Some people eat, sleep and chew gum, I do genealogy and write...

Monday, July 27, 2015

Is historical research intellectual property?

If you have been involved in genealogical research or other historically related areas of study, you have probably heard many references to "intellectual property." We now even have whole law firms that advertise that they practice intellectual property law and you may hear a reference to "intellectual property rights." From my perspective, this is another one of those situations where a vague and undefinable interest is evolving into a "right."

As set forth on the website for the World Intellectual Property Organization, the definition of "intellectual property" is as follows:
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. 
IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
From a legal standpoint, there are significant differences between patents, copyrights and trademarks. Those differences are so significant, that it is very unlikely that you will find an "intellectual property" law firm that has anything to do with patents. It is also important to point out that the United States government separates copyright from patent and trademark practice. Copyright law is administered by the United States Copyright Office. Patents and trademarks come under the jurisdiction of the United States Patent and Trademark Office. Any attorney can practice law in the area of copyrights and call themselves an intellectual property attorney. Patent attorneys, on the other hand, must be registered with the Patent and Trademark Office to practice law in this area. In Arizona, for example, there are about 500 registered patent attorneys and well over 16,000 attorneys in all areas of practice. See American Bar Association, National Lawyer Population by State (2013).

Lumping these different areas of law into an artificial umbrella called "intellectual property" obscures the fundamental differences between these distinct areas of the law. But what is more egregious is the fact that references to "intellectual property" contain references to vague "rights" that are clearly not protected by any legal process or statute. 

Now, as genealogists, we find ourselves in a quandary. We do historical research. We discover documents, most of which are not covered by copyright or any other "intellectual property" protection and we convert those documents (organize, extract, summarize etc.) into our "own work." Some of the documents we use, such as U.S. Federal Census records, are clearly exempt from any copyright protection as U.S. Government Documents. Most of the other documents we consult are either long out of copyright due to the age of the documents or otherwise not covered by any sort of protection. In some cases and in some other countries, the same types of documents may still be subject to copyright claims by the originator or the government. 

The real question, from the standpoint of genealogical research, is not the copyright status of the documents we research, but the extent to which we can claim any rights to the information and to the documents themselves when the source documents are clearly not covered by any claim of copyright? In other words, is historical research per se, intellectual property? My answer is a very definite "it depends." The answer lies in this statement from the United States Copyright Office:
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."
The best summary of the U.S. copyright law is found on the webpage, "Copyright Term and Public Domain in the United States, 1 January 2015" by Peter B. Hirtle of Cornell University.

Does historical research fall into any of those categories? No where in the area of copyright (intellectual property) claims does this issue become more tangled and obscure than with the issue of photographs both old and new. One genealogical issue that is commonly discussed with excessive claims of rights is the headstone photo. If I go out and take a photo of my grandfather's headstone, is my photo subject to my claim for copyright? My first question, of course, is why would you want to make a claim for copyright for a headstone photo? Another question, even more obscure, is whether or not the headstone itself is covered by some claim of copyright? The answer can be yes to both questions. Should we then stop making photos of headstones and publishing them online? Strict and legalistic interpretation of the existing copyright law in the U.S. would seem to mandate a yes to that question also. Sometimes, those hosting photos of headstones try to avoid liability for publishing the photos by disclaimers and other legal language. Are these disclaimers effective? Interesting question.

Let me posit a hypothetical situation. Suppose a photographer takes a photo in 1940 of your great-grandfather. You find the photo among the effects of your father when he passes away. You are surprised and happy to have a photo of your great-grandfather who you never met or knew. Can you publish the photo online for the enjoyment of other family members? Some attorneys would counsel you with a long discussion about copyright and its ability to be inherited and then tell you that the copyright to the photo was still owned by the photographer and that even if the photographer were dead, you would have to have permission from his or her heirs to publish the photo. Why not just throw the photo away and avoid the issue?

Let's look at the reality of the situation. Yes, there is a potential claim for copyright. If we go to the copyright law (See the Summary above from Cornell University), we learn that a work published between 1923 through 1977 must have a copyright notice and that the failure to comply with the required formalities render the work in the public domain. Ha, you say. But then the overly zealous attorney responds, but what if the photo was not "published?" Unpublished works are protected for a period of time equal to the life of the author (photographer) plus 70 years.

This situation poses a number of seemingly unsolvable issues. First, who took the photograph? Unless there is some identifying mark on the photo, such as a the name of a studio or address etc., there is likely no way to determine the photographer. Second, how do you know whether or not the photo was ever published? The U.S. Copyright Office describes publication like this:
Published or Unpublished? Under copyright law, publication is the distribution of copies of a work—in this case, a photograph—to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes publication. 
However, a public display of a photograph does not in itself constitute publication.
The definition of publication in U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published.
You might want to read the Copyright Tutorial from the American Society of Media Photographers.

What about all the photos on Instagram, Flickr and Facebook? Now we are into another huge issue. I cannot give anyone legal advice on this issue. I recommend that if you have a real problem and need an answer that you seek help from a competent attorney who practices in the area of copyright law.

Unfortunately, the status of our copyright law in the U.S. asks more questions than there are answers. If everyone who had a copyright interest exercised their full legal rights, much of what we see today on genealogy websites would disappear and our ability to discover and document our families would be severely curtailed.

The lack of clear and concise guidelines in the U.S. Copyright Law leads some to advise extreme caution. It also encourages genealogical researchers who really have no interest practical or otherwise to a claim for copyright to assert such claims and become irate and abusive when they believe their rights have been violated. In my hypothetical above, personally, I would look at the photo. If there is no copyright mark or claim, I would consider it to be in the public domain. I would suggest that the photo was either taken by your father (in whose possession it was found) or someone else. If someone else, then the fact your father had the photo would indicate to me that it had been published. If your father took the photo, then simply ask any other heirs for their permission to publish the photo.

I cannot council anyone to take such a risk however. What about the copyright claim to a headstone? Yes, headstones can be copyright protected, but the same time limits apply. However, there is also another issue dealing with the ability of a property owner to regulate the activities on their property. Hence, a cemetery owner or operator may restrict photography on the premises.

Sunday, July 26, 2015

Is the Microfilm Record Complete?

This past week, I was searching through the microfilm records of the Fourth Presbyterian Church in Philadelphia, Pennsylvania at the Brigham Young University, Harold B. Lee Library, Family History Library. The FamilySearch Catalog listing for these records is as follows;
Church records, 1800-1900 [Fourth Presbyterian]
Fourth Presbyterian Church (Philadelphia, Pennsylvania) (Main Author)
Manuscript/Manuscript on Film
Salt Lake City, Utah : Filmed by the Genealogical Society of Utah, 1968, 1972
on 8 microfilm reels ; 35 mm.
 None of these records have been digitized, so it is back to the microfilm viewers. In this case, I am fortunate. The BYU Family History Library has ScanPro 2000s for viewing and copying the microfilms. The challenge is that I am looking for a specific range of dates. My Great-great-grandfather, William Linton, immigrated from Canada (originally from Northern Ireland) in about 1850. His wife and family came separately from New Brunswick to Philadelphia in 1851. The exact date is not recorded but the record shows that it was from the 2nd Quarter beginning in April.

I have yet to find when William Linton came to the United States. Unfortunately, he died in December of 1851 and was buried in the Fourth Presbyterian Church Burial Ground in Philadelphia. Part of my investigation is an attempt to determine when and where he was born in Northern Ireland. The family has recorded his birthdate only as 1801 in Ardstraw, Tyrone, Ireland but the birth date comes only from his death records. The family records and those on the Family Tree, show that William Linton's father was Samuel Linton, b. 1775 in County Down, Ireland. There are seven other Samuel Lintons in the Family Tree without birth or death information. Despite the family traditions, there are no sources supporting a line that somehow moves from Tyrone, Ireland to County Down, Ireland.

Here is the problem with the Fourth Presbyterian Church records in the FamilySearch Catalog.

Baptisms 1800-1819, 1834-1835 -- Communicants (members) -- Marriages 1800-1835, 1824-1838
Family History Library
United States & Canada Film
912992 Items 3 - 4

Baptisms 1800-1819, 1834 -- Communicants -- Marriages 1800-1835 (another filming)
Family History Library
United States & Canada Film
558299 Item 1

Communicants (members) -- Baptisms 1863-1880 -- Marriages 1863-1874, 1877-1880 -- Deaths 1880
Family History Library
United States & Canada Film
912992 Items 5 - 6

Communicants -- Baptisms 1863-1878 -- Marriages 1863-1874 (another filming, 1972)
Family History Library
United States & Canada Film
558476 Item 14

Communicants -- Baptisms 1878-1880 -- Marriages 1877-1880 -- Deaths 1880 (another filming)
Family History Library
United States & Canada Film
558477 Item 1

Communicants -- Baptisms 1880-1882, 1886-1887 -- Marriages 1881-1888
Family History Library
United States & Canada Film
912993 Item 1

Pastors -- Communicants -- Baptisms 1880-1887 -- Marriages 1881-1888 (another filming, 1972)
Family History Library
United States & Canada Film
558476 Item 13

Communicants -- Baptisms 1886-1900
Family History Library
United States & Canada Film
558477 Items 2 - 3

Communicants -- Baptisms 1886-1900 (another filming)
Family History Library
United States & Canada Film
912993 Items 2 - 3

Trustee minutes 1803-1817
Family History Library
United States & Canada Film
558292 Item 1

Trustee minutes 1803-1817 (another filming, 1972)
Family History Library
United States & Canada Film
912993 Item 7

Session minutes 1802-1834, 1841-1892
Family History Library
United States & Canada Film
558473 Items 1-3

Session minutes 1802-1834, 1841-1892 (another filming, 1972)
Family History Library
United States & Canada Film
912993 Items 4 - 6

If you look carefully at the dates covered by the records and focus on those records that might help find a person in 1851 or before, you will see that there are several gaps in the records. When did William Linton leave Canada for the United States? One limiting factor is the fact that his last child, John Selfridge Linton, was supposedly born in 1842 in New Brunswick, Canada. So the most reasonable time period was likely from 1842 to 1851. 

There are only two sets of these microfilmed records that cover that time period. Even though the titles to the records only mention certain time periods, if you were being careful about your research, you would pull all of these microfilms and check to make sure the cataloging data was correct and that there were not some later or earlier records stuck in that got missed in the cataloging process. So, I am going to have to look at every one of these records.

But the more important issue is whether or not the records are complete. Can I assume that I have made an adequate (reasonably exhaustive) search if I conclude that the information is not there? Well, I am just starting to gather records on this particular point and I will probably move to Canadian records as soon as I finish with the Church records. 

The point is important. You need to be carefully aware of the time periods involved in your research. Obviously, you also need to be liberal and check many years before and after the dates traditionally recorded for an individual, especially if the individual has no listed sources. 

Saturday, July 25, 2015

New Books on and

During the past seven or eight months or so, Holly Hansen of, Arlene H. Eakle, Ph.D and I (with other contributors in the individual books such as Ruth Maness) have been writing a series of research guides for genealogists. There are now eight of those guides in print. Two of them have been put online on and all of them are available on the website store. Here are the two offerings with the link to the books:
The second book is:
The other books are being prepared and will also eventually be available on, however, they are presently available directly from the Book Store.

Add caption

I must observe that writing and editing seven or eight books at the rate of one a month is a serious undertaking. We intend to have one a month for the foreseeable future also. Stay tuned. I might also mention that the latest book on Probate is 172 pages long.

Bulldozing Records - Search Every One

"Puerto Rico, registros parroquiales, 1645-1969," images, FamilySearch (,149110202,149110203 : accessed 25 July 2015), Luquillo > San José > Bautismos 1836-1842 > image 200 of 303; paróquias Católicas, Puerto Rico (Catholic Church parishes, Puerto Rico).
Bulldozing is my term for looking through large numbers of original records, usually on microfilm but sometimes online in digital format, one record at a time. The time involved in doing this, increases in direct proportion to the number of records. Those of us who commenced our genealogical journey many years ago were used to searching microfilm records. Very, very few of these records had indexes and the only way to find individuals in the record was to start at the beginning of the microfilm and look at all of the images.

Of course, the goal of indexing the records is to shorten the time it takes to find any individual entry. In some types of records, the indexing process misleads the inexperienced researcher into a false sense of security. The researcher thinks that he or she has searched records when in fact, the index missed the record they are looking for or the information needed was not indexed at all. Because of their complexity, some types of records such as probate files and even parish registers may never be completely index. As I've pointed out in previous posts, the information in the original record may also be incomplete or inaccurate. In these cases, a record by record search may be the only way to uncover the missing or incomplete data.

The record shown in the image above for a good example of this issue. The image is selected from some Catholic Church records. Even though an index may contain the name of the infant's being christened, most indexes would not contain the names of the witnesses and the witnesses may be the individuals being researched.

The reason this issue comes up at this time is because one of my daughters and her family have just spent the last few weeks copying each image from a large number of microfilms. The reason for this activity is little bit complicated. As I have previously written, the Mesa FamilySearch Library in Mesa, Arizona has been closed for about eight months. She and her husband, my son-in-law, have been researching old English parish registers on our shared family lines. Because the library is closed, they have had no access to the microfilm records. So they came to Provo for almost 3 weeks to copy records they needed to do the research. Several of my grandchildren assisted in the effort. Obviously, since the records were only available on microfilm, there were no indexes. The only way to be sure to have access to the records was to copy the entire microphone, frame by frame.

 Online digital records with indexes hold out a promise of making genealogical research easier. But the reality is that in many cases, there is no substitute for bulldozing the records and scraping every last vestige of information available. If newly minted genealogists are never taught this principle, what will happen to the accuracy and completeness of the individual family trees? What happens when we run out of "low hanging fruit?" Do we really expect that the smartphone generation will be searching the records one by one?

Friday, July 24, 2015

Have You Thought About Hospital Records?

1916 - WW1 photo of Ward M1 at the Beaufort War Hospital in Fishponds, Bristol, England.
Granted, many of our ancestors probably never saw the inside of a hospital, but what if they did? How do we go about finding hospital records? Well, that depends. If your ancestor was a soldier or other military veteran, his or her medical records could be located along with any existing service records. If the ancestor was treated and died, then death records will reflect the place of death and sometimes the cause. If an ancestors was merely treated at a hospital and then released (escaped) finding the records might take some intensive detective work.

Hospital records are basically business records. Business records may or may not be preserved, but in some cases the hospital may have been in operation for a very long time. For example, Bellvue Hospital in New York has been in operation since 1736 and is celebrating its 275th anniversary. Just as with any other business-type records, very old records may have ended up in any type of repository, such as a state library or archives, historical society or museum. Also remember to check college and university special collections. A search on in the FamilySearch Catalog for the keyword "hospital," returns 2,422 results. Here is a screenshot of some of those results:

In another search on, I found a list of 37 collections.

Here are few more resources:

Wednesday, July 22, 2015

Direct Messaging shows up on Beta Site

One of the major issues with the Family Tree has been and continues to be users of the Family Tree that make changes that are unneeded or inaccurate and have no contact information in the program. That situation is about to end. The Beta version of Family Tree now has a Messaging Feature. Here is a screenshot of the location of the notices from the direct messaging:

The link takes you to a list of your unread messages or also a page to view all the messages called the FamilySearch Mailbox.

This is a long anticipated and awaited development. Of course, it will not solve the problem of user who refuse either read or answer their mail, but it will provide a venue where communication can take place for those users who either do not have or refuse to disclose their email address.

If you find a change or addition and need to contact the user, there will be a link to send a message on the info pop-up that will also have their name, email if disclosed and other contact information. Here is a example with the pertinent information fuzzed out.

I will be watching for the change to to be added to the website.

Tuesday, July 21, 2015

Finding an Ancestor's Address

How many times this week did you give someone your address or directions to your home? I know I did once, at least, in conjunction with checking out books at the Brigham Young University, Harold B. Lee Library. One interesting phenomena is that we all have a tendency to think that the past was somehow "less complicated" than the present. This seems to extend to our views about our ancestors. Apparently, many of us believe that no one ever sent mail to or visited out ancestors because we cannot seem to find exactly where they lived. If you think about it for even a few minutes, what about tax assessments, military recruitment, insurance information, doctor visits and hundreds of other contacts our ancestors had with the world in general? Did all these entities and agencies just automatically "know" where your ancestors lived?

In reality, there are layers of historical documents that might provide the exact address or the location of the ancestor's farm. Sometimes, finding the specific location where an ancestor lived can make the difference between identifying the right family and going off on a wild goose chase down an unconnected family line following someone with the same or similar name. I recently wrote about using directories, but there is a lot more to be said on this subject.

One time, at the Mesa FamilySearch Library, a patron came in with a piece of paper and handed it to me, asking what it was. I looked at it and replied that it was a copy of a parish register, probably from England. After explained what a parish register was, I suggested that the document gave the ancestor's address. The patron seemed surprised, not only that the document contained that sort of information, but that the ancestor had an address. This short scene is not an anomaly. In my experience, very, very few researchers take the time to establish the exact address of the location where their ancestors lived. Many are seemingly content to know their country of origin (even when that is wrongly identified). Even more, record the district, state or province and leave it at that. Most of the time, the place where a person lived is identified only by the standard, "city, state, country" asked for on the forms.

To some, looking for the exact address of an ancestor may seem excessive and unnecessary. But it many instances, the correct identification of an ancestor may only be possible when the addresses or similar location information separates them out as individuals. Granted, as we go back in time, this task becomes more and more difficult, but in many cases, fixing the location of more recent ancestors resolves the difficulty as the researcher goes back in time. My daughter recently positively identified the English parish where an ancestor originated. This fact alone opened up the entire line to further research.

For the past 100 years or so, if I want to know where an ancestor lived, I can simply look up the ancestor in a directory. Here is Utah this task is relatively easy. For example, here is a statement from regarding Utah City Directories:
About Utah City Directories

This database is a collection of city directories for various years and cities in Utah. Generally a city directory will contain an alphabetical list of its citizens, listing the names of the heads of households, their addresses, and occupational information. Sometimes the wife's name will be listed in parentheses or italics following the husband's. Often, dates of deaths of individuals listed in the previous year's directory are listed as well as the names of partners of firms, and when possible, the forwarding addresses or post offices of people who moved to another town. In addition to the alphabetical portion, a city directory may also contain a business directory, street directory, governmental directory, and listings of town officers, schools, societies, churches, post offices, and other miscellaneous matters of general and local interest. 
To see what cities and years are currently available, view the browse table above. Begin by selecting a city of interest. Once you do that you'll be able to see all the years that are currently available for that city.
Here is an entry on for my Great-grandmother, Mary L Morgan, living in Salt Lake City, Utah in 1934.

I certainly do not want to give the impression that directories are the only answer to finding the exact address of an ancestor. In fact, I suggest that the following types of documents can contain exact location information in addition to directories:
  • Employment records
  • Military records
  • Land and title records
  • Tax records
  • Court records
  • Legal notices
  • Immigrant records
  • Institutional records
  • Cemetery records
  • Mortuary records
  • Probate records
  • Census records
  • Vital records
  • School records
  • Church records
Once you get started with this list, remember that in each category of records there are many, many sub-categories.