Copyright, Plagiarism, Fair Use, and the Public Domain

When we refer to the "law" in the United States, we are really speaking about two completely different subjects. There are statutes, regulations, and rules passed by governmental and administrative entities at all levels from municipal governments to the United States House of Representatives and the Senate. There are thousands of these governmental entities and each has its own set of rules, regulations, and statutes.

What many people fail to understand about the "law" in the United States is that we follow British Common Law. That means that the rulings of the courts of record also become the "law of the land." Of course, laws are only laws until the entity that created the law decides to change it. The laws you are subject to depend on where you happen to be located. For example, if you are driving across the country, every time the speed limit changes, you are likely subject to a different set of laws. However, there are some national laws that apply to everyone in the country. One of these is the law of copyright. 

Except, there is one big issue with copyright law. There are statutes but there is also a large number (more than you can imagine) of court rulings so predicting what will happen in any copyright lawsuit is very difficult. All copyright lawsuits must be filed in the United States District Courts. You cannot file a copyright suit in your local state or county court. For this reason alone, copyright lawsuits are very expensive for both sides. There is a possibility of receiving statutory damages and in some cases attorneys' fees but there is always the possibility that neither side in a copyright lawsuit actually benefits monetarily from the action. 

Copyright law is very complicated and in many instances, it is highly unrealistic. Because of the cost of filing a legal action on a copyright claim, the entities that usually get involved are large business entities. For a long time, I was monitoring all of the Federal Court cases to see if any lawsuits dealt with genealogists or genealogical interests. There were never very many. An easy way to search U.S. case law is to use Google Scholar (https://scholar.google.com/). The latest cases deal with using genealogical DNA for criminal investigation and prosecutions. If you want to read a very long discussion about the use of DNA testing in criminal cases, see Maryland v. King. 

Now, genealogists are mostly researchers but they do make copies of documents and I routinely get questions about possible copyright violations. All I can really answer is that the outcome of any dispute or possible dispute depends on the precise facts of every case. For many years, Cornell University has published an extremely helpful summary of the current copyright law and any changes in a concise format that helps everyone understand the restrictions. Here is a link to the chart. 

Cornell University Library, Copyright Information Center

You might also want to see all of the resources on the U.S. Copyright Office website: Copyright.gov. 

Now, what about plagiarism? Plagiarism is the practice of taking someone else's work or ideas and passing them off as one's own. It is not illegal per se but it may violate a copyright. The nature of genealogy invites plagiarism but copying information from a family tree does not constitute plagiarism. A more precise definition would be an act or instance of using or closely imitating the language and thoughts of another author without authorization and the representation of that author's work. See https://www.dictionary.com/browse/plagiarism.

It has long been held that "a pedigree, descendant chart, GEDCOM, or any other standard genealogy form or format that contains nothing but facts is not copyright protected. There is no originality of selection or arrangement and facts can't be copyrighted. Plagiarism and copyright are not the same." See Copyright Fundamentals for Genealogy. Here are some online posts that discuss the issue of plagiarism with links to additional articles.

• Beware of Plagiarism on Genealogy websites
• Plagiarism Raises Its Ugly Head Again within the Genealogy Community
• How Genealogy Plagiarism and Copyright Infringement Makes Everyone a Loser
• How to Share Without Plagiarizing
• Genealogical Plagiarism and the Library Community
• Let's Talk About Plagiarism
• Plagiarism and Copyright for Genealogists

That's probably enough to get you started. Just remember to, at the very least, give credit when credit is due. Cite your sources every time. 

What about Fair Use and the Public Domain?

Fair use is a legal quagmire. Here is the definition of "fair use" from the U.S. Copyright Office article, "More Information on Fair Use."

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.

There are four main factors for determining the application of the fair use doctrine in the law:

• The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for or value of the copyrighted work

Finally, public domain. The document I linked above from Cornell University has the best explanation about what is and what is not in the public domain but you always need to realize that every country of the world that has a copyright law (not all do) has a different definition of public domain. 

The most common question I get asked is whether or not an ancestor's journal or diary is copyright protected. Again, the guidelines are outlined on the Cornell University Library documents. Here is the link again: Cornell University Library, Copyright Information Center. The answer is always the same: it depends.