Towards Defining Ownership in Genealogy

Ron Tanner of FamilySearch often speaks about “MyTreeistis” or claiming ownership of an online family tree. I commonly remind those whom I teach that we do not own our ancestors and that slavery is not longer legal in the United States and most other countries. But seriously, the question for genealogists is what do we “own” and what is not owned?

Ownership implies some sort of control by the individual “owner,” sometimes, exclusive.  But ownership is a both a legal and a cultural concept that varies considerably from culture to culture and country to country around the world.

Let me start this post by asking this question: When the Mayflower passengers landed in Massachusetts Bay in 1620 who owned America and particularly, who owned the land where they set up their first colony? It is interesting that these “colonists” were given ownership of land in amounts depending, in part, on when they first arrived in America. If you know any history, England claimed ownership of the American land, more particularly the King of England. But it is also equally well known that other European countries also claimed ownership to some of the same parts of America. Those countries included Holland, France and Spain. Wasn’t this claim of ownership entirely based on a cultural and a legal disregard for the claims of the people who already “owned” the land? So, essentially, occupation of the land by an Englishman created an “ownership” interest while prior occupation by the Indians (Native Americans if you like) conferred no such interest? It is true that in some instances the encroaching Europeans made token payment to the inhabitants for ownership of the land. But it is equally true that the Amerinds did not understand the concept of ownership by a foreign king they had never seen nor heard. In addition, it was the Europeans who set the price.

Now what does this have to do with genealogy? Quite a bit actually. As we do research about our ancestors, we are like the Europeans landing in America. What we research and what we claim as our own, is already owned by the people who are there before we do our research. In other words, we are exactly like the European settlers. We claim ownership based on mere possession and totally disregard the ownership rights (if any) of all of the other members of our family who are equally related to those same ancestors. In doing this, we are really squatters not owners.

Now, you say, but what about work product, copyright and attribution? Aren’t we the actual owners of our own “genealogy?” Apparently, this belief comes from a quasi-real concept of genealogical homesteading. If we find the information and work with it for a set number of years, we can assume that we own it. Isn’t that correct? Actually this is not correct. There is no such process for acquiring ownership, either cultural or legal. So, is there any part of our genealogical research to which we can claim ownership?

Before answering that particular question, I need to ask why the question arises in the first place? As genealogists, why do we think we need to have ownership of our research? Our Western European society, heavily influenced by English Common Law, provides for an individual’s ownership of both real and personal property subject to some important restrictions. For example, if you own your own home, is your ownership absolute? What would happen to your ownership if you failed to pay your taxes? If you “own your own home” then you must realize that if you fail to pay your taxes, then the city/county/state etc. can impose a “lien” on your property and after continued failure to pay, take possession of and sell your property to satisfy that lien. Aren’t you in effect “renting” your property, through the payment of taxes? Do you really own anything? In a strictly legal sense, we do not actually own anything. Everything we own is claimed by some government or another and could be taken from up by any claim of necessity or right by those governments.

I am not ignoring the greater religious or philosophical questions of “ownership” and how we all die and take nothing but our experiences with us and this may also apply to our genealogical research.

Without getting into a discussion of different religious, social and cultural concepts of ownership, suffice it to say that what we believe we own is based on our beliefs and our culture. For example, going back to the native population of America at the time of the first European colonization efforts, the Indians did not have the same concept of ownership as the Europeans (obviously). The ideas of individual land ownership were largely absent. Ideas about personal property ownership varied greatly from place to place. But all these belief systems of the Indians gave way to the imposition of European law and society.

If we think about this idea of ownership for a while, as I mentioned previously, we will begin to realize that ownership is entirely a culturally and legally based concept. We do not individually determine what we own and what we do not own. These decisions are already made for us by our society at large.  Any claim to private ownership is merely an illusion. Likewise, claims to ownership of our genealogy is also an illusion.

In our society in the United States, we recognize different levels of ownership. For example, land can be owned outright (fee simple) or rented. Unfortunately, when we start talking about research or writing instead of real property, the terminology and concepts get a little bit slippery. Original work may or may not be covered by the U.S. Copyright laws. In addition, we have strong moral imperatives such as work product and attribution. We can’t ignore any of these cultural artifacts that impose rights and limitations on our property, but once again, do any these issue apply to genealogical research? To answer this, I need to resort to a series of hypothetical situations.

Let’s suppose that I go onto one of the many online genealogical resource programs and compile a pedigree chart with supporting documentation. At this point, the information I have compiled consists entirely of names, dates and places with supporting documents. Assuming for this purpose that there are no copyright claims to any of the documents, a researcher’s compilation adds nothing that makes the work subject to copyright law. But what about attribution and work product? Clearly, the compilation becomes a personal work product. If someone copies the work, they should give the researcher credit for his or her efforts. However, neither the claim of work product nor the moral obligation to provide attribution create an ownership interest in the corpus of compiled genealogy. A researcher may be very upset when someone “copies” their research, but that feeling arises because of the researcher’s acculturation and not as a result of any right of absolute ownership.

Let’s further suppose that the researcher adds original comments, insights, etc. to the research. These additional original works may or may not be subject to copyright. There is no way to automatically determine at what point a fact becomes an original work. This particular function is handled on a case-by-case basis by our legal structure pertaining to copyright. Separating the “original” portions of the work from those parts that are not subject to copyright claims is extremely difficult. These issues become almost insurmountably difficult when you consider the fact that merely posting the information online on some of the various family tree programs available may seriously affect your rights to claim copyright protection. In many cases, posting the information online involves giving a license to the hosting website to the content. In other words, the researcher then transfers part of his or her ownership to the hosting website.

But here is the reality of the situation. If you publish, copy and provide, post online or do anything with your research, anyone in your family has equal claim to the resultant facts. Even if they copy those portions of “your research” that you claim to be original, the analogy that has been used in the past is like casting a bag of feathers to the wind. How are you going to enforce a copyright claim? Likewise, becoming obsessed with the issues of work product and attribution are meaningless in the context of ownership. Do you believe that someone will subsequently pay your for your work? If so, make sure you put the work into a format that can be sold as product. In other words, formally publish your work in a surname book (either ebook or on paper) if you want to “sell” the work. Very, very few of this type of publication even garners enough sales to pay for the cost of publication.

So, when you start to have obsessive thoughts about your genealogical research and begin to become defensive about others in your greater human family using or copying the information, chill out. Take a moment to reflect on the realities of ownership. I am aware of some people that are so obsessive about their genealogical research that they won’t even allow anyone to view it because they think it will be copied. This attitude stops working the moment that person dies and his or her heirs chuck the whole pile of paper in the nearest dumpster.

I fully realize that there is nothing much I can say or do to change the attitude of genealogists towards their claims of ownership to their genealogy. But you can’t fault me for trying. I am always thankful for comments, both positive and negative. But before you tell me how you are certainly entitled to your copyright claims, think that through. What are you really saying? Do you really intend to spend thousands or tens of thousands of dollars defending your work from copyists?