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

Friday, May 2, 2014

Telling a story and copyright

If I relate a story about an ancestor in my blog, is the story then subject to copyright? Unfortunately, there is no simple answer to this question. But asking the question opens up a whole litany of further issues and questions. One of the most important of these questions is simply this: Why does copyright law exist at all? What is there about copyright law as it exists today throughout the world and specifically in the United States and the realities of the Internet and genealogy in particular that makes this a recurring topic? An even more challenging question is whether an expectation of ownership of works comes from copyright or whether copyright law comes as result of that expectation?

Let me illustrate part of the problem using a photograph. I recently took the following photo of the Temple in Laie, Oahu, Hawaii of The Church of Jesus Christ of Latter-day Saints:

Now, if I do a Google Image search for similar images I will see a page such as this screenshot:

Of course, my photo fits all the definitions of a protected work under copyright law. But what is my real expectation in taking and then publishing the photo? Better yet, what is my motivation for doing so? The Google Images results page shows only a few of the hundreds of online photos of the same building, most of which were taken from the same perspective with more or or no clouds.

Now, what if I were to take a story told by one of my ancestors that had been retold many times and even, in one case, made into a movie and retell it in my own words? Isn't that sort-of like taking yet another photo of a prominent building or statue? Mind you, I am not arguing that my photo is not or should not be protected by copyright, I am asking questions about the applying copyright claims in the context of a re-telling or photograph of a place commonly photographed or whatever.

It is not uncommon for organizations and individuals to copy an older, historic work and then republish it using their "own words" and claim a copyright. In fact, it is not unusual for publishers to re-publish a book that is clearly not covered by copyright and claim copyright protection for their copy! Here is a citation to a book with a copyright claimed from 1980. You might recognize the title and one of the authors:

Edwards, June, Kinuko Craft, and Robert Louis Stevenson. Treasure Island. Milwaukee: Raintree Publishers, 1980.

I wonder how the two authors collaborated when Robert Louis Stevenson died in 1894 and the original book was first published in 1883. As a side note, many books published in the United Kingdom that were considered in the "public domain" in the United States are now subject to copyright by virtue of changes in copyright law in the U.S. Under the Uruguay Round Agreements Act (URAA) ownership of a restored copyright vests initially in the author or initial right-holder, as determined by the law of the restored work's source country or by the owner of an exclusive right in the United States. See Copyright Restoration Under the URAA.

Let's get back to the question of why such a "right" exists and further, why would we care as genealogists? I believe there are three main motivations all of which are fundamental human values: profit, recognition and ownership. All of these are strong motivators. If you don't believe that they are fundamental human values, all you have to do is watch a group of children play for a while, especially if one of them believes they have "ownership" of a toy or other object. 

Imagine you are walking along the beach and see a pretty sea shell. Who owns the shell? I believe almost universally that we can agree no one "owns" the sea shell, notwithstanding private beaches, government ownership etc. What if I pick up the shell? Do I now "own" it? Can I sell it? What if I string the shell into a necklace? OK, I think you might get the point. 

What if I am a genealogist and I find a story of my great-grandfather which he or some member of his family wrote down. Is that like the sea shell? Do I now own the story and can I retell it in my own words and sell it or turn it into something else I can sell? Are we into doing our genealogy for the money? Do we own our ancestors? Do we own their stories? Which of the three motivations apply? Is copyright just a big hammer to guarantee recognition (which we call attribution)?

My final question is this: if none of the three motivations apply, why are we still concerned about the copyright to our work in genealogy? If only recognition or attribution applies then why do we harping about copyright claims? Because it is the only hammer we know about?

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