Is historical research intellectual property?

If you have been involved in genealogical research or other historically related areas of study, you have probably heard many references to "intellectual property." We now even have whole law firms that advertise that they practice intellectual property law and you may hear a reference to "intellectual property rights." From my perspective, this is another one of those situations where a vague and undefinable interest is evolving into a "right."

As set forth on the website for the World Intellectual Property Organization, the definition of "intellectual property" is as follows:

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. 

IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.

From a legal standpoint, there are significant differences between patents, copyrights and trademarks. Those differences are so significant, that it is very unlikely that you will find an "intellectual property" law firm that has anything to do with patents. It is also important to point out that the United States government separates copyright from patent and trademark practice. Copyright law is administered by the United States Copyright Office. Patents and trademarks come under the jurisdiction of the United States Patent and Trademark Office. Any attorney can practice law in the area of copyrights and call themselves an intellectual property attorney. Patent attorneys, on the other hand, must be registered with the Patent and Trademark Office to practice law in this area. In Arizona, for example, there are about 500 registered patent attorneys and well over 16,000 attorneys in all areas of practice. See American Bar Association, National Lawyer Population by State (2013).

Lumping these different areas of law into an artificial umbrella called "intellectual property" obscures the fundamental differences between these distinct areas of the law. But what is more egregious is the fact that references to "intellectual property" contain references to vague "rights" that are clearly not protected by any legal process or statute. 

Now, as genealogists, we find ourselves in a quandary. We do historical research. We discover documents, most of which are not covered by copyright or any other "intellectual property" protection and we convert those documents (organize, extract, summarize etc.) into our "own work." Some of the documents we use, such as U.S. Federal Census records, are clearly exempt from any copyright protection as U.S. Government Documents. Most of the other documents we consult are either long out of copyright due to the age of the documents or otherwise not covered by any sort of protection. In some cases and in some other countries, the same types of documents may still be subject to copyright claims by the originator or the government. 

The real question, from the standpoint of genealogical research, is not the copyright status of the documents we research, but the extent to which we can claim any rights to the information and to the documents themselves when the source documents are clearly not covered by any claim of copyright? In other words, is historical research per se, intellectual property? My answer is a very definite "it depends." The answer lies in this statement from the United States Copyright Office:

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."

The best summary of the U.S. copyright law is found on the webpage, "Copyright Term and Public Domain in the United States, 1 January 2015" by Peter B. Hirtle of Cornell University.

Does historical research fall into any of those categories? No where in the area of copyright (intellectual property) claims does this issue become more tangled and obscure than with the issue of photographs both old and new. One genealogical issue that is commonly discussed with excessive claims of rights is the headstone photo. If I go out and take a photo of my grandfather's headstone, is my photo subject to my claim for copyright? My first question, of course, is why would you want to make a claim for copyright for a headstone photo? Another question, even more obscure, is whether or not the headstone itself is covered by some claim of copyright? The answer can be yes to both questions. Should we then stop making photos of headstones and publishing them online? Strict and legalistic interpretation of the existing copyright law in the U.S. would seem to mandate a yes to that question also. Sometimes, those hosting photos of headstones try to avoid liability for publishing the photos by disclaimers and other legal language. Are these disclaimers effective? Interesting question.

Let me posit a hypothetical situation. Suppose a photographer takes a photo in 1940 of your great-grandfather. You find the photo among the effects of your father when he passes away. You are surprised and happy to have a photo of your great-grandfather who you never met or knew. Can you publish the photo online for the enjoyment of other family members? Some attorneys would counsel you with a long discussion about copyright and its ability to be inherited and then tell you that the copyright to the photo was still owned by the photographer and that even if the photographer were dead, you would have to have permission from his or her heirs to publish the photo. Why not just throw the photo away and avoid the issue?

Let's look at the reality of the situation. Yes, there is a potential claim for copyright. If we go to the copyright law (See the Summary above from Cornell University), we learn that a work published between 1923 through 1977 must have a copyright notice and that the failure to comply with the required formalities render the work in the public domain. Ha, you say. But then the overly zealous attorney responds, but what if the photo was not "published?" Unpublished works are protected for a period of time equal to the life of the author (photographer) plus 70 years.

This situation poses a number of seemingly unsolvable issues. First, who took the photograph? Unless there is some identifying mark on the photo, such as a the name of a studio or address etc., there is likely no way to determine the photographer. Second, how do you know whether or not the photo was ever published? The U.S. Copyright Office describes publication like this:

Published or Unpublished? Under copyright law, publication is the distribution of copies of a work—in this case, a photograph—to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes publication. 

However, a public display of a photograph does not in itself constitute publication.
The definition of publication in U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published.

You might want to read the Copyright Tutorial from the American Society of Media Photographers.

What about all the photos on Instagram, Flickr and Facebook? Now we are into another huge issue. I cannot give anyone legal advice on this issue. I recommend that if you have a real problem and need an answer that you seek help from a competent attorney who practices in the area of copyright law.

Unfortunately, the status of our copyright law in the U.S. asks more questions than there are answers. If everyone who had a copyright interest exercised their full legal rights, much of what we see today on genealogy websites would disappear and our ability to discover and document our families would be severely curtailed.

The lack of clear and concise guidelines in the U.S. Copyright Law leads some to advise extreme caution. It also encourages genealogical researchers who really have no interest practical or otherwise to a claim for copyright to assert such claims and become irate and abusive when they believe their rights have been violated. In my hypothetical above, personally, I would look at the photo. If there is no copyright mark or claim, I would consider it to be in the public domain. I would suggest that the photo was either taken by your father (in whose possession it was found) or someone else. If someone else, then the fact your father had the photo would indicate to me that it had been published. If your father took the photo, then simply ask any other heirs for their permission to publish the photo.

I cannot council anyone to take such a risk however. What about the copyright claim to a headstone? Yes, headstones can be copyright protected, but the same time limits apply. However, there is also another issue dealing with the ability of a property owner to regulate the activities on their property. Hence, a cemetery owner or operator may restrict photography on the premises.