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

Sunday, December 8, 2013

Can a copy of a public domain document be copyrighted?

Some of my readers raised issues concerning the documents in my post entitled, "An Interesting Online Conundrum." Like we always say about our research, we need to provide sources so people can ascertain whether or not what we have said is supported by some verifiable information.

The legal question presented is whether or not making a copy of a public domain work (such as the old manuscripts referred to in my post) can create a "new" work in some fashion that is subject either to copyright or some other license such as the Creative Commons License? As genealogists we should be actively concerned with this very issue. Say for example, your Great-grandfather had a will written in the 1800s. Could someone make a copy of the will and then claim that the copy was copyrighted and that you could not use the copy? What if after the copy was made the original was either destroyed or otherwise unavailable? What if someone found an old photograph, such as a daguerrotype, of one of your ancestors. As a daguerrotype it would be the only original work. Could the person who found the old image, prevent you from using the image in a book you wrote about your Great-grandfather? Could this be done under some claim of license?

By the way, there is a name for this activity of claiming copyright in public domain works, it is called copyfraud. Here is a description from Wikipedia:
Copyfraud is a form of copyright misuse. The term was coined by Jason Mazzone, a Professor of Law at Brooklyn Law School, to describe situations where individuals and institutions illegally claim copyright ownership of content in the public domain and other forms of overreaching by publishers and others who claim rights that the law does not give them; these actions carry little or no oversight by authorities or legal consequences. Mazzone pointed out ways in which copyright overreaching interferes with the public's legitimate use and reproduction of works, discourages innovation and free speech, and creates costs.
I have left in all the original links from Wikipedia if you want to look further. Here is the description of the activities involved in copyfraud from the same article:
Mazzone describes copyfraud as: 
  • Claiming copyright ownership of public domain material.[1]:1038
  • Imposition by a copyright owner of restrictions beyond what the law allows.[1]:1047
  • Claiming copyright ownership on the basis of ownership of copies or archives.[1]:1052
  • Attaching copyright notices to a public domain work converted to a different medium.[1]:1044–45
Again, I left in the links for convenience in looking at the sources. Here is the website: Copyfraud and Other Abuses of Intellectual Property Law.

Here are a few references to the issues as they have been raised in litigation and elsewhere:

  1. a b c d e f g h i Mazzone, Jason (2006). "Copyfraud"New York University Law Review 81 (3): 1026. Archived from the original on February 26, 2011.
  2. ^ Heald, Paul J. "Payment Demands for Spurious Copyrights: Four Causes of Action"Journal of Intellectual Property Law, vol. 1, 1993–1994, p. 259
  3. ^ 81 N.E. 2d 70 (NY 1948)
  4. ^ United States Court of Appeals, Second Circuit (October 4, 1984). Universal City Studios, Inc. v. Nintendo Co., Ltd.
  5. ^ United States Court of Appeals, Second Circuit (July 15, 1986). Universal City Studios, Inc. v. Nintendo Co., Ltd.
  6. ^ Reyners, Conrad (March 17, 2008). "The plight of Pirates on the information superwaves". Salient. Retrieved 2012-09-07.
  7. ^ "Diehl v. Crook | Electronic Frontier Foundation". Retrieved 2009-07-19.
  8. ^ Cobia, Jeffrey. "The DMCA Takedown Notice Procedure: Misues, Abuses, and Shortcomings of the Process", Minn. J. L. SCI. & Tech. 2009;10(1):387-411
  1. ^ "Rights and Reproductions at the American Antiquarian Society". 2009-04-16. Retrieved 2009-07-19.
  2. ^ Bogle, Ariel. "Sherlock Holmes estate charged with 'copyfraud'", Melville House, March 11, 2013
  3. ^ 3 DAYS (2013-09-13). "Conan Doyle Estate: Denying Sherlock Holmes Copyright Gives Him 'Multiple Personalities'". Retrieved 2013-09-17.
  4. ^ Masnick, Mike. "Lawsuit Filed to Prove Happy Birthday Is in The Public Domain; Demands Warner Pay Back Millions of License Fees",, June 13, 2013
  5. ^ Masnick, Mike. "Warner Music Reprising the Role of the Evil Slayer of the Public Domain, Fights Back Against Happy Birthday Lawsuit",, September 3, 2013
  6. ^ Johnson, Ted. "Court Keeps Candles Lit on Dispute Over 'Happy Birthday' Copyright"Variety, October 7, 2013
Here is another link to the subject as addressed in the context of genealogy: Throwing More Light on False Copyright Claims by James F. Ramaley, Ph.D.

I hope that clarifies my position on the matter. If you think this is not enough, please let me know and I will list all of the cases I have previously researched on the subject. But that might take some time. Thanks for the comments.


  1. Except - I am minded of the "difference" between genealogy and family history. In this case the "difference" is that between copyright and contractual conditions (e.g. over rights of reproduction) imposed as part of an agreement of access to materials.

    My concern is that many genealogists / family historians talk about "copyright", when they mean rights of reproduction. When you look at the circumstances they are discussing (e.g. publishing a copy of old documents from archives on their own web-site), it seems clear to me (as a non-lawyer!) that rights of reproduction are the crucial element. When faced with a statement that copyright can't exist in a document "X" years old, they may take that as authority to put on a web-site, in contravention of the rights of reproduction.

    Unless and until contractual rights of reproduction are talked about and understood by our community as much as copyright, and distinguished from copyright, then my concern is that people will apply correct answers to copyright questions, incorrectly to rights of reproduction, as in "The original's out of copyright, therefore I can put this company's image of it on my web-site."

    And maybe you have a better term for "contractual rights of reproduction" than I have, because I'm sure the lack of a simple word doesn't help people understand.

    1. Contractual rights of reproduction is something that lies with the originator (author) of the work, not the person making the copy. The old manuscripts, no matter how they are copied, would not fall into the category because the authors are long gone.

  2. James, thanks for sharing your insights on copyright law. It sounds like you can't claim a copyright when you publish something in the public domain, such as US federal census records. But I think companies do claim a copyright on their digitized versions of those records. I wonder if the online publishers might argue that by enhancing the images to make them more readable they're essentially creating something new which is copyrightable. Also, I think Google Books lets you view only snippets of reprints of books now in the public domain. It looks like Google is acknowledging the reprint publishers' claim to a copyright on books that should be in the public domain. Despite its reputation for supposedly trampling over copyrights, it seems like Google is conceding to copyright claims that don't have lot of merit.

    1. The level enhancement that makes a new work is subject to the decisions of the courts. On the books from Google, always check to see if someone else has the original edition.

    2. The UK census is subject to Crown copyright. According to the flowchart at Leaflet Appendix 2.pdf, UK census material published after 1989-08-01 is in copyright for 125 years after publication, while that published before that date is in copyright for 50 years from publication.

      The raw facts themselves cannot be copyrighted but images of them apparently can be. Findmypast, for instance, includes a statement “Crown Copyright Images reproduced by courtesy of The National Archives, London, England” at the bottom of each image page. Images from the 1911 census include the same text in the images themselves but older ones indicate “Copyright photograph. Not to be reproduced photographically without permission of the Public Records Office, London”.

      In the UK, an indexed database -- such as the census transcriptions -- can be copyright, but then anyone would be a fool to treat the provider's transcription as anything more than a route to the image (i.e. not to be copied verbatim). As far as I'm aware, anyone is free to make their own transcription of a census image and share it with anyone else.

    3. I guess I should have made a strong point about the fact that local national copyright laws apply to any works and currently, the US honors the length of copyright protection where the work originated. This is an important point when dealing with any recent publications (+ or - 150 years). I don't think there is that concern with documents first created and published in the 17th Century, however.

  3. Excellent post, and answers to the concerns in the comments. Well researched, and explained. I'll be passing out links to this post. Thanks!

  4. I understand that a U.S. government documents cannot be copyrighted
    because they are just facts but what about birth certificates, marriage
    records and death records and which people purchased years ago from various States when it was common because there were not websites loaded with every kind of government record at the time. What is the states of these documents purchased from various State agencies?

  5. Federal government documents are not specifically not covered by the copyright law. Most public records in the United States are "public" and not subject to copyright restrictions.

  6. When a person purchases public records such as birth, marriage, and death records from various states who owns these documents?

    1. See my latest blog post for an answer. Good question.

    2. I have looked and looked but I can find no reply. can you direct me to it.


    4. I downloaded Heritage 7 and saw where they promised not
      to steal peoples genealogy but they are putting the files on individual programs like files. The Mormons stole all 4 million of these files to form family Tree.
      needless to say I deleted every file that even had the word Heritage on it. Four million devoted Mormon members including myself were burned by trusting our own Church.

  7. Is there any company where genealogy is not pirated and is safe from being stolen? Is Ancestral Quest's use of Collaboration another word for theft?


    Collaboration is just that, you work with another person, however, you as an administrator can decide who does what if anything at all. The database file is uploaded to our servers and the only ones who have access is yourself and any other person you invite. You can give them the ability to view only or allow them to make changes the choice is yours.

    Hopefully this helps you to understand it better, it is nothing like FamilySearch Family Tree, no one can change anything unless you let them.