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Sunday, September 25, 2011

What is original? copyright vs. family trees online or otherwise

One of the reoccurring issues among genealogists is the "I own my genealogy" attitude, usually expressed by anguish over someone who "stole" all their hard-earned research. Unfortunately, the person with this attitude usually also wrongly believes that all of their genealogical research is covered by "copyright." The attitude and belief are further fostered by simplified lists of what is and what is not covered by the U.S. Copyright laws. Most of the simple statements you see about copyright are from a legal perspective, pure folklore and show a complete lack of understanding of what it takes to enforce a claim of copyright.

I am not going to continue the tradition, common in the genealogical community and in the population at large, by giving you a simple "Ten Steps to Copyright" or anything like that. Copyright law, in general, is very technical and not easily explained or understood. It would be nice if it were otherwise, but law is not one of the areas that can be encapsulated in a 30-second sound bite. Let's see if there is anything in a compilation of genealogical data that can be considered original under the U.S. Copyright law? First, the definition of a "work," the term used in copyright law to identify something that may be subject to copyright.

Under Section 102 of Title 17 of the United States Code, a work is defined as follows:
§ 102 · Subject matter of copyright: In general28
(a) Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. Works of
authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work.
Can you find a family group record or a pedigree chart in that list? Do you see the word "original?" Where did you get the information that went into your family group sheets? Think about how much of what you have found is actually original? Not original in the sense that you did the work, but original in the sense of created by you from your mental effort. Are you the author of the genealogical information?

The closet definition I can find in the Copyright Act that might apply to genealogy is the definition of a "compilation" defined as "A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works." Before you get excited about "collective works," there is a definition of that term also, "A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." Do you see your family group sheet yet?

The idea of originality is central to whether or not a work is protected by copyright. But what if I write a book about my family, isn't that protected by copyright? Likely, yes, unless you simply copy the information from other sources. To the extent that your work is original it may be subject to copyright.

There is a specific exclusion for copyright coverage of lists taken from public documents or other common sources. See Circular 1, Copyright Basics, Page 3, U.S. Copyright Office.

You might be surprised at how few cases there are in the Federal Court system involving genealogy or even genealogical companies. However, there are similar types of cases. The most helpful one is the U.S. Supreme Court case of Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 350-51, 111 S. Ct. 1282, 1290, 113 L. Ed. 2d 358 (1991) holding that,
This, then, resolves the doctrinal tension: Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited tothe particular selection or arrangement. In no event may copyright extend to the facts themselves.
Unfortunately for a potential claimant, genealogy does not offer an original selection or arrangement of facts. Is this the answer? All legal issues are resolved by addressing the particular facts presented. This general discussion is not intended to answer any particular legal dispute or claim.

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