Previously I wrote a short definition of what was meant by "Copyright" ©
and what was not. I found this article on False Copyright and thought I should pass it on to the membership. It seems to me that this article is easier to understand and gives a little more insight.
Examining False Copyright Claims
By James F. Ramaley, Ph.D
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.
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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
The key components of copyright law are (a) originality, (b) time, and
(c) ownership. This is not a legal treatise see
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: Public Domain
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 arecertainly 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.
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