Some copyright basics for genealogists

A reader asked, "Is it against the law to publish a book containing pictures of the tombstones and information for a minimal profit?" First of all, as an attorney, I cannot give legal advice about a specific legal question in this format. Secondly, as an attorney, the question itself raises even more questions. My answer will be general in nature and should not be considered as legal advice concerning any particular instance.

The phrase "is it against the law" is the first issue. We have a First Amendment to our Constitution in the United States and there are no laws against publishing books. I think what the person is asking is whether or not a person would incur any liability for using pictures of tombstones (I prefer the term gravemarkers) along with a transcription of the inscriptions on the gravemarkers. The answer to this question is, assuming the person publishing the book or whatever, took the pictures or had the permission of the person who took the pictures, there would not be any liability. It doesn't matter if the book were published for profit or not. However, in another sense, it is illegal to violate the copyright laws of the United States and there can be both civil and criminal consequences. If I found a picture of a gravemarker on the Internet and simply used that picture, without permission of the owner, I would be violating the copyright laws and my use would be illegal. If I went to a cemetery and took pictures and then compiled them into a publication, either a book or online, I would own the copyright to the pictures. I could stop someone from using my pictures, but not from going to the same cemetery and taking their own pictures. See my last post on my opinion as to whether or not the gravemarkers themselves are copyrighted.

It would be a good idea for anyone interested in publishing either physically or electronically, to have a general idea about copyright. Please read the basic introduction on the Library of Congress, United States Copyright Office Website. Copyright Basics is a twelve page document in pdf format which can be read online or printed.

If you read the document, you will see that the gravemarkers are not copyrighted. However, any photograph of the gravemarker would be automatically copyrighted under our current law. You can also see that the inscription on the gravemarker could be copyrighted and in some instances, the design of the gravemarker could also be copyrighted. Currently under U.S. law a copyright attaches automatically at the time the work is created or fixed in a copy. There is no longer a need to register the copyright or even mark the material with the copyright symbol. But both are certainly good ideas. Registration is also necessary before an infringement suit may be filed in the courts.

Since genealogists deal with old documents, we are often interested in how long the copyright can last. This is now a very difficult question to answer and it is probably a good idea not to count on works being in the public domain without competent legal advice.

Again, please refer to the Copyright Basics circular from the Library of Congress, United States Copyright Office.