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

Wednesday, December 26, 2018

Books, Ownership, and Copyright

The Western European concept of property ownership as inherited by the United States of America is a very technical and complex subject. The folklore associated with ownership is even more complex. To start out, for example, you may have heard a saying that "possession is 9/10th of the law." Unfortunately, this commonly quoted concept is almost entirely false. Genealogists, because they work with books, documents, and records, get involved in a number of issues involving property ownership of one kind or another. Focusing on the United States, the initial fundamental issue that needs to be understood is that no property rights, either for real property (land) or personal property (everything else) are absolute. Because we all live in the United States, we are all subject to the ultimate ownership rights vested in the Federal, State, and local governments.

How are governmental property rights absolute? Because governments have the right to tax property and can levy against both real and personal property to assure payment of those taxes. Simply put, if you don't pay your taxes, you can lose your property to the government entities. In addition, the United States Constitution has created other government administrated property rights that are superior to any other claims of ownership. The most common of these established property rights that affect genealogists are those dealing with rights to intellectual property through the complex, archaic, and poorly understood laws of copyright, trademark, and patents. As genealogists, there are a number of important laws from the 18th Century that still govern how we conduct our lives and our business interests but the laws of copyright affect our genealogical research lives more directly than some of the other residual laws.

The United States copyright law originated with Article 1, Section 8, Clause 8 of the Constitution which states:
[The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Subsequent to the enactment of the U.S. Constitution, the Copyright Law has grown into a strangling jungle of statutory provisions from the United States Legislature and case law imposed by the Federal Court system. The statutory law is also modified and augmented by Title 17 of the United States Code. Here is a short summary of the existing Copyright law (minus the Federal Court decisions) from the website of the U.S. Copyright Office which is under the administration of its parent agency, The Library of Congress. The Copyright Office administers the national copyright system and provides advice on copyright law to Congress, federal agencies, the courts, and the public.
This publication contains the text of title 17 of the United States Code, including all amendments enacted by Congress through June 30, 2016. It includes the Copyright Act of 1976 and all subsequent amendments to copyright law; the Semiconductor Chip Protection Act of 1984, as amended; and the Vessel Hull Design Protection Act, as amended. The Copyright Office is responsible for registering intellectual property claims under all three. 
The United States copyright law is contained in chapters 1 through 8 and 10 through 12 of title 17 of the United States Code. The Copyright Act of 1976, which provides the basic framework for the current copyright law, was enacted on October 19, 1976, as Pub. L. No. 94-553, 90 Stat. 2541. The 1976 Act was a comprehensive revision of the copyright law in title 17. Listed below in chronological order of their enactment are the Copyright Act of 1976 and subsequent amendments to title 17. 
Chapters 9 and 13 of title 17 contain two types of design protection that are independent of copyright protection. Chapter 9 of title 17 is the Semiconductor Chip Protection Act of 1984 (SCPA), as amended. The SCPA was enacted as title III of Pub. L. No. 98-620, 98 Stat. 3335, 3347, on November 8, 1984. Chapter 13 of title 17 is the Vessel Hull Design Protection Act (VHDPA), as amended. The VHDPA was enacted on October 28, 1998, as title V of the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860, 2905. Subsequent amendments to the title 17 provisions for SCPA and the VHDPA are also included in the list below, in chronological order of their enactment.
Now let's get down to some specific examples of how copyright law can affect genealogists and of course everyone else in the United States.

Let me do this by means of some hypothetical situations. Let's suppose that as a genealogist you learn about a book written by one of your relatives about your family. You try to contact your relative but find out that she is dead. You try and find a copy of the book and are surprised to learn that she only printed a dozen or so copies and all of those were given to her children and immediate family members. After a great deal of effort, you finally locate a copy of the book that you can borrow from one of the relatives who received the book from the author. Can you make a copy of the entire book? Who could give you permission to make such a copy, i.e. who owns the copyright to the book if there is one? Could you upload a copy of the book online on one of the major genealogical websites so others can have access to the book?

Now let's look at some of the laws regarding copyright. First of all, when was the book published? Hmm. You find out the book was published in 1963. Is the book still covered by U.S. Copyright Law? We can answer some of these questions by referring to the Cornell University Copyright Information Center publication entitled, "Copyright Term and the Public Domain in the United States." That publication gives us a number of possible options depending on whether or not the book (publication or work) contained a notice of copyright. So, you go back to the copy of the book and look for a copyright notice. Now we have to suppose there are two possibilities, that the book either has such a notice or it does not. For a book (or other publication or work) published from 1924 to 1977 if there is no copyright notice, then there is no claim to the copyright and the book is in the public domain because of failure to comply with the then existing formalities. Now what? Well, even if the book has no copyright claim or mark or whatever, if the person registered a copyright claim within five years of the date of publication, then the copyright is in existence for 70 years after the death of the author. There is another qualification in the event the book is a work of corporate authorship, but I will leave that issue to another post if I get around to it.

How do you determine whether or not the author ever registered the copyright? Now you step off into the morass of copyright law. To start, you can begin your search by looking in the Catalog of the Library of Congress to see if they have the required copies of the book.  Copyright registration in the time period in question involved depositing with the Copyright Office (Library of Congress) two copies of the original publication and filling out the application.

But how can you be sure the book is not covered by copyright? The practical answer to this question is you cannot. Theoretically, you could come to a reasonable conclusion that the book either was or was not covered by a claim of copyright, but even if you were to get to this point, you would still have to deal with whoever ended up with the potential copyright ownership, i.e. which of the heirs of deceased author inherited the copyright. Unless the author made a specific bequest in her will concerning the ownership of the copyright, the ownership rights would probably pass according to the law of the state where the deceased author died but the issue of the legal jurisdiction of the copyright ownership might also be difficult to resolve.

Let's suppose that the relative with the book does not want his or her copy and gives it to you. Do you now have the right to copy or republish the book? Unfortunately no. This is where the possession interest is falsely interpreted. Your possession of a copyrighted book or other publications is extremely limited. This also applies to any such book or publication that you purchase. So, even if you purchased a copy of the book from one of your relatives, purchasing a book does not confer any rights that are reserved by virtue of the Copyright Laws. It is only if the book is found to be in the public domain that you could copy or republish the book with impunity.

But what if you just want to use the information in the book? Facts are not subject to copyright, but that still does not give you the right to any portion of the book that is not factual. This issue leads us to the futher doctrine of fair use (usually the Doctrine of Fair Use). The only way I could explain the Doctrine of Fair Use would be to write a book-length post on the subject and that still would not be enough. Issues of fair use are decided one by one by the courts.

So even if you are reading this and looking across the room at your bookcase full of books, you have to realize that your "ownership " of those books is not absolute. Any book, publication, or work may be subject to copyright claims. Can you still function as a genealogist and avoid copyright issues? Yes, sort of. I do know of a few instances where genealogists have gotten into battles over copyright claims. The best practice is to become aware of the basic copyright laws and be circumspect in copying anything that is arguably subject to a copyright claim.

For an extensive discussion of fair use see Columbia University Libraries, Copyright Advisory Services, for an in-depth discussion of the issues involved.


  1. Curious. None of them his seems to be a problem unless you don’t site your source. Can you still use the information gleaned from articles provided you source your references giving kudos to the author or website you referenced in your article? How would that be a situation that Genealogists get entangled if they sited their source? What am I Not seeing?

    1. Citing a source and giving attribution with a quote or excerpt are almost always fair use. The issue is republication or duplication of an entire work either with or without attribution.

  2. I know you were trying to simplify the issues involved, but I have to comment on what you regarded as the first step -- "First of all, when was the book published?

    To me, the first step should instead be to consider, "WAS the book published?" As I am sure you know, "published" has a specific legal meaning in the context of copyright. In your scenario, of a family history in which only a dozen copies were printed for immediate family members, I think it is very arguable that the work was never published, because the general public never had the theoretical opportunity to purchase a copy.

    And after pondering the "was it published?" question, if I think it was in fact published, then the question becomes, "where was it published?" A work published outside of the United States has a lot of issues with copyright and the public domain that are less clear cut than for a work published in the United States.

    1. Currently, a copyright exists from the moment the work is created whether or not it is published. The term for this is when a work is fixed in a tangible medium of expression. But in the past the copyright law dealt with the issue of "publication." The copyright statute indicates that publication is " the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. So printing a few copies of a book and giving it to family members constitutes publication. However, if the work was an unpublished manuscript the longest copyright is the life of the author plus 70 years. So the heirs of authors who died before 1949 do not have a copyright claim. If the death date of the author or the identity of the author is unknown, then the term of the copyright is 120 years from the date of creation. This means works created before 1899 are not covered. Hence, it is accurate to say that the first question to answer is when was the book published.

    2. You might note that my post is directed solely to works published or fixed in the United States. If a work was published in another country, currently, the copyright law of that country applies. Life then becomes overly complicated.

  3. I am not an intellectual property attorney, but I consult regularly with attorneys that are, and it is my understanding that "public" also has a specific legal meaning in the context of copyright. If the author of a family history gave copies ONLY to immediate family members, then it think it is arguable that the work was not available for distribution to the "public". On the other hand, if the author not only gave copies of the book to immediate family, but also a copy to the Family History Library (or, really, ANY library) then I would agree that the work was in fact published, since a copy of the work was made available for public display.

    A work does not necessarily have to still be in manuscript or typescript form for it to be unpublished. The tangible fixed form of expression can be almost anything. In other words, a printed book can still be "unpublished" under the meaning of the term in the copyright laws.

    You are correct in pointing out that a "purchase" does not need to have taken place. So I should have written my initial comment something like "because the general public never had the theoretical opportunity to possess a copy" rather than "purchase a copy." The means by which that possession of the work by the acquirer was obtained from the author is unimportant, as long as it was with the permission of the author. Suppose the following happened: Mr. Jones went to visit his neighbor and noticed that his neighbor, Mrs. Smith, had a box of books on her table. "What are those books?"
    "Oh, they are a Smith family history that I researched over many years. I just finally paid a printer to print it."
    "Can I have a copy"
    "No, I am sorry. You are a wonderful neighbor but the books were expensive to print and so I just had enough made for me to give to my twelve children."

    In this scenario, I really have doubts that publication of the work took place. OTOH, if Mrs. Smith had given Mr. Jones a copy then, yes, it would have been published. Or if Mrs. Smith had said, "no, sorry, you cannot have a copy but I am going to give one to the local library, so you can access it there" then it would have been published.

    So really, the question only arises for a book for which a very small number of copies were printed on a topic of very narrow public interest. But that is exactly what most family histories are. Since it is usually difficult, if not impossible, to know whether publication of any specific family history took place, then a cautious person would, instead of looking at the year in which the book was printed, look instead at when the author died and add 70 to that for the year in which it could be clearly reprinted without anyone's permission. As an extreme example, suppose Mrs. Smith was 22 when she had her family history book printed. And suppose the year was 1922. And suppose she died in the year 2000, just after her 100th birthday. If the family history was published, then it is already in the public domain, and has been for years. If, however, it was not published, then it is still under copyright protection, and will be until 2070. That is why WHETHER a book was published should be the first consideration.

    1. You are coming at this issue from the wrong perspective. The question is whether the author wants the book to be copyright protected or not? Who is going to argue that the book is still in manuscript form when they have a printed copy of the book? The question you are raising is essentially when does a manuscript become published for the purposes of beginning the shorter time periods allowed published works? One of the main problems with copyright law is that every case has to be decided individually by a Federal Court action. The more facts that you string out, the more likely this would be a more difficult case to decide. Your conclusions at the end presuppose that someone is either trying to assert a copyright or assert that any copyright has expired. Who is going to make those arguments and why? Almost all copyright cases involve huge sums of money and/or interests that can be monetized. My question is why anyone who has written a family history would want to worry about copyright at all? I have a couple of boxes of books in my basement that I cannot give away to family members because they do not want them and they are not interested in them. Again, from your hypotheticals, who is going to claim the copyright interest in the book and who has such a great interest in the book that they will spend thousands of dollars to defend a copyright to a family history that no one wants? If a book is printed, hardbound, and shows a publication date, It would be monumentally difficult to maintain that it hadn't been published. These arguments arise in the context of diaries, handwritten memoirs, and similar documents that are discovered after someone dies. There are a few cases involving Civil War diaries and such but there are not enough examples of these claims to establish a general rule of law. The real rule here is that a manuscript does not have to be published to be subject to copyright. Quoting from the Copyright Office: Can I register a diary I found in my grandmother's attic?
      You can register copyright in the diary within a certain duration only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author's heirs or assignees, not of the one who only owns or possesses the physical work itself.

      By the way, if she printed the book in 1922 who is now alive who can assert the copyright claim? Who can prove that the book was unpublished when physical copies of the book are the only evidence of the issue of publication? The more important question is who is trying to maintain that the book is still under copyright protection and why? If someone is trying to republish the book, who is trying to stop the republication? If the book has no publication date and there is no evidence about when it was printed, who cares whether it is copyright protected or not. All of these practical questions far outweigh theoretical publication issues. Maybe you should start applying to law schools and come back in three to five years and tell me what you think then.