS FROM READERS Examining False Copyright Claims By James F. Ramaley, Ph.D. jramaley@hotmail.com During my working career in the magazine publishing field, I became very appreciative of the value conferred to society in general, and to authors in particular, of copyright. As the Internet has developed, individuals have begun to become publishers and authors in increasing numbers, especially in the genealogy field. This is good because it allows the dissemination of information from sometimes obscure sources to the entire world. But along with this I have noticed a trend toward "false copyright" and I think it deserves some attention. False copyright is when a person inserts a copyright notice in a published work without having the legal right to do so. An example would be where a person has transcribed an obituary from an old newspaper and then inserted a copyright notice -- I have seen this on some Websites and in fact there is a general notice by the USGenWeb claiming that obituaries published there are copyrighted and cannot be used for "commercial purposes." The key components of copyright law are (a) originality, (b) time, and (c) ownership. This is not a legal treatise (see http://www.copyright.gov/circs/circ1.html#wccc and http://www.pddoc.com/copyright/genealogy_copyright_fundamentals.htm) for additional information on copyright) and so I can't cover all of the "ifs, ands, and buts." However, at the risk of oversimplification in order to have a greater understanding of how genealogists can work inside the law and to encourage others to do so, here goes: Originality is usually pretty well understood. An author cannot claim copyright for pure facts (e.g., date of birth, death, etc.) but can claim copyright for the way the facts are presented (e.g., a fully composed literary obituary of several paragraphs is more than likely copyrightable; a "death notice" is likely not copyrightable.) But even if copyrightable, an older article may not have been copyrighted! The question of time is somewhat less well understood since the 1978 rewriting (written 1976, effective 1978) of the U.S. copyright law (and amended 1998). Basically if a work was published before 1923 it is in the public domain and anyone can use it. For a chart showing when various U.S. works pass into public domain, see: http://www.unc.edu/~unclng/public-d.htm. The copyright of works created after 1978 is more complicated (generally it is the author's life plus 70 years) but since I am interested in older writings it is safe to move on. Newspaper obituaries are often staff written or compiled from data (facts) submitted by local funeral homes, but even if the newspaper as a whole was copyrighted, articles and obituaries published before 1923 are certainly in the public domain. Incidentally, works that were published before 1 March 1989 without proper copyright notice are almost always in the public domain because, under the U.S. law that existed before that, a proper copyright notice was required for copyright protection. Surprisingly, ownership seems to be even less well understood in the genealogical community. Copyright can be claimed only by the original author of a work. In particular, if I run across a public domain work and transcribe it verbatim, I cannot assert copyright of my transcription since I did not create, but simply copied the original work. If I decide to go through a microfilm copy of an old newspaper (to avoid the question of time, say it is at least 100 years old), transcribe all of the obituaries and then write a book of "Obituaries from the XYZ newspaper from 1880 until 1900." I can assert copyright for my book as a whole but NOT for the individual obituaries. Why? Because I don't own the individual entries-- only the collected work. For that matter, the owner of the microfilm can't claim copyright either and for the same reason. What this means is that I cannot control the republishing of the individual entries; I would have an action only against someone who takes large extracts of my book for republication, because, in essence, they are not publishing the contents of my book -- they are republishing my book! Even if someone transcribed an obituary from my book and posted it on the Web, I would not have an action against that person because I do not own the rights to the original obituary. Copyright can only be asserted by the author/creator (or his or her legal heirs or assigns) -- not the owner of a copy (e.g., a book or a microfilm). Why is this important? Amateur genealogists (by definition) do the work they do, not for profit, but for the fun of discovery of ancestors or cousins and to learn about history. There is no commercial motive and, in fact, some amateurs become apprehensive about using information if they see a big Copyright Notice in the information they are using or want to include in the family tree compilation. Bottom line? I believe that we do a disservice to the genealogical community by asserting false copyright and I would like to see the practice stopped. People would be more willing to publish (online and off) their own family histories and include an obituary from Grandaunt Kate -- if they were not intimidated by a false copyright notice. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Previously published in RootsWeb Review: 29 March 2006, Vol. 9, No. 13. Throwing More Light on False Copyright Claims By James F. Ramaley, Ph.D. (jramaley@hotmail.com) In "Examining False Copyright Claims" (RootsWeb Review 30 Nov. 2005), I urged the genealogical community to avoid the practice of placing copyright notices on works that are not eligible for copyright. See: http://ftp.rootsweb.com/pub/review/2005/1130.txt Reader comments and questions to that article fell into three categories: 1. Exactly what is copyrightable in genealogy? 2. How can a person protect against further copying of his or her work (copyrightable or not)? and 3. What is the harm in inserting a copyright notice even if the work is not copyrightable? Before commenting on these points, let me call attention to one of the most readable (and thin! -- just 58 pages) books that covers general U.S. copyright: It's "101 Questions about Copyright Law," by Andrew Alpern, (Dover Publishing, 1999). Although I got my copy at the Library of Congress bookstore, the paperback is widely available at a price of less than $5. Alpern is an architect and architectural historian who is also a practicing attorney in New York, specializing in intellectual property law. His book should be required reading for anyone who wishes to, or needs to, understand copyright. Now to No. 1 point. It is important to restate the primary reason for copyright -- to spread knowledge. Copyright does this by protecting for an author the financial benefits that might be gained by copying his or her creative works for a limited period. The absolutely key criteria for any work to be copyrightable is that it must be ORIGINAL and CREATIVE. Original means original with the author -- don't expect to copyright something that you have discovered and copied or heard from another party. Also, facts -- such as birth, marriage, or death dates -- are never original and are usually given as prime examples of non- copyrightable material. Creative is more than a flowery description of facts. We recognize creativity in a new play or a new song but when we try to make our family histories more interesting by simply changing paragraph structure or by using various phrasing for "he died in 1839" we are not being creative -- in the legal sense. In genealogy, most citations are to works that are in the public domain such as the factual material in an obituary or in a church registry. Such data is not subject to copyright and so only the CREATIVE text that is original with the author is copyrightable. However, if you are preparing the "Definitive History of My Perfect Family in America", the entire book -- as a whole -- is copyrightable even if many of the citations and facts therein aren't. This means that you can't prevent people from copying any of the noncopyrightable material therein, but they can't (legally) copy or reprint your ENTIRE work without your explicit permission. Since most amateur genealogists are usually interested in just getting the facts of their ancestry correct and sharing this information with other people researching their direct and/or connecting lines, this may be enough on the first point. For more on what is copyrightable, please see Alpern's book. Point No. 2. Many who contacted me did so because they had had an unpleasant experience in which large sections of some genealogical work of theirs had been copied off their website, etc. and incorporated into someone else's genealogy -- without even the courtesy of an acknowledge- ment. They felt that the hard work they had done in assembling their history was unfairly taken and used by an uncaring cousin. This is all too common. We amateur genealogists are driven neither by a profit motive nor did we start our hobby with a goal of becoming famous as a family historian. Generally we began our study to learn more about our ancestors' lives and to share this knowledge with others. But we are only human and become upset when our work and efforts are slighted. This upset is probably magnified in genealogy because our study of ancestors leads us to appreciate the legacy we have been given. We are quite willing to share with a newly found cousin, but if that person re-copies the facts we worked so hard to discover and fails to mention our help, we become irritated. Ironically, a cause of the copier's failure to cite sources may stem from an implied threat of suing for "copyright infringement." Perhaps we would get better results if we replace the (usually false) copyright notice with something like: "You may use all data on this website but remember that genealogical work is always subject to revision. If you copy some of my material, your readers will appreciate a citation to my site so that they may see if my data has been updated." (And, of course, the "golden rule" of source citation requires that you cite your sources as you would have others cite you.) Assembling the facts that go into a family history is not usually a creative act in the view of copyright law. It does represent many hours of hard work and expense in visiting courthouses, copying census records, or analyzing conflicting "facts." This effort should be appreciated and acknowledged, but hard work and money spent do not necessary result in something that becomes protectable intellectual property. If you rely on copyright to correct bad manners (or ignorance about citations) you are certain to be disappointed. I was also told of instances where a local genealogical or historical society assembled public domain material (cemetery readings in one case), adding nothing original but a foreword, and placed the copyright symbol on the first page to "protect" it. This is risky as a fund-raiser because someone could come along and put up the same (public domain) information for free. If a society wishes to provide such information as a service to members and attaches a reasonable fee that recovers the cost of the materials, plus a small bonus for the society's treasury, fine. But don't set an exorbitant price hoping to get rich with such an item -- and don't make false copyright claims about it. It is possible that you could try to prevent further copying of your genealogy by inserting a "terms of use" notice for your work where you prohibit any user from redistributing the material to others. But this seems counter to the spirit of amateur genealogy. If you really don't want others to share in your discoveries, perhaps you should reconsider why you are even publishing anything. The bottom line is that if you have published or deposited in a public library some family history (or shared that information or GEDCOMs with anyone), it will certainly be copied and you will not be able to prevent that by a copyright claim. Since most genealogists are interested in having their family notes found and used by others, depositing and sharing genealogical work is good. But don't expect to be able to control further use or misuse of your work. Point No. 3. Question 111 (p. 56) of Alpern's book discusses the "intersection of copyright law and criminal law." I quote from his answer (with his permission): "At the lesser level of a violation, the copyright law provides that falsely representing a material fact in a copyright application or other written statement filed in connection with an application carries a fine of up $2,500. A maximum fine in the same amount may be imposed on one who fraudulently removes or alters a copyright notice on a copyrighted work, or who fraudulently places a copyright notice on an item, or who fraudulently distributes -- or imports with intent to distribute -- an item with a copyright notice on it that the person knows to be false." In other words, falsely asserting a copyright is also a violation of the law. I want to stress the value of registering material that you believe to be copyrightable. Since registration with the copyright office is no longer required in order to obtain some of the benefits of copyright, many people just put a copyright symbol on their work and forget about it. However the law specifically requires that a copyright must be registered before an infringement suit can even be initiated. Moreover, attorney fees and other damages can be recovered in an infringement suit only if the alleged infringement occurred AFTER the work has been registered -- a very valuable incentive for registration. If you have not registered your copyright and send a "cease and desist" letter to an alleged infringer, you are likely to get a letter back that says, in effect, "I will be glad to stop the alleged infringement if you will please provide proof of ownership and of registration." Registration costs only $30 and instructions are available at http://www.copyright.gov/ [Editor's Note: Prevent misunderstandings by citing your sources properly and acknowledge specifically the work of others (not a "thanks to everyone in the world" note). If you find information about your elusive JOHNSON family at WorldConnect, for example, posted by Mary SMITH, remember that her sources are NOT your sources. Don't claim to have found the information in the Johnson Family Bible (that she cites) if you haven't seen it. See "Creating Worthwhile Genealogies for our Families and Descendants" http://rwguide.rootsweb.com/lesson12.htm Doing genealogy "just for fun"? Why should you go to the bother of recording and citing your sources of information? Well, would you create a shoddily made quilt or dollhouse for your granddaughter? Of course not. Then why would you create a scruffy family tree for her?] Tammy Brazeau wrote: > On this subject, what would you do if a relative decided to use ancestry.com > to copy all of your hard work, and even call the tree the same as what you > called yours, for the exception of a ). I am very upset over this as I have > spent so many hours researching and have spent a lot of money on doing this. > Should I confront this person? or just leave it alone. I wouldn't mind if > she sourced me on the information she had taken, but she didn't. I know its > my tree she is taking from as she has my husbands family in hers, and they > do not relate at all to her. Plus, when I found that she was doing this, I > put a fake name and info in the tree for 1 day, and alas the next day it was > in hers. (Don't worry I removed the fake name out within 8 hours) > Any how, I would like to know what others think I should do about this. > Tammy >