Throwing More Light on False Copyright Claims

by James F. Ramaley, Ph.D.

In "Examining False Copyright Claims" (RootsWeb Review 30 Nov. 2005), I urged the genealogical community to avoid the practice of placing copyright notices on works that are not eligible for copyright. See:

Reader comments and questions to that article fell into three categories:

  1. Exactly what is copyrightable in genealogy?
  2. How can a person protect against further copying of his or her work (copyrightable or not)? and
  3. What is the harm in inserting a copyright notice even if the work is not copyrightable?

Before commenting on these points, let me call attention to one of the most readable (and thin! -- just 58 pages) books that covers general U.S. copyright: It's "101 Questions about Copyright Law," by Andrew Alpern, (Dover Publishing, 1999). Although I got my copy at the Library of Congress bookstore, the paperback is widely available at a price of less than $5. Alpern is an architect and architectural historian who is also a practicing attorney in New York, specializing in intellectual property law. His book should be required reading for anyone who wishes to, or needs to, understand copyright.

Now to No. 1 point. It is important to restate the primary reason for copyright -- to spread knowledge. Copyright does this by protecting for an author the financial benefits that might be gained by copying his or her creative works for a limited period. The absolutely key criteria for any work to be copyrightable is that it must be ORIGINAL and CREATIVE.

Original means original with the author -- don't expect to copyright something that you have discovered and copied or heard from another party. Also, facts -- such as birth, marriage, or death dates -- are never original and are usually given as prime examples of non-copyrightable material.

Creative is more than a flowery description of facts. We recognize creativity in a new play or a new song but when we try to make our family histories more interesting by simply changing paragraph structure or by using various phrasing for "he died in 1839" we are not being creative -- in the legal sense.

In genealogy, most citations are to works that are in the public domain such as the factual material in an obituary or in a church registry. Such data is not subject to copyright and so only the CREATIVE text that is original with the author is copyrightable.

However, if you are preparing the "Definitive History of My Perfect Family in America", the entire book -- as a whole -- is copyrightable even if many of the citations and facts therein aren't. This means that you can't prevent people from copying any of the noncopyrightable material therein, but they can't (legally) copy or reprint your ENTIRE work without your explicit permission.

Since most amateur genealogists are usually interested in just getting the facts of their ancestry correct and sharing this information with other people researching their direct and/or connecting lines, this may be enough on the first point. For more on what is copyrightable, please see Alpern's book.

Point No. 2. Many who contacted me did so because they had had an unpleasant experience in which large sections of some genealogical work of theirs had been copied off their website, etc. and incorporated into someone else's genealogy -- without even the courtesy of an acknowledgement. They felt that the hard work they had done in assembling their history was unfairly taken and used by an uncaring cousin.

This is all too common. We amateur genealogists are driven neither by a profit motive nor did we start our hobby with a goal of becoming famous as a family historian. Generally we began our study to learn more about our ancestors' lives and to share this knowledge with others. But we are only human and become upset when our work and efforts are slighted. This upset is probably magnified in genealogy because our study of ancestors leads us to appreciate the legacy we have been given. We are quite willing to share with a newly found cousin, but if that person re-copies the facts we worked so hard to discover and fails to mention our help, we become irritated.

Ironically, a cause of the copier's failure to cite sources may stem from an implied threat of suing for "copyright infringement." Perhaps we would get better results if we replace the (usually false) copyright notice with something like: "You may use all data on this website but remember that genealogical work is always subject to revision. If you copy some of my material, your readers will appreciate a citation to my site so that they may see if my data has been updated." (And, of course, the "golden rule" of source citation requires that you cite your sources as you would have others cite you.)

Assembling the facts that go into a family history is not usually a creative act in the view of copyright law. It does represent many hours of hard work and expense in visiting courthouses, copying census records, or analyzing conflicting "facts." This effort should be appreciated and acknowledged, but hard work and money spent do not necessary result in something that becomes protectable intellectual property. If you rely on copyright to correct bad manners (or ignorance about citations) you are certain to be disappointed.

I was also told of instances where a local genealogical or historical society assembled public domain material (cemetery readings in one case), adding nothing original but a foreword, and placed the copyright symbol on the first page to "protect" it. This is risky as a fund-raiser because someone could come along and put up the same (public domain) information for free. If a society wishes to provide such information as a service to members and attaches a reasonable fee that recovers the cost of the materials, plus a small bonus for the society's treasury, fine. But don't set an exorbitant price hoping to get rich with such an item -- and don't make false copyright claims about it.

It is possible that you could try to prevent further copying of your genealogy by inserting a "terms of use" notice for your work where you prohibit any user from redistributing the material to others. But this seems counter to the spirit of amateur genealogy. If you really don't want others to share in your discoveries, perhaps you should reconsider why you are even publishing anything.

The bottom line is that if you have published or deposited in a public library some family history (or shared that information or GEDCOMs with anyone), it will certainly be copied and you will not be able to prevent that by a copyright claim. Since most genealogists are interested in having their family notes found and used by others, depositing and sharing genealogical work is good. But don't expect to be able to control further use or misuse of your work.

Point No. 3. Question 111 (p. 56) of Alpern's book discusses the "intersection of copyright law and criminal law." I quote from his answer (with his permission):

"At the lesser level of a violation, the copyright law provides that falsely representing a material fact in a copyright application or other written statement filed in connection with an application carries a fine of up $2,500. A maximum fine in the same amount may be imposed on one who fraudulently removes or alters a copyright notice on a copyrighted work, or who fraudulently places a copyright notice on an item, or who fraudulently distributes -- or imports with intent to distribute -- an item with a copyright notice on it that the person knows to be false."

In other words, falsely asserting a copyright is also a violation of the law.

I want to stress the value of registering material that you believe to be copyrightable. Since registration with the copyright office is no longer required in order to obtain some of the benefits of copyright, many people just put a copyright symbol on their work and forget about it. However the law specifically requires that a copyright must be registered before an infringement suit can even be initiated. Moreover, attorney fees and other damages can be recovered in an infringement suit only if the alleged infringement occurred AFTER the work has been registered -- a very valuable incentive for registration.

If you have not registered your copyright and send a "cease and desist" letter to an alleged infringer, you are likely to get a letter back that says, in effect, "I will be glad to stop the alleged infringement if you will please provide proof of ownership and of registration."

Registration costs only $30 and instructions are available at

James F. Ramaley, Ph.D.

[Rootsweb Editor's Note: Prevent misunderstandings by citing your sources properly and acknowledge specifically the work of others (not a "thanks to everyone in the world" note). If you find information about your elusive JOHNSON family at WorldConnect, for example, posted by Mary SMITH, remember that her sources are NOT your sources. Don't claim to have found the information in the Johnson Family Bible (that she cites) if you haven't seen it. See "Creating Worthwhile Genealogies for our Families and Descendants" . Doing genealogy "just for fun"? Why should you go to the bother of recording and citing your sources of information? Well, would you create a shoddily made quilt or dollhouse for your granddaughter? Of course not. Then why would you create a scruffy family tree for her?]

(Previously published in RootsWeb Review: 29 March 2006, Vol. 9, No. 13. Reprinted with permission.)

(Posting date 11 April 2006)

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