Do I have a copyright to my online genealogy?

There are dozens, perhaps hundreds of websites that promote storing and sharing your genealogy online. If you do succumb to the allure of online genealogy, what, if any, rights do you lose and what rights do you maintain? Mixed in with these issues are both moral and legal questions that eventually will have far reaching consequences as to what kinds of information will find there way into online storage.

I frequently encounter people who are hesitant or even refuse to put "their family information" online. The concerns range from fear of "identity theft" to real privacy concerns. Many people are confused about online copyright issues and believe that by posting their genealogy online, they will lose their copyright and therefore all control of their family files. The status of information shared online is a very broad and complex subject that involves folklore-type misconceptions as well as basic personality issues. Unfortunately the law concerning online privacy and copyright are in rapid state of flux. Often, the legal principles involved are far removed from the actual online practices. I have addressed these issues a number of times in the past, but a recent comment got me thinking again about the issues involved in putting family information online.

Let's start with an apparently simple example. I post a photograph on my blog or on a photo sharing program like Flickr. The Flickr program has an interesting approach to copyright claims, the Filckr Creative Commons recognizes four separate categories of "sharing." These are:

Attribution means:

You let others copy, distribute, display, and perform your copyrighted work - and derivative works based upon it - but only if they give you credit.

Noncommercial means:
You let others copy, distribute, display, and perform your work - and derivative works based upon it - but for noncommercial purposes only.

No Derivative Works means:
You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

Share Alike means:
You allow others to distribute derivative works only under a license identical to the license that governs your work.

I see a number of possible issues with this system. First, it is not recognized by any legal authority. Although a copyright holder can certainly negotiate a contract for the use of the protected item, there is no Federal law recognizing this category scheme. So, assuming you post a photo online in one or more of these categories, who enforces the rule? What can you do if someone ignores the rules and creates a "derivative" work from one or more of your photos? As of the date of this post, the Attribution-NonCommercial-NoDerivs License had a content of 45,098,435 photos. Interestingly, when looking at the first set of photos from that section, one of the photos was a derivative work, a picture of a decorative pot holder. Apparently, there is not a real clear understanding of the term derivative work. (A picture of a handmade object is a derivative work of the original handmade item). Here is the U.S. Copyright Law definition of a derivative work:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

Does the Flickr hierarchy of choices add any real protection to a copyrighted work? Not likely. So what if I put my photo online, am I protected by copyright law? The answer is clearly yes. See Section 102 of the Copyright Law. If I use Flickr's system of sharing, do I lose any of the rights I might otherwise have? That is a very difficult question and could only be answered on a case by case basis.

Now, back to genealogy files. What if I put my Personal Ancestral File file online? The Copyright Law recognizes a "digital transmission." See Pub. L. No.104-39, 109 Stat. 336, 348. So, putting the copy online is publication according to the copyright law. The interesting case of, Hotaling v. Church of Jesus Christ of Latter-Day Saints is illustrative. See Hotaling v. Church of Jesus Christ of Latter Day Saints, 118 F.3d 199 (4th Cir.1997). Quoting from the case of Arista Records LLC v. Greubel, 453 F.Supp.2d 961 (N.D. Tex. 2006) "The copyright holder of various genealogy research materials sued the church after learning that the church had made unauthorized copies of the research materials and placed those copies in its library collections across the country. The church was unable to produce records to reflect whether the materials had been loaned out to the public, but the plaintiff argued that the fact that the libraries had the unauthorized copies in their collections, and thus available to the public, constituted distribution within the meaning of copyright law. Id. at 203. The court agreed with Hotaling, and ruled that the library, by adding the work to its collection, listing the work in its index or catalog system, and making the work available to the borrowing or browsing public, had completed all steps necessary for distribution of a copyrighted work. Id. But see Arista Records, Inc. v. MP3Board, Inc., No. 00Civ. 4660(SHS), 2002 U.S. Dist. LEXIS 16165, at *13-14 (S.D.N.Y. Aug. 28, 2002) (distinguishing Hotaling on the ground that proof of dissemination was not available to Hotaling through fault of the alleged infringing party and reiterating that proof of actual use by the public is usually required to establish distribution)."

The issue of putting your family file online and whether or not you have a copyright will not depend on the question of distribution, but on whether or not the information contained in the file is subject to copyright. As long as the file contains nothing but facts, names and dates, it is unlikely to have copyright protection. As soon as you add personally composed or written material, histories, narratives, or commentaries, that portion of the work may then become copyright protected. If you include the work of others in your submission, to the extent that their work is subject to copyright, you may liable for infringement.

So, the answer about having a copyright on your online genealogy has various answers depending on the nature of the information; facts or dates vs. narration, or the amount of creativity in the work. See the Hotaling case above. Likewise, if you include photos, if you took the photo, you probably have copyright protection, if not, or if the photo is old, the copyright may lie with someone else or be expired. It is a good idea to know your rights and obligations before loading files online.