There are numerous other questions about copyrights in the genealogy community. If I find information in a book, can I legally copy that information and then republish it elsewhere? How about looking up genealogy information on a CD-ROM disk and then sending the results to someone else? I also hear complaints about genealogy data being offered for free that later ends up on a CD-ROM disk being sold by a commercial company. Questions about copyrights arise time and again.

There are no quick and easy answers to these questions. However, we can examine the facts and the laws involved to at least narrow the discussion down a bit. I will focus only on copyright laws in the United States. The laws in other countries will probably be similar but obviously will vary in details.

First we have to define what is a copyright. A copyright is an exclusive right to reproduce a "work of authorship," to prepare derivative works, to distribute copies of the work, to perform the work, and to publicly display the work. A work of authorship must be "original" and must be fixed in a "tangible medium of expression" in order to be protected. Genealogy publications, both electronic and printed, generally fall into the "literary works" category.

The phrase "public domain" refers to all works that are not covered by copyright. This includes works that were never covered by copyright or any works on which the copyrights have expired.

All books, music and other works published in the United States before 1923 are public domain. If you have a copy of a genealogy book published before 1923, you may freely copy anything from that book and republish it. Items published from 1923 through 1977 were covered by copyrights if the author placed a clear copyright notice on the original work. Most books published in 1923 and later do display a copyright claim. Those copyrights lasted for 28 years, plus the copyright holder could obtain an extension for up to 67 additional years. Those works may or may not still be under copyright today. If the original copyright holder is now deceased, his or her heirs may have renewed the copyright. Therefore, you must be careful before copying data from works created in those years. Unfortunately, there is no central copyrights database to check.

In 1978, the U.S. copyright laws were changed in such a manner as to make almost everything copyrighted unless specifically released to the public domain by the author. While the wording of the law is a bit complex, the results are simple: you won’t be able to copy that information for many years yet without the copyright holder’s permission.

There is an excellent chart that explains when copyrighted works pass into the public domain. This chart was created by Dennis S. Karjala, Professor of Law, Arizona State University and can be found at www.progenealogists.com/copyright_table.htm

While data printed after 1978 generally is copyrighted, there still are exceptions. Certain things can never be copyrighted, such as ideas, facts, events, news of the day, concepts, principles, Laws of Nature, or discoveries. (I will avoid mentioning patents and trademarks, as those generally are not an issue with genealogy information.) Also not copyrightable are blank forms, plain calendars, and lists or tables taken from public documents or other common sources.

Facts cannot be copyrighted, nor can "lists or tables taken from public documents or other common sources." A simple listing of dates and places of birth, marriage, and death cannot be copyrighted. These facts are public domain (in the United States but not always in other countries) and the mere republication of these facts results in more public domain data. Keep this in mind when you publish your genealogy information online or on paper. If you simply publish facts taken from public records, your publication is not copyrighted. However, if you add biographies and personal notes and other information you found by researching non-public records, the extra information you added probably does fall under copyright protection.

A compilation is a collection of works or data that receives copyright protection whether or not the works it contains fall under copyright laws. A book that contains transcribed records is a compilation. Until 1991, compilations were protected by copyrights as the authors had expended considerable effort to compile them into a new work. However, the U.S. Supreme Court threw out this "sweat of the brow" theory in its decision, "Feist Publications v. Rural Telephone Service," (499 U.S. 340). Since then, the U.S. National Genealogical Society and other organizations have worked diligently to have genealogy compilations covered by copyrights. In fact, the copyrights seem to hold up if the compilation includes originality in selecting, arranging, explaining or interpreting the original data.

For instance, if the original records of a town are difficult to read because of faded ink or poor penmanship, an expert historian with proper experience may be able to decode the information properly and then publish that interpretation of the original records. The interpretation involved constitutes originality and therefore may be copyrighted. Conversely, simply republishing data already published earlier generally does not fall under copyright. If you reprint a book containing a compilation of vital records and the original book was printed before 1923, your new publication is not copyrighted. This is true even if you rearrange the data.

At first glance one would think that most of the genealogy data published on CD-ROM or online would be free of copyright. However, a closer look at the copyright laws reveals a different picture. Publishers of CD-ROM and online databases have two weapons available to protect their data. The first is originality, added by the electronic search capabilities of their product. That is, the capability to find a specific record within 2 or 3 seconds in a large database constitutes "originality in selecting" records and is, therefore, covered by copyrights. The original data is still public domain, but the use of the producer’s electronic search capabilities places restrictions on what you can do with the output. The second weapon is the software license. Whether you use a CD-ROM database or search genealogy information on the Web, you still are bound by the legal terms and conditions specified by the company who produced the software involved. In short, you cannot use their software for purposes other than what they allow.

If you see a request on a newsgroup or message board from someone asking for a "look up" of specific data for them on a particular CD-ROM, don’t do it! If you post the reply, you will have broken copyright laws and may find yourself on the receiving end of an unpleasant legal document. When in doubt, consult the copyrights and the software license of the CD-ROM or online database that you are using. The different producers have different terms and conditions. Some, such as the Church of Jesus Christ of Latter-day Saints, may allow for limited copying. Other producers do not allow for any copying at all. I am not aware of any major producer of genealogy data that allows for freely copying all the data.

You should also be aware of one exception to the otherwise stringent copyright laws, called "fair use." Fair use allows for non-infringing copying of a copyrighted work for such purposes as comment, criticism, news reporting, teaching, scholarship or research. In determining whether such use is fair, courts consider

1. the purpose of the work (commercial or non-commercial)
2. the nature of the work
3. the amount used in relation to the whole work
4. the effect of the use on the market value of the work.

In general, copying a small amount of a work is considered fair use unless it is the heart of the work. Going back to the earlier example of responding to lookup requests on newsgroups or message boards, such activities would appear to infringe on the heart of the work and also to have a major impact on "the market value of the work." The person receiving the information from you is less likely to purchase his or her own copy of the work, so you have illegally impacted the market value of the work in question.

Some people will say, "I don’t charge for it, so it’s legal." Wrong! Ask any lawyer. You are infringing upon the copyrights whether you receive compensation or not.

Extracting a bit of text from a long work seems to be proper under the fair use provision. For instance, in this newsletter, you will often see me quote a few sentences from a longer work, such as a program’s help file or a Web site’s description of its services. My belief is that such a quote falls under the fair use section on news reporting. The amount of text quoted is small in relation to the whole work and would appear to have no impact on the market value of the work. Of course, I always attribute the work and then give a reference as to where the reader can find the original.

Let’s return to the original question about your data being copyrighted. Let’s assume that you post genealogy information online. Your information consists of names, dates and places. That information was obtained from public and private records. You have published facts, and facts are not covered by copyright. Someone else may legally take your data and republish it as they see fit. Yes, they may even charge for this. That may not be the answer you wanted, but the U.S. copyright laws specifically state that facts cannot be copyrighted.

But you say, "Hold on! I added originality with my diligent research and interpretation." Well, you may be correct. However, I think you will have a difficult time proving that in court if your data simply consists of names, dates and places.

Those who print books or large electronic texts generally enjoy more protection. Most of the ones I have seen do show originality and added value. Most genealogy books have extensive explanations in the text that give not only the data but also the reasons why the author believes the data to be correct. Most authors write extensively about the conditions of the times and about the events of the ancestors’ lives. As such, these books would seem to fall under copyright protection. For this discussion, I will use the word "book" to include both printed and electronic texts.

Keep in mind, however, that just because a publication is copyrighted, you cannot assume that everything in the publication enjoys copyright protection. Those names, dates and places listed in the book are still facts, and as you now know, facts cannot be copyrighted. The accompanying text that explains why John is believed to be the son of Peter and Mary instead of the son of a different couple will be protected, however.

The above answers are brief and only cover the questions I hear most often. A full discussion of copyright laws would fill several of these newsletters, so I will not go further. Luckily, you can find lots of expert material online. Beware, however, of the less than expert material that you also find online.

Sites that I respect include

"Who Owns Genealogy?" by Gary B. Hoffman at www.genealogy.com/genealogy/14_cpyrt.html

"Horror On The Web" by Myra Vanderpool Gormley, C.G. www.ancestry.com/columns/myra/Shaking_Family_Tree10-29-98.htm

"Copyrights & Wrongs" by Mark Howells www.oz.net/~markhow/writing/copy.htm

Other articles that are not specific to genealogy but which contain information that applies to all areas of copyright law include:

"10 Big Myths About Copyright Explained" By Brad Templeton www.templetons.com/brad/copymyths.html

"Copyright & Fair use" by Stanford University Libraries fairuse.stanford.edu/

"Copyright and Fair Use in the Digital Age Q&A with Peter Lyman" by the Educom Review Staff www.educause.edu/pub/er/review/reviewarticles/30132.html

"Copyright on the Internet" by Thomas G. Field, Jr.: www.fplc.edu/tfield/copyNet.htm

U.S Copyright Office Web site lcweb.loc.gov/copyright/