Copyright Mythconceptions Program Recap

Thank you to Judy Russell, The Legal Genealogist, for an extremely informative and resourceful presentation on copyright and it’s implications for genealogists.  With the wide-variety of records and works out there, many of which digitally available, it is even more important that we all take the time to learn about copyright and take all the necessary steps to ensure that we are in compliance with copyright law.  There are a lot of myths surrounding copyright, some of which we assume to be true, that can land us in hot water.  Let’s dive in and learn the truth about copyright!

What Is Copyright?

Copyright is a set of granted rights, determined by the federal government, that are granted to individuals or groups who create a work.  These rights are exclusive to the copyright holder and include:

• The sole right to make copies of the work
• The sole right to distribute copies of the work
• The sole right to any derivative works
• The sole right to display the work in public or through public performance
• The sole right to perform the work via digital audio

In order for a work to be considered for copyright, it must have some degree of originality and be in some tangible form, whether that be analog or digital.

It seems like copyright can cover an innumerable amount of things, so what does copyright NOT cover?  Ideas and processes or procedures cannot be copyrighted; however, these can be patented.  Names, titles, and slogans also cannot be copyrighted; however, these things can be trademarked.  Facts and commonly known information, such as “New Jersey is a state”, cannot be copyrighted.  Additionally, works by the United States Government, created by federal employees for federal use, cannot be copyrighted and are free to use.

The length of a copyright can depend based on when the work was created.  For example, anything created after January 1, 1978 has a copyright length of 70 years after the creator’s death; 95 or 120 years if that work was produced by a corporate or commercial entity.  For works before January 1, 1978, it depends on a variety of variables.  For a comprehensive guide for determining the copyright standing of any work, please visit Peter Hirtle’s “Copyright Term and the Public Domain in the United States” at https://copyright.cornell.edu/publicdomain; it is updated every year with the most up-to-date information.

Violating copyright law can result is several consequences, including criminal/civil law suits and statutory damages (up to $150,000) even if infringement did not harm the copyright holder.  Therefore, it is always best to err on the side of caution and always secure permission to use a work or a portion of a work, unless that work’s copyright is expired or it is in the public domain.

Top 10 Mythconceptions

Now that we have an idea of what copyright is, let’s jump into Judy’s Top 10 Copyright Mythconceptions.

10. It’s not copyrighted because it doesn’t have a copyright symbol or notice of copyright.
While this was the case in the past, a new law in 1989 makes it optional for all creators to obtain a copyright notice or symbol to get copyright protection for any works produced after 1989.  Works produced before 1989 may still be protected without any copyright symbol or notice so please refer to Peter Hirtle’s “Copyright Term and the Public Domain in the United States” at https://copyright.cornell.edu/publicdomain.

9. It’s not copyrighted because it is not registered with the Copyright Office.
There is no provision in the law that requires a work to be registered with the Copyright Office in order to gain copyright protection.  According to the law, copyright protection is automatically guaranteed upon creation of the work.  Additionally, copyright registration can occur at anytime during the tenure of the copyright, even after the creator dies.

8. I own a copy of the work, so I own the copyright.
Ownership of an item is entirely separate and apart from ownership of the copyright.  For example, even thought you may own a copy of a book, you cannot make any copies of the book since you do not own the copyright.  This also applies to one-of-a-kind works that you may own the only copy of; the work was still produced/created by someone else who actually owns the copyright.

7. If I just change the work a little bit, I can use it and get a copyright.
Unfortunately, only the copyright holder has the right to create derivative works, or works that are based off of the original work.  These include translations, adaptations, and revised editions.  For example, if I have a photograph of a particular bird, even if someone changes the contrast of the photo, I still own the copyright and they are technically infringing on my copyright.

6. It’s okay to use this because the original is out of print.
Copyright does not care about how many works were produced or their current availability.  Even if the copyright holder is dead and no other heir can be located, the work, referred to as an orphaned work, is still under copyright protection.

5. Using less than 10% of a work means it is fair use.
There is nothing in the law that codifies a specific amount of a work that qualifies under the Fair Use Doctrine.  There are multiple factors that are part of Fair Use, including:

• Purpose and character of use (educational, personal, profit)
• Nature of the copyrighted work
• Amount of work used and substantiality of portion to entire work (the heart and sole of the work)
• Effect of use on potential market of the work
• Is the new work transformative from the original?

Please check out the National Library Association’s Fair Use Evaluator for more information.

4. It’s not a copyright violation if I don’t make money.
You do not need to profit from someone else’s work for you to violate copyright law.  While the nature of your work will be considered as one factor under the Fair Use Doctrine, it is not the sole determining factor.  Non-profits, even though they are not producing anything for profit, are still bound by copyright law to the same extent as an individual who is producing a work for profit.

3. It’s ok to use this because I found it posted online.
Just because something is posted online, does not mean it automatically falls under the public domain.  Quite contrary, posting something online is considered a tangible form and is afforded the same copyright protections from the moment it is posted online as something published in paper.  For example, a picture of a gravestone on Find-A-Grave falls under copyright protection from the person who took the picture as well as Find-A-Grave; however the information on the gravestone is not copyrighted because it is fact.  Many genealogy databases, such as Find-A-Grave and Ancestry.com have very liberal licenses for using their content so always check the Terms and Conditions to see what you can use freely.  If things are posted online under a Creative Commons license, then those items are free to use as long as you follow the provisions in the Creative Commons license, which can range from free-use, use with attribution, or use with citation.  

2. It’s ok because I gave the author credit.
We should always give others credit for their work, even if we have their permission to use it; that is just good practice.  However, just because you give the creator credit, does not release you from infringing on their copyright as they still hold “exclusive” rights mentioned above; it only gives you protection against claims of plagiarism.

1. But it’s MY family!
Just because the work was produced by a family member or a family member is the subject of the work, such as a picture, it is still protected under copyright law.  There is no exclusion related to works by family members.  Additionally, the subject of the work has no claim to the rights of the work; only the person who created the work can own the copyright.  If the family member who created the work dies, the copyright transfers upon death to any named individuals in the will or if ownership is not named, copyright is now under the control of the estate.

More Information

While it may seem there is no way to stay completely safe when dealing with copyrighted materials and genealogy, especially with the pervasiveness of online records, we just have to be diligent.  Try to use public domain materials whenever possible, which is currently anything before January 1, 1926; this changes each year.  Materials published by the federal government are also not covered by any copyright protections and are free to use.  If in doubt, always secure permission to use the material, in writing if possible.  Lastly, we can always use Creative Commons materials, as long as we stick to the provisions in the license.  If you have any questions, please visit Judy’s website, https://www.legalgenealogist.com/, where you can subscribe to her newsletter, read her posts on a variety of genealogy related topics, or ask her questions.