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

Friday, March 19, 2021

Genealogy: Ethics, Ownership, Work Product, Plagiarism, and Privacy, Part Three: Ownership and Work Product


Ownership is divided into two distinct categories: real estate and personal property. The laws governing ownership go back into antiquity. In Western European derived cultures and governmental organizations, such as the predominant one in the United States of America, very little of our vast legal system dealing with ownership is original. The U.S. land and property law primarily comes from English Common Law with vestiges going back to the Romans and Anglo-Saxons. 

I might note at this point that if you have a copyright, it is considered to be owned as personal property. I have intentionally not included copyright law in my list in the title of this series, mainly, because copyright is just an ad hoc overlay of common law ownership. This is mainly the reason why I do not think that copyright deserves consideration as a separate "issue." Copyright ownership interests are merely a complex construct based originally on Constitutional law. 

Some genealogists, without a shred of logical or legal support, are fixated on assumptions of ownership and its distant cousin work product.  As an initial example of our "Western European" derived ideas of ownership,  in the United States, in spite of our historical underpinnings in English law, we think we "own" real estate and our own personal property. I could have called this particular post, "The Myth of Ownership" but I thought that it would take too long to explain. But now that I have begun, I am persuaded that using that title might have been a good idea. Whatever attitude you have about ownership, the entire concept of ownership can be reduced to a series of rules or statutes granting individuals and other entities rights to possession, use, and control, and those rights can be modified, ignored, eliminated, or suspended depending on the greater interests of societies and governments. 

Let me start with a hypothetical situation. Let's suppose that for the first time in his life, John Doe wants to buy a home somewhere in the United States. He spends some time looking at houses and hires a real estate agent to represent him in his efforts. He finds a home he likes and puts 20% cash down on the sale and finances the rest with a conventional mortgage. He is now a "new homeowner." Except he doesn't "own" the home in any realistically defined way other than be looking at his particular rights of possession and use. To put it another way, he has merely acquired a certain set of legally defined interests that we call ownership. Let's further suppose that he soon finds out that he has to pay a real estate tax bill every year. He might be surprised that the amount of this bill increases regularly. He also finds out that if he fails to pay for his utilities, the power company can file or levy a lien against his property. He also discovers that his credit card company has also levied a lien recorded with the state office where he lives. Incredibly, he is given notice that the state is building a new freeway through the area where he "owns" his house and they want him to move immediately. They offer to pay him half of what he thinks his home is worth. 

I could go on and on with the hypothetical but the real issue here is that real estate "ownership" involves an ongoing series of monetary obligations that all have the potential of canceling the individual's idea of ownership. By the way, this same hypothetical example applies to your personal property also. If you have ever had to go through a bankruptcy proceeding, you will recognize that your personal property may also be confiscated through court proceedings. 

Now how does all this apply to genealogy? The simple rule is that you do not own history and more specifically you do not own your ancestors. You do not have any rights to possession, use, or control over historical sources or over information acquired about your ancestors. Why then do some genealogists (people) claim a work product ownership? First of all in answer to this question we need to know the legal definition of "work product. Here is the definition.

Legal Definition of work product

: the set of materials (as notes), mental impressions, conclusions, opinions, or legal theories developed by or for an attorney in anticipation of litigation or for trial. See Mirriam Webster Legal.

What about work product for non-attorneys?

The party claiming the work product privilege must prove that the materials are: 1. Documents and tangible things; 2. ... The most difficult matter to prove for non-attorney work product is that it was prepared in anticipation of litigation.

How many of you are doing your ancestor's histories are doing your research in anticipation of litigation?

You do not obtain any arguable ownership interest for your research. 

What about copyright? Determining what is and what is not covered by the United States' copyright laws or those of any other country is a complex and extremely difficult. It is easy to claim a copyright interest and hard to prove. 

Time for another hypothetical. Jane Doe is a genealogist. She spends years doing research and finally publishes her family's history. Is that book subject to a copyright claim? There are obviously temporal limitations. Presently, published works before 1926 are in the public domain. If the work was published this year, 2021, then this would be the term of the copyright. 

Copyright protection generally lasts for 70 years after the death of the author. If the work was a "work for hire", then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. See Copyright law of the United States.

But with a family history book, the issue of copyright protection is much more complicated. You cannot own or claim a copyright, facts so most of the information in a family history book is not protected. How do you know if what is written in Jane Doe's book is copyright protected? I wouldn't want the job of trying to sort out the answer to that question at all.  The real question is why should Jane Doe even try to claim copyright protection? Does she really expect to make money publishing her family history? 

More next time.

For the previous posts see the following.

Part One:

Part Two:

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