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

Tuesday, October 14, 2014

Ownership and Genealogy -- What is and What is not Owned

Ownership is a complex concept. I have posted before on this subject and yet there is always more to say. Whole books have been written on just one or two aspects of the concept of ownership. I spent a great portion of my life in court arguing about the various aspects of ownership. There are huge amounts of folklore and fable that are engrained in our Western European society concerning this subject. Genealogists are not immune to the vagaries of ownership concepts. We have our own set of beliefs that have passed into the realm of urban legends, stories that take on a life of their own and refuse to die.

Persistent urban legends can sometimes be traced back to an innocuous factual event. For example, I usually refer to urban legends and similar stories as "alligator stories." This refers to the persistent legend that there are alligators in the New York City Sewers. According to contemporary news accounts as shown in the Wikipedia article "Sewer alligators," there really were alligators in the sewers.  So, what are the equivalent alligator stories perpetuated by genealogists?

Number one on my list is the concept claimed by too many genealogists that they somehow have acquired ownership of their ancestors. Unfortunately, unlike the germ of truth in the alligators in the sewer story, there really is no basis for this claim of ownership. The basic principle is rather easily expressed: all of the descendants of any particular ancestor have an equal claim upon him or her. Spending time and money to discover facts about the ancestor does not confer any rights to control or ownership. The confusion arises from the concept of copyright mingled with a dose of plagiarism and a dollop of the misapplication of a claim of work product. For all the beliefs stacked up in favor of the ownership concept, there is no legal, moral or any other type of support for the concept. In some instances, the concept of "ownership" when applied to genealogical research boils down to a simple case of ego. The claiming researchers want the recognition that goes along with spending time on a difficult subject.

Why do I keep returning to this topic? The answer is simple. I keep getting reminded of these claims to ownership, day after day.

Is there a point at which genealogical research can be subject to some arguable claim of ownership? Yes, if there is a legitimate copyright claim and then that portion of the work subject to a copyright claim would become the property of the copyright owner, i.e. the author of the work. To claim an ownership in any portion of your genealogical research you would have to show that you do not fall under any of the provisions of the United States Code: Chapter 11, Section 102 (b) which states:
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
In addition, facts cannot be copyrighted. You would have to add some original work to the research rather than just the facts and even then, only the original work would be subject to copyright claims. The second principle is contained in the word "original" as explained in Subsection (a) of the same statute:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
Tell me, if you can, which of these categories covers your pedigree chart and accompanying sources?

Where does genealogical research begin to be original in the sense intended by the copyright law? Only if you begin writing your own stories and embellishments to the history of your ancestors. But as clearly, stated in Subsection (b) cited above, claims of ownership to genealogical discoveries are not covered. In any event, copyright has a term. All works created prior to 1923 in the United States with the exception of some unpublished works are now in the public domain and not subject to copyright claims. Why then would you gain ownership of sources long free from any claim of copyright?

Neither plagiarism nor claims of work product imbue the claimant with any kind of ownership. Both of these types of claims have narrow, limited application to genealogical research. Out of courtesy, if we rely on the work of others, we owe them a moral duty to acknowledge their work, but this duty does not confer ownership on the originator. This is especially true for work published in an online family tree where there are perhaps others working and contributing on the same family lines.

The person claiming ownership faces a serious dilemma. Either they maintain their claim of ownership and never publish their research, in which case, the work is likely lost upon their death or they freely share their work with family members and give up their unfounded claims to ownership.

There is no other way to claim ownership of your genealogical research.


  1. I keep hearing the expression "facts cannot be copyrighted" which I admit is true in the USA but not true in Europe or other more enlightened communities.
    Over here in Europe facts are copyrightable and courts have upheld this right.

    It comes under the database right section of copyright law which protects not only "facts" but "sweat of the brow".

    The 1997 legislation on Database Right states-
    “Acts infringing database right
    16. (1) Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database.
    (2) For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents.”
    As you can see from the above even repeated use of insubstantial parts of a database could constitute breach of database right which is a form of breach of copyright.

    Eventually as with common copyright the USA will be dragged screaming into line with the more advanced societies, until that time I am afraid will continue to put up with erroneous claims that "facts cannot be copyrighted".

    1. Unfortunately, you did not include the definition of a "database." Thanks for the heads up about the Copyright and Rights in Databases Regulations 1997 (the "Regulations"), which implemented into UK law the provisions of the 1996 EC Council Directive on the legal protection of databases and came into force on 1 January 1998, by way of a "database right". My response will have to be made in blog post rather than a long Reply. Thanks again for the comment.