Documentation and Copyright
|This article originally appeared in Printed Sources: A Guide to Published Genealogical Records, edited by Kory L. Meyerink.|
A printed source represents the creative work of a person, whether in correctly reproducing actual documents in the form of a printed book or compiling a biography, history, or family history from dozens or hundreds of different sources. It also represents the publisher’s efforts (editing, layout, printing, and promotion) and money expended to help share the author’s creative work with the public. The hallmark of a good researcher is knowing how to properly use the printed creative work; this includes knowing how to (1) understand the source(s) it was based upon (documentation) and (2) respecting the creator’s ownership (copyright).
Understanding the documentation in a printed source is crucial to the appropriate use of the source. The first question a researcher must ask about a printed source is, What is the source (or sources) for this information? The answer to this question is a measure of the quality of the book’s content; knowing how to answer the question is a measure of the quality of the researcher. Virtually every printed source gives some indication as to the origin of its content. If it is a copy (abstract, extract, transcript) of an original record, then, by its nature, it will cite the original source. Many printed sources, however, are compiled sources, which generally means that their information came from more than one, and usually from several different, sources. The following discussion should help the researcher better evaluate sources that use these documentation systems.
Proper documentation is the hallmark of intellectual honesty. If the content is from the writer’s own experience and analysis, there is no need to document a statement. But where facts, ideas, examples, illustrations, etc., are from another source and are not common knowledge, the honest writer must give credit to that source.
A well-documented book gives the reader a statement of origin for every fact that is not self-evident or generally accepted. Some generally accepted facts should also be documented (because they may not be generally known to the audience). Certainly, any material directly quoted from another source needs to be documented. Also, any information taken in whole or in part (whether quoted or not) from any other source, original or compiled, should be cited. Conclusions of the author, generally drawn from the material under discussion in the text, are not documented.
Too often authors cite only quotations but do not bother to state where specific facts came from. Such oversight can be a sign of laziness on the part of the author and, if it concerns genealogical information, it indicates that the author may have been as careless in his research as in citing his sources. Citing sources can be cumbersome; genealogical compilations, such as family histories, can potentially require a source statement for nearly every sentence. Fortunately, some conventions that allow a bit of latitude in these situations have developed in genealogy.
Documentary notes are usually of two types. The source citation, with which this discussion is most concerned, tells the reader specifically where the fact(s) cited came from. Explanatory or substantive notes explain a fact related to, but not directly part of, the discussion in the text. These two types may be separated or combined, depending on the author’s and publisher’s preference. Often a source citation includes some explanatory information. Generally there are far fewer explanatory notes than source citations in most texts.
Regardless of the nature of the documentation, several important elements should appear in any documentary statement. These include the author, title, and publication information (edition, place, publisher’s name, and year) for the source cited. In addition, page references should indicate where in the source information was found. In short, the source should be so clearly described that anyone could locate it in a bibliography or library catalog. It should not take a special knowledge of the particular field to understand a reference. Subsequent references to the same work can be abbreviated if the abbreviations are clear, consistent, and conventional.
At least five different styles of documentation are used in genealogical books: footnotes, endnotes, source notes, parenthetical references, and unnumbered notes. Even if the sources of information are not clearly documented in a book, it is possible to learn something about the origin of the information. Such works are often called undocumented sources, and they pose the biggest challenge to the researcher.
Footnotes are the most common method of documenting information; consequently, they are the method most people are most familiar with. With footnotes, numbers are generally assigned consecutively throughout the text to the items needing documentation. Correspondingly numbered notes for each page are printed at the bottom (foot) of the page in the form of a citation and/or explanation. Numbers may run consecutively through the whole book or only through a chapter, beginning again at number one in each new chapter. The current preference seems to be to begin each chapter or section with number one. In some older books, notes are numbered beginning with number one on each page. This form may be related to an even older style of footnote, which genealogists need to understand because researchers still use many books produced three or more generations ago.
In earlier years, symbols (instead of numbers) were used to mark items in the text requiring notes. The reader had only to glance at the bottom of the page and find the note with the corresponding symbol. These symbols are still used occasionally, usually in combination with other documentation methods, to allow for explanatory notes. The asterisk (*) and dagger (†) are familiar to most readers. They are the first two symbols in a proscribed series of symbols used by publishers. The series was usually repeated on each page, beginning with the asterisk (*). The following were generally used after the dagger: ‡ (double dagger), § (section mark), || (parallels), and # (number sign). In addition, these could be doubled and tripled in the same sequence if more were needed or some were not available (such as the parallels and number sign, which were not used as often): **, ††, ‡‡, §§, ||||, ##, ***, †††. . .
The popularity of footnotes has diminished because of the difficulty of publishing text using them; each page had to be planned to allow space for the footnotes at the bottom. The other systems described below were simply more convenient. However, computer word processing systems have made the use of footnotes much easier, so they are regaining popularity. Indeed, The Chicago Manual of Style describes footnotes as still beloved by traditionalists, especially those in the humanities (which includes the field of genealogy) (1993, 400).
Endnotes are simply footnotes that are not placed at the bottom of the page; rather, endnotes are listed at the end of the text of a chapter or section or at the end of the book. Like footnotes, they are assigned consecutive numbers and usually begin again with number one in each chapter or section. In genealogical works (notably family histories), endnotes are often placed at the end of the discussion of each family group. Endnotes are convenient for the reader because she is not distracted by information at the bottom of the page and because the notes are grouped for comparison, which is especially helpful for op. cit. and ibid. references. Often, however, the reader prefers that explanatory information be more readily available and closer to the text; the endnote system allows for the occasional presence of explanatory notes at the foot of a page using the symbols described above.
The source note is the least common form of citation. The source note system consists of a numbered list of sources, often placed in the order they are used in the text. The items in the text requiring citation are then numbered much as footnotes are, but the numbers refer to the numbers in the source list. Readers who are not accustomed to this style may be confused by the fact that the numbers are not consecutive throughout the text and are repeated when a source is cited a second time; however, such a system eliminates repeated citations of the same source. The major drawback of this system, besides its unfamiliarity, is that separate page numbers in the same source cannot be easily cited unless added to the source list as new citations and that would eliminate the major utility of this system. However, in a genealogical application, where documents are generally only one or two pages in length (such as censuses, deeds, and wills), this system can work well.
Source notes also solve a problem encountered with consecutive footnotes or endnotes: the need to renumber the sequence when a source reference is added. Because it is the sources themselves that are numbered, the author needs only to add the new source to the source list and use the new number wherever necessary in the text. Source notes are placed much like endnotes at the end of a chapter or section or at the end of the book. Some family histories use source notes as simple lists of sources at the end of each family discussion and do not mark each fact in the text with a source number. This practice does not place the citation with each fact, but it does lessen the confusion with superscripted numbers of generations, such as John.
The parenthetical reference (or author-date) system, while less known to the average reader, is growing in popularity. It has been used in the natural sciences for several decades and is now finding favor in the social sciences and (on occasion) in the humanities. It is particularly popular where most of the citations refer to published sources. In the parenthetical reference system, a short reference to the source is placed in parentheses within the text after the fact cited from that source. The complete citation is then given in a reference list at the end of the chapter, section, or book (similar to a source notes list but without the numbers). Generally, the reference includes the last name of the author (or a partial title if there is no acknowledged author), the year of publication, and the relevant page number of the work referred to. Thus, a reference could appear as (Lackey 1980, 5). If the author’s name is mentioned in the text, only the year and page number are given in parentheses. The reference list is arranged alphabetically by author and then by date of the author’s works to enable the reader to easily find the complete citation.
The advantage of this system is its ease of use for authors, publishers, and readers. The Chicago Manual of Style calls it the system of documentation generally most economical in space, in time (for author, editor, and typesetter), and in cost (to publisher and public) in short, the most practical (1993, 640). The source citations in Printed Sources use the parenthetical reference system. For example, consider the several quotes from Dr. Craig Horle used in this introduction. Each is cited briefly in the text, and each citation refers to the same entry in the Reference List at the end of this chapter thus eliminating repetitive footnotes or endnotes.
While the parenthetical reference system is not yet the most accepted form in the genealogical world, it is growing in popularity in the social sciences and humanities, to which genealogy relates. It is used in Printed Sources because it has been adjudged by the editor and publisher to be the easiest to use for both the author and the reader. Parenthetical references provide more information to the reader at the point of use then does a simple number, and, once the reader knows which work is being cited, this note style recalls it to mind much easier. It also eliminates the cumbersome process of adding footnotes or endnotes to a prepared text, as well as the use of Latin abbreviations, with which many readers are unfamiliar today. The lack of standard approaches for brief citations of original records (censuses, deeds, marriage banns, etc.) means that the parenthetical reference system will not likely find widespread use in compiled genealogies. It does, however, work well in textual material, such as instructional books and other reference tools (of which Printed Sources is an example).
Until recently, one of the most popular and scholarly genealogical periodicals in the United states, The American Genealogist, used a form of the parenthetical reference system. However, the American Genealogist’s citation style was less structured. Many works were referred to using full citations in the text (in parentheses), including the complete author’s name, book title, and publishing information. In other cases the American Genealogist used well-known abbreviations or initial letters to cite common genealogical sources. The full reference can be confusing to the reader seeking to find the end of the reference, and the brief references may not give the novice researcher enough information. On the other hand, longer citations meant that a bibliography was not needed with the article. It also solved the problem of citing genealogical sources when there was no author’s name to use in the parenthetical reference.
Some publications include a list of sources used or a bibliography of books consulted, but do not use any kind of reference system to alert the reader about what information in the text came from which source. This is a much weaker system of documentation than those described above; it is acceptable only when a very few sources were used and it is clear what information came from which source, or when the majority of the information came from one source which is cited immediately afterwards. In such cases, the author may be bordering on plagiarism or even copyright infringement (see below) unless the information was used with permission.
Unfortunately, genealogists have been among the greatest offenders in producing such a citation system. Many books include a list of sources in the preface, acknowledgments, or bibliography, but sometimes this appears to have been done only to add an air of authenticity to the book. The Springer genealogy is an excellent example of this.
This 1881 family history purported to give the genealogy of the Springer family of America through Germany back to Charlemagne, in direct male descent through the most renowned royalty of 1200 years. The volume included no documentation except a list of references on one of the beginning pages; this suggested, to the casual reader, that scholarly research had gone into the book. Sources cited included Histories of France and Germany, Collins’ Peerage, Life of Martin Luther, History of the Reformation, and History of the Thirty Years’ War. In a nine-page critical review in the American Genealogist, Milton Rubincam fully disproved the claims of the book, focusing on the lack of genealogical scholarship throughout the text. Regarding this, at first glance, impressive list of sources (for 1881), he rightly comments:
- The inclusion in the Springer bibliography of general histories of France, Germany, Martin Luther, the Reformation, the Thirty Years’ War, etc., makes the work practically worthless. It is uncertain how English ‘peerages’ were employed in tracing the genealogy of the [German] Springer family (1941, 99).
In short, while not all unnumbered source lists lack credibility, the researcher should exercise extreme caution whenever confronted with such lists in printed sources.
Undocumented sources present the greatest challenge for the researcher, for it is much more difficult to judge a work without knowing where the information in it came from. Fortunately, it is possible to learn something about the sources for most printed books. Many of the concepts discussed earlier regarding the evaluation of printed sources are helpful when using books without source citations. The first step is to read the preface. It is the best source for information regarding the author’s purpose for the book and the methods used in compiling it, and in it the author will often give some indication of where her information came from.
In the preface of a published genealogy the author will often indicate if he wrote to every person he could find with the surname being researched, or if he searched the town records in New England of every town where the family was known to have resided, or if he traveled extensively and visited families with the surname in ancestral towns. All of those methods and others have been used, often in combination with others, to produce family genealogies.
Sometimes the compiler will indicate that her father, uncle, great-aunt, or other relative had collected the information and left it to her to organize and publish. Whatever the methods the author used, the researcher who understands them has some perspective on the sources the book was drawn from and how much faith to place in its statements.
Seek reviews of the book in question and other books and articles dealing with the same topic. Periodicals often publish articles that refute, or enhance, statements made in published books. The Springer article, cited above, is an excellent example of such information See chapter 19 for more information on the use of periodicals for book reviews and updates to published genealogies.
Guides to Documentation
Whether the genealogist is writing a book or evaluating one that someone else has written, an understanding of documentation is critical; however, the standard style guides on writers’ bookshelves do not deal with many considerations unique to genealogical writing. Fortunately, several helpful books are available to introduce genealogists to the complexities of documenting genealogical references.
A recent publication that addresses genealogists’ needs very well is Elizabeth Shown Mills’s Evidence! Citation and Analysis for the Family Historian (Baltimore: Genealogical Publishing Co., 1997), which explains how to cite and analyze sources in an excellent and very readable manner. The first half of Mills’s work provides clear guidelines regarding the fundamentals of how, when, where, and even why to document sources, followed by similarly clear guidelines relating to analyzing evidence. The second half of the book provides detailed, yet not overwhelming, instruction on citing sources. The many sample citations illustrate the formats for primary and subsequent citations, as well as bibliographic entries, for virtually every kind of source a family historian might use; these include the standard book and periodical formats as well as original and microform versions of many records. Of significance for today’s writers, Mills even includes suggested formats for electronic sources (such as CD-ROMs and Internet sites). It provides documentation guidelines not covered by any other guide, as well as instruction on how to analyze information. The book’s bibliography identifies the standard publishers’ style guides as well; in them writers will find more extensive discussions of many related topics. Mills’s book, however, may be the only guide that most genealogists need as the learn, and practice, documentation in their research.
An earlier work by Richard S. Lackey, while slightly outdated now, is still on the shelves in many libraries and will also aid the researcher who is learning about documentation from the perspective of evaluating other printed sources. Cite Your Sources (New Orleans: Polyanthos, 1980) discusses the nature of genealogical documentation and serves as a style guide for the citation of almost any genealogical document (except electronic sources). Lackey’s section on the importance of documentation, common abbreviations, and how to make acknowledgments will always be valuable. His examples and the book’s layout, while generally accurate, are not as clear as those in Mills’s Evidence!
Lackey also produced Write it Right (with Donald R. Barnes) (Ocala, Fla.: Lyon Press, 1983), a companion volume that explains how to write a family history. In addition, it contains a description (only slightly flawed) of the standard systems in use today for arranging genealogical information. An understanding of the Register System, the Henry System, and the Sosa-Stradonitz System is critical to the use of printed family histories.
An even more clear and accurate description of these numbering systems is found in Joan Ferris Curran’s Numbering Your Genealogy: Sound and Simple Systems (Arlington, Va.: National Genealogical Society, 1992). This booklet also describes the value and limitations of the most widely used and easily understood systems.
In addition to these sources, writers should obtain and use Patricia Law Hatcher’s Producing a Quality Family History (Salt Lake City: Ancestry, 1996). In addition to an extensive discussion of writing and publishing one’s own family history, Hatcher includes an excellent section on documentation that should be required reading for every researcher (not just those preparing to publish a book).
Researchers will also benefit from a review of The Chicago Manual of Style or other style guides. Despite their limitations for genealogists, they show writers how to present information in clear, logical, and structured ways. Their discussions of the numerous considerations involved in writing will help the researcher evaluate the writing of others better. (Sometimes an understanding eye is necessary to temper critical evaluations.) Understanding how a writer presented his information promotes a better understanding and appreciation of the information, even if it has drawbacks or errors. For an excellent discourse on the necessity of clearly documenting genealogical origins, see Elizabeth Shown Mills’s Documentation for Journal Articles, APG Quarterly 4 (2): 32 to 36 (Summer 1989).
Any discussion of printed sources would be incomplete without consideration of copyright law. Copyright is very important to the author, for it gives her four exclusive rights in regard to her creation (see Section 106 of the 1976 law). These include the rights to reproduce it in copies, to produce works derived from it, to distribute the copies, and to perform and display the work in public.
The convenience of photocopying has benefitted genealogists greatly, but photocopying creates the possibility of copyright infringement. Many books, including The Source, discuss copyright, so a lengthy treatment is not needed here. However, a few comments on the 1978 revision of the copyright law are of value. This law was passed in 1976 and went into effect on 1 January 1978. Genealogists seem most interested in three aspects of this law: what can be copyrighted, the provision for fair use, and the duration of copyright.
What Can Be Copyrighted
Copyright protection extends the rights noted above to the author of an original work, provided that it is set down in a tangible form permanent enough for it to be communicated over a period of time. Thus, an audio recording or written words can be copyrighted, but an unrecorded speech is not protected. The form of the expression (written, magnetic disc, audio- or videotape, etc.) can be copyrighted, but not the underlying idea, concept, or process.
Derivative works, such as a translation of a copyrighted work, can only be copyrighted if the owner of the original copyright permits such a work to be derived from his material. Private manuscripts in the possession of a repository belong to that repository (or to the donor, depending on the conditions of deposit). A transcription of such a document can only be copyrighted if the owner gives permission. Most archives and repositories will give permission if asked.
A compilation (a selection or arrangement) of preexisting materials can be copyrighted if it conveys new information and thereby becomes an original work of authorship. If the preexisting materials are themselves copyrighted, permission must be obtained if the new work is substantially based on an earlier work. It would be considered a derivative work.
Public records, including U.S. and states government publications, cannot be copyrighted. Many of the original sources that genealogists use, such as census records, civil records, county land and probate records, and tax lists are public records. Many government publications are reprinted by private publishers; the familiar pamphlet Where to Write for Vital Records is an example. If such a reprint carries a copyright notice, it does not pertain to material copied from government publications. Rather, it can only apply to information added by the publisher, such as a preface or instructions.
Certain other printed works cannot be copyrighted. These include words and short phrases, variations of lettering or coloring, mere listings of contents or ingredients, ideas, plans, and methods. Genealogists should note that blank forms, such as order forms, research calendars, family group records, pedigree charts, and other organizers, are also considered as not eligible for copyright (Johnston 1982, 205). That is because they are designed for recording information and do not, in themselves, convey information. Instructions and other information on a form may be copyrighted, however, so the best course is the cautious one: ask permission before copying substantial portions of another person’s creation.
Another category of works that cannot be copyrighted include those consisting entirely of information that is common property, such as calendars, weight charts, and tables taken from public documents. Such works include no original authorship, even if the information is arranged in a different manner when they are recreated. Recently the Registrar of Copyrights has interpreted this rule to disallow copyright protection for transcriptions and even indexes to public records (such as censuses, wills, cemeteries, and similar material). This determination is of grave concern to genealogists, for if such works cannot be protected, publishers and compilers will be reluctant to continue publishing such material.
Fair Use of Copyright
The previously noted exclusive rights of copyright owners do not exclude the fair use of the work by others. Before the 1976 law, fair use was left up to the courts to determine on a case-by-case basis. Over the years, several precedents developed and Congress wrote the concept of fair use into the new law. In any discussion of fair use, it is helpful to have the text of the new law at hand. Following is the entire text of Section 107:
- §107. Limitations on exclusive rights: Fair use
- Notwithstanding the provisions of section 106 [which deals with the exclusive rights noted above], the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- (2) the nature of the copyrighted work;
- (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- (4) the effect of the use upon the potential market for or value of the copyrighted work. (Emphasis added.)
Copies made by libraries and archives are addressed in Section 108 of the law. Most individuals have interpreted the above section to mean that researchers, including genealogists, may make copies of pertinent pages of a copyrighted book for their own scholarship or research, especially as it falls under provisions 1 and 3: it is for nonprofit educational use and comprises a non-substantial portion of the work. The law does not specify, in terms of percentages, how much is considered substantial, but many commentators have suggested that 10 percent is usually not a substantial portion of a copyrighted work.
The important considerations are the four factors listed in the fair use section. Consider how the copied portion is going to be used whether for commercial or nonprofit purposes. Determine the nature of the work being copied; some works, such as reference works or public speeches, invite a degree of fair use, while other items, such as unpublished letters, would seem to require a narrow interpretation of fair use. Therefore, one should give careful consideration to the amount of material being copied; do not copy excessive amounts from a copyrighted work.
The effect of the copy on the market for the original work may be the easiest to judge. If a book is out of print, copying a few pages should not have a detrimental effect on the market for the book. However, copying the entire book without permission, even if it is out of print, would probably affect the potential sales of a reprint. The market effect of copying a family history and or any of many other books related to genealogy could be even more substantial because relatively few such books are printed. (See Publishers and Distributors, below, for suggestions about how to purchase copies of genealogical books.)
Opinions vary regarding the nature of copies made by professional researchers for their clients. On the one hand, their research is for commercial gain, which falls under the purpose or character of use guidelines. On the other hand, if the researcher does not benefit financially from the copies (by passing the costs on, without profit, to the client), one could argue that the copies do not represent a commercial gain. The prevailing attitude seems to be that if a professional genealogist copies a few pages from a work in the process of researching and reporting findings from many works, she has not copied a substantial portion of any one work, nor has any work become a substantial portion of the new creation. In addition, the scholarship or research clause could be invoked. In any event, copying an entire work, or substantial portions, seems much more likely to be a violation of the copyright law than copying a few pages to support research conclusions.
Duration of Copyright
The 1976 law provides copyright for any new work upon its creation, not just upon its publication. Formal registration of copyright is not required but is encouraged, however, for it is the easiest way to ensure protection. Any artistic work, including a written work, created since 1 January 1978 is under copyright from its creation until fifty years after the death of the author. Works made for hire (including corporate authorship) and anonymous works are protected for one hundred years after creation or seventy-five years from publication, whichever period is shorter.
Most printed sources that genealogists deal with (especially those they want to copy) were printed before 1978. The old law, as modified by the new law, still applies to the expiration date of those copyrights. A simplified explanation: Historically, works could be copyrighted for a term of twenty-eight years from publication and then renewed (if renewal was requested during the final year of the first term) for another term of twenty-eight years. The 1976 law extends any work in its renewal term to forty-seven years past the initial expiration date, if the work was under copyright when the new law went into effect (1 January 1978) (that is, was renewed in 1950 or later). The 1992 Copyright Renewal Law provided automatic renewal (for forty-seven years) of copyright for any books copyrighted in 1964 or later. Thus, these laws provide seventy-five years of protection from the first copyright date if renewals were made correctly. Anything over seventy-five years old is not under copyright and is considered in the public domain, as are works whose copyright was not renewed when the first term expired.
Thus, any work published from 1964 through 1977 is protected by copyright if it carries the copyright symbol (©) or the word copyright. All works created since 1977 are protected (even without the symbol). If it is published, the work should be registered within five years of publication to be protected. A change in the 1976 law provides that works published after March 1989 do not need to carry the copyright symbol or statement to be protected, but its presence is highly desirable for the author’s greatest protection against infringement.
Copyrighted works published before 1964 may still be protected if the copyright was renewed. Copyrights for most books of genealogical interest were not renewed (except for books published by larger publishing companies), but the researcher must still check to be sure. Most public and academic libraries have copyright renewal books that are arranged by year; search the year the first term expired (twenty-eight years after the publication) and the previous year, just to be thorough. If copyright was not renewed, the book is in the public domain.
The following table may be helpful for applying the previous rules to current conditions.
|Date Book Published||Copyright Status|
|1978 and later||Still under copyright (should be registered within five years of publication)|
|1964 through 1977, with copyright statement||Still under copyright (automatically renewed)|
|Seventy-five years ago through 1963, with copyright statement||May have been renewed; add twenty-eight years to date and check|
|More than seventy-five||Book in public domain, not under years ago copyright|
It must be emphasized that this discussion is not a lawyer’s interpretation of copyright law. Rather, it seeks to give a general understanding of how the law protects both the copyright holder and the user in the exercise of their rights. For further information about copyright law, several books are available at public libraries, including Donald F. Johnson’s Copyright Handbook (New York: R. R. Bowker Co., 1978); New York Law School Review, The Complete Guide to the New Copyright Law (Dayton, Ohio: Lorenz Press, 1977); William F. Patry’s The Fair Use Privilege in Copyright Law (Washington, D.C.: Bureau of National Affairs, 1985); and The New Copyright Law: Questions Teachers and Librarians Ask (Washington, D.C.: National Education Association, 1977). Further information is available from The Copyright Clearance Center (CCC), 21 Congress Street, Salem, MA 01970. For a genealogical interpretation of the copyright law, see Daniel J. Hay’s The Copyright Reference Guide for Genealogists (Bountiful, Utah: Advance Resources, 1993.)