From: "Margie Daniels" <>
Date: Fri Mar 04, 2005  03:37:48 PM US/Mountain
Subject: [ALCOOSA] Copyrights
Coyright is a complex issue.

These links will help

Since genealogical research inevitably involves copying of information,questions involving copyright often crop up. When an answer is given, itmay be less than satisfactory. Sometimes the answer is wrong, sometimesthere is little or no explanation, and sometimes the answer isnít an answer,but a policy statement.  In other instances, the answer is right,but it isnít what the questioner wanted to hear.

While copyright can be very complex and confusing, the parts of copyrightlaw that usually apply to genealogy are really pretty basic.  Thereare a few fundamentals that can help deal with just about any genealogycopyright situation.

Copyright means copy  right. Literally, the term copyright meansthe right to make copies of some product.  By law, the right belongsto its creator.  In copyright law, the product thatís copyrightedis referred to as a ďworkĒ and the creator of the work is its author. From that, we can say:

Making a copy of a work or a portion of a work is itsauthorís right.

In the U.S., the right to make a copy of a protected work is a constitutional,exclusive right of the workís author, except that some limited copyingis allowed by provisions of the copyright law (see fair use).

Is it copyrighted?

If itís created today by the original expression of the author and itcan be viewed or copied, then it is protected under copyright.  Thelaw says:

Copyright protection subsistsÖ in original works of authorshipfixed in any tangible medium of expression, now known or later developed,from which they can be perceived, reproduced, or otherwise communicated,either directly or with the aid of a machine or device.

For works created before today, there are a few basic durationsand conditions for determining copyright status:

 If an original work of authorship was created after 1977, itíscopyrighted and itís going to be for a very long time.  The earliestthat any work created after that will lose its copyright will be about2049 ? --thatís assuming that the author died right after he authored thework. If it was created before 1923, there is no copyright on it any more,so long as it was published. If it wasnít published, it may still be protectedby copyright. Works published before March 1, 1989, without proper copyrightnotice are almost always in the public domain because, under the law thatexisted before that, a proper copyright notice was required for copyrightprotection. Works published from 1923 to 1963 had to be renewed after aninitial copyright term for protection to continue.  The U.S. CopyrightOffice estimates that over 90% of works eligible for renewal were neverrenewed.

For other situations there are many good copyright duration referencesonline (including one on my web site).

Only original expression protected

All thatís protected under copyright is the authorís original expression.The protected material must have been independently created by the authorwith at least some minimal amount of creativity. Anything in a work thatisnít the authorís original expression isnít protected by his copyright.

Facts canít be original expression. No one can claim originality ina fact. At best, a person may discover a fact. If he discovers it and documentsit, he has not created it. He has only reported it. There is no originality.

Census takers, for instance, donít create the data that result fromtheir work. They write down the facts that they discover. Census data,therefore, canít be copyrighted because itís not original.

Since facts canít be original expression, the copyright of any workdoesnít extend to the facts contained within it. This is a very importantfundamental concept in genealogy, since genealogy so very much involvesthe pursuit, discovery, and collection of facts.

While copyright doesnít extend to facts, the facts may be expressedin an original fashion.  When this occurs, the original expressionused to convey
the facts is protected, but the underlying facts are not.

Pre-existing material not protected

Any pre-existing material in a work thatís not the original expressionof the author isnít protected by the authorís copyright. Facts, which existbefore the work is created, canít be protected by copyright, as previouslydiscussed.  Other examples of pre-existing material that might beused in a work include the work of others, public domain material, andU.S. government material.

The copyright status of already existing material doesnít change whenused in a new work.  If an author uses material from the work of someoneelse,
the copyright for the material still belongs to the original author. If something from the public domain is used, its copyright status is thatitís still in the public domain, available for anyone to use.

U.S. government developed material, by law, cannot be copyrighted. However, material created by non-government authors and used by the governmentis
usually covered by the author's copyright.  In either case, though,use in a new work does not change the copyright status for U.S. governmentmaterials.


A compilation is a collection of pre-existing material.  It canbe a
collection of short stories, poems, or other narrative material. In
genealogy, compilations are usually some kind of collection of factsor
factual material.

Many genealogy compilations arenít sufficiently original to be protectedby
copyright.  Since facts canít be copyrighted, to be eligible forcopyright
protection, a factual compilation must have some amount of originalityin
either the selection of the facts, the arrangement of the facts orboth.
And, then, the only part of the compilation thatís protected will bethat
which has originality.


Joe records the names, dates and inscriptions of all of the headstonesin
the Farnham East Cemetery.  He arranges them in three tables. The first is
alphabetical by last name, the second chronological by date of death,and
the third arranged by the relationship of the location of the headstoneto a
large oak tree in the middle of the cemetery.  As well, in thethird, he
only includes the headstones of people who died in even numbered years.

Of the three tables, the first two used all of the names and dates and
arranged them in standard formats, alphabetical and chronological. If ďallĒ
of an available quantity of facts is used, there is no originalityof
selection.  If a standard format is used for the arrangement andordering of
facts, then there is no originality of arrangement.

Only in the third table is the selection and arrangement of the material
original enough to be protected by copyright.  Defining and describingthe
location of a headstone by relationship to something else applies
originality in the arrangement of the facts.  Selecting only thosethat died
in even numbered years is a nonstandard way to select the informationthat
will be included.

However, the copyright protection for the compilation of facts in thethird
table applies only to the selection and the arrangement of the facts. To
copy the selection and arrangement of the facts would be to infringeupon
the right of copy belonging to the author.  However, the factsthat are
included in the compilation arenít protected and may be used by anyone.

Industrious collection and sweat of the brow
Itís natural that someone who works very hard at researching, collecting,
and arranging facts into a compilation would want to protect theirefforts.

And they can.

So long as they donít make it available to others, so long as they donít
publish it.

But thatís the only way that it can be protected. Once itís made available
to others, such a work will have little or no copyright protectionin most

Under copyright, the effort and work put into a project means nothing.
Copyright only protects an authorís ďoriginal expression.Ē

In the past, lower courts have made ďsweat of the browĒ and ďindustrious
collectionĒ rulings, where the work and effort that went into the research,
collecting and arranging counted in the copyright protection of a work.
However, such rulings were invariably overturned by higher courts. The
Supreme Court has reaffirmed and further defined the requirement forthe
authorís original expression in a word being all thatís protected.

Fair use (and some application of what weíve read so far)
The constitutional purpose of copyright is to further the progressof
science and the useful arts, which today is understood to mean scholarly
growth.  Since building upon the advances of others is often necessaryfor
further advancement in most endeavors, this purpose is in apparentdirect
conflict to the rights of authors to control or even prevent the copyingof
their original expression.

The principle of fair use, which allows limited copying without consent,
limits the conflict.  Its limits intentionally ill-defined, fairuse is very
applicable to scholarship and research, important aspects of genealogy.
Four factors are considered:

 Purpose of the use, including non-profit educational use

 Nature of the copyrighted work

 Amount of copying

 Effect of the copying on the potential market for, or value of,the
original work


Joe is doing research at the Mid America Library in Independence, Missouri.
He finds  transcripts of four 18th century wills on pages 21,23, and 87 of
a book of deeds and wills from Virginia that is copyrighted 1979. He makes
a copy of each of the pages that has the information he needs. He
subsequently posts the text of each of the four wills online.

He also finds a little narrative family history book that was publishedin
1955 on the family of his great, great, great, granduncle.  Hecopies the
entire book and publishes it online.

In a third book, copyrighted in 1934, he finds several pages narratingthe
life of one his wifeís ancestors.  He copies the pages and postssmall,
significant portions from them online.

Which of the three examples was fair use?

Only the third.

In the first one, there is no potential for copyright infringement. While
the book is copyrighted 1979, at best the copyright applies to theselection
and arrangement of the information.  If the book is sequencedthe same as
the original will book or covered time period and all of the documents
available are included, then there is no originality.

A true transcript of a will is no more than a printed copy of an existing
document.  While knowledge and interpretation may be needed tobe able to
read the old handwriting, there is no creative expression involvedÖand
therefore no copyright involved.

In the second example, the book had no copyright date.  It waspublished in
1955 without proper copyright notice.  Therefore, the book isin the public
domain and Joe can do anything with it he wants to.

If, however, the book included a proper copyright notice, it might still
have been under copyright protection if the author had renewed the
copyright.  In that case, copying the book would probably nothave been a
fair use and posting the entire work online definitely would not havebeen.

Joe copied several pages out of a book, in the third example, that were
applicable to his research.  Assuming the book is still undercopyright:

 copying the pages for personal research is a good example of fairuse.

 Using small significant portions of the narrative from them inhis online
web page would also likely be fair use.

 Posting the entire narrative from the pages he copied would notbe fair use
and would be copyright infringement.

 Posting the factual information from the narrative would not befair use
because there is no copyright issue.  Factual information abstractedfrom an
authorís original expression is not protected by copyright.

In conclusion
I could go on and on writing about copyright issues that apply to genealogy.
For example:

 A pedigree, descendant chart, GEDCOM, or any other standard genealogyform
or format that contains nothing but facts is not copyright protected. There
is no originality of selection or arrangement and facts canít be

  Plagiarism and copyright are not the same.  Plagiarism isthe failure to
properly document the source of the information or material that youuse and
is considered by many to be unethical.

  When material you submitted is used by a commercial company intheir
product, you retain the copyright for any of the material that is aproduct
of your original expression.

Copyright infringement and piracy of copyrighted material are commonon the
internet.  The online genealogy community is less exposed to itthan other
interests.  An understanding of some of the concepts associatedwith
copyright can be useful in both online and offline genealogy research.


Additional information, in more depth and detail, may be found on the
authorís web site at

This article is available for free distribution and reprint as a public
service from the author provided:
  (1) it is not edited and these conditions appear on all copies,including
  (2) a link is provided to the
article is used in a web page on another site.

  The author can be contacted at and is interested in hearing howhis
article is used.

This article is also available in pdf format for sharing.

Hope this helps,


-----Original Message-----
From: Linda MacArthur []
Sent: Friday, March 04, 2005 1:25 PM
Subject: RE: [ALCOOSA] Casey - Epperson - Meharg

Is this message a response to the Casey - Epperson - Meharg query thatI
posted earlier?

Thank you,
Linda Sharpe MacArthur

-----Original Message-----
From: []
Sent: Friday, March 04, 2005 2:20 PM
Subject: Re: [ALCOOSA] Casey - Epperson - Meharg


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