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

Monday, July 14, 2014

Who owns the stories of our ancestors?

Many of us have stories handed down from the past through our families. Some of these stories come with written journals and photographs. Sometimes the stories stretch back in time, others are personal to the storyteller. In my own family, we have some monumental stories. One in particular has even been made into a motion picture. In the course of doing family research, it is not unusual to find that a venerated family story has little or no basis in fact. Genealogists have come to categorize certain of these stories and recognize them as myths. But the real question involves ownership. Who owns the family story or does anyone.

One of my commentator raised part of this issue by sending me a link to a blog post entitled "The Right to Write" from the New York Times. The question of "ownership" is a difficult one to address. In the case of ancestral stories, family members become emotionally attached to their particular version of the story and feel that any other version is not "true." They essentially say, this is the way my mother told me the story and therefore this the true version. In saying this and in taking this attitude, they are in essence claiming ownership of the story and excluding the possibility that anyone else has a different version of the same story.

Some stories defy verification. In some cases even if a current researcher shows categorically that the story was impossible the way it was told, the story will persist through subsequent generations. One aspect of the story involves copyright issues. If the story was "fixed in a tangible form of expression," such as a letter or diary it may be protected by copyright. In these cases ownership of the copyright can become and interesting issue, especially if the originator of the original copyrighted document is deceased and the interest has passed to his or her heirs. For example, an unpublished work, where the death of the author is not known is protected for 120 years from the date of creation. But in some cases, the work may still be copyrighted after 120 years if there is a doubt about the date of creation or the date of death of the author. Additionally, if the work was created outside of the U.S., then the term of copyright protection is governed by the jurisdiction where the work was created.

So written stories fall into a different category than oral traditions. Let's suppose a hypothetical situation. I have heard my mother tell me a story about my ancestors for many years. I decide it is time to write down my mother's memories and I include the stories she has told me about my family members. Ignoring the issue of copyright, what if another family member reads my "stories" and violently objects to having the story spread around the family or even having the story in writing? Can I ignore the relative and go ahead and publish my version of my mother's version of the story? Do we get into issues of privacy? Let's further suppose that the story involves only people who are now long dead. Does  that change the issues at all? Let's further suppose that the story, although it deals with people long dead, tends to cast an unfavorable light on the objecting relative. Can I tell the story my way and ignore other family members or do I have some duty not to make them unhappy or disturbed?

What is the family member insists that the facts are different than those you have heard and further insists that you change the story to reflect his or her version? What if you are then motivated to do further research and prove to your satisfaction that both versions of the story are untrue and the real facts are even more disturbing than originally related by your mother or the relative? In this case, ownership is more complicated than merely determining if someone has a copyright or not.

The story that I referred to above about my ancestor is contained in a book that this arguably still under copyright. But the story is one related in writing to the author of the book from a grandson of the subject of the story. Some of the elements of the story involve historical incidents and figures that can be verified. The general outline of the story is believable and certainly true, but the details are no where else repeated. The writer of the story was only five years old when the main subject of the story died. So it is supposed that the details of the story came from other family members' memories and that the story may have been written as long as 23 years or more before the story's inclusion in a printed family history. I have outlined this before in a post entitled, "Sitting with a Corpse."

Here the issue is who owns this story? The person who told the story or the first person to write it down? When I ask about ownership, I am really asking whether or not I have a right (or a duty) to verify and correct (if necessary) the "facts" of the story as told. Other than reproduce the story over and over again, the descendants of the subject of the story have not hitherto been constrained to question either the subject or basis for the story as transmitted. In fact, certain aspects of the story have achieved almost scriptural categorization. How may people would I offend if I found that parts of the story were without historical basis? Am I duty bound to reproduce the story in its present form and never question the details?

All of these questions are difficult to answer and the answer will change with your stories and your version of those stories. The issue is much more complicated than merely determining who owns an old diary found in a trunk in the attic. It involves the historicity of the stories as well as the feelings and attitudes of the family members who may remember the story a different way.


  1. James, many of the points you raise had to be considered before I published my "real-life" genealogical thriller novel, "Where's Merrill?" We had to consider both the legal and moral implications of publishing a sensational (but true) family history saga without consulting and gaining the approval of every traceable descendant of the family in question. Even though the vast majority of the characters in the novel are deceased, they are not "owned" by the single descendant who commissioned their discovery. We were advised that some living descendants may object to the details of their forefathers' lives being put into the public domain, and being used for potential commercial gain. It's a sensitive area. The writer of a biography about a deceased celebrity or historical figure cannot be sued for slander ... but he/she could cause family rifts among living relatives, and then be pursued as the cause of distress, etc.

    In the end, I decided to play it safe. Fiction writers face very few dilemmas about story ownership, even when they include passages featuring well-known but deceased persons. The case for the defense is "it's made-up fiction," simple as that. So I reluctantly changed the names of all the people in the real well-researched Family Tree of "Merrill." As such, it qualifies as a fictionalized account of a true story, and the author is protected by nonsensical extra disclaimers about similarities to living or dead people being coincidental. Then again, how could a living family relative detect a similarity with an ancestor that he or she never knew existed?

    On the other hand, to maintain a fair degree of authenticity, I retained the places and dates where many key events in this family history saga really happened ... so a competent genealogist could start to unravel the disguised names, and "verify" the thrilling facts, if they so wished.

    Thankfully, most readers of "Where's Merrill?" appreciate that part of the excitement of this story is that it is TRUE. It is not some far-fetched tale dreamed up in the creative mind of crime writer. If nothing else, I am promoting the thrill of real ancestry research.

    Some people are hard to convince though. Despite a glut of 5-star reviews, one reviewer of "Where's Merrill?" wrote that the story was simply NOT BELIEVABLE. And there was me ... worried about issues linked to slander, story-telling ownership, copyright, moral distress, etc. That's [real] life!

    1. Wow, thanks for the comment. This exactly illustrates a major part of the problem and the considerations.