During my working career in the magazine publishing field, I became very appreciative of the value conferred to society in general, and to authors in particular, of copyright. As the Internet has developed, individuals have begun to become publishers and authors in increasing numbers, especially in the genealogy field. This is good because it allows the dissemination of information from sometimes obscure sources to the entire world.
But along with this I have noticed a trend toward "false copyright" and I think it deserves some attention.
False copyright is when a person inserts a copyright notice in a published work without having the legal right to do so. An example would be where a person has transcribed an obituary from an old newspaper and then inserted a copyright notice -- I have seen this on some Websites and in fact there is a general notice by the USGenWeb claiming that obituaries published there are copyrighted and cannot be used for "commercial purposes."
The key components of copyright law are (a) originality, (b) time, and (c) ownership. This is not a legal treatise (see http://www.copyright.gov/circs/circ1.html#wccc and http://www.pddoc.com/copyright/genealogy_copyright_fundamentals.htm) for additional information on copyright) and so I can't cover all of the "ifs, ands, and buts." However, at the risk of oversimplification in order to have a greater understanding of how genealogists can work inside the law and to encourage others to do so, here goes:
Originality is usually pretty well understood. An author cannot claim copyright for pure facts (e.g., date of birth, death, etc.) but can claim copyright for the way the facts are presented (e.g., a fully composed literary obituary of several paragraphs is more than likely copyrightable; a "death notice" is likely not copyrightable.) But even if copyrightable, an older article may not have been copyrighted!
The question of time is somewhat less well understood since the 1978 rewriting (written 1976, effective 1978) of the U.S. copyright law (and amended 1998). Basically if a work was published before 1923 it is in the public domain and anyone can use it. For a chart showing when various U.S. works pass into public domain, see: http://www.unc.edu/~unclng/public-d.htm.
The copyright of works created after 1978 is more complicated (generally it is the author's life plus 70 years) but since I am interested in older writings it is safe to move on.
Newspaper obituaries are often staff written or compiled from data (facts) submitted by local funeral homes, but even if the newspaper as a whole was copyrighted, articles and obituaries published before 1923 are certainly in the public domain. Incidentally, works that were published before 1 March 1989 without proper copyright notice are almost always in the public domain because, under the U.S. law that existed before that, a proper copyright notice was required for copyright protection.
Surprisingly, ownership seems to be even less well understood in the genealogical community. Copyright can be claimed only by the original author of a work.
In particular, if I run across a public domain work and transcribe it verbatim, I cannot assert copyright of my transcription since I did not create, but simply copied the original work. If I decide to go through a microfilm copy of an old newspaper (to avoid the question of time, say it is at least 100 years old), transcribe all of the obituaries and then write a book of "Obituaries from the XYZ newspaper from 1880 until 1900." I can assert copyright for my book as a whole but NOT for the individual obituaries. Why? Because I don't own the individual entries--only the collected work. For that matter, the ownerof the microfilm can't claim copyright either and for the same reason.
What this means is that I cannot control the republishing of the individual entries; I would have an action only against someone who takes large extracts of my book for republication, because, in essence, they are not publishing the contents of my book -- they are republishing my book! Even if someone transcribed an obituary from my book and posted it on the Web, I would not have an action against that person because I do not own the rights to the original obituary. Copyright can only be asserted by the author/creator (or his or her legal heirs or assigns) -- not the owner of a copy (e.g., a book or a microfilm).
Why is this important? Amateur genealogists (by definition) do the work they do, not for profit, but for the fun of discovery of ancestors or cousins and to learn about history. There is no commercial motive and, in fact, some amateurs become apprehensive about using information if they see a big Copyright Notice in the information they are using or want to include in the family tree compilation.
Bottom line? I believe that we do a disservice to the genealogical community by asserting false copyright and I would like to see the practice stopped. People would be more willing to publish (online and off) their own family histories and include an obituary from Grandaunt Kate -- if they were not intimidated by a false copyright notice.
Previously published in RootsWeb Review: 30 November 2005, Vol. 8, No. 48