When doing genealogical research, it is not uncommon to come across information that is protected under copyright law. While government documents and very old information that is no longer covered by copyright make up a large part of genealogical research, there is much that we have access to that may be protected by copyright law. For example, photographs are protected by copyright law, especially those taken by need organizations it in a studio by professional photographer.
In most cases, copyrighted works used in our genealogical research are protected under civil law, so unless we are making money from the copies, we are unlikely to be prosecuted by law enforcement but might be subject to civil action from the copyright holder. In other words you might get sued. More likely, you would first receive a request to stop using the copyrighted work. Anyone who holds the copyright on a work is allowed to sue to recover damages by the unauthorized use of the copyrighted work.
The government copyright office has guidelines to help you decide if your particular use case is allowed under the fair use provisions of the copyright law.
- You need to consider the purpose and the character of the use, is it commercial or nonprofit?
- Is the work itself a more creative or imaginative work or is it a more factual item?
- Are you using a large portion of the hole of the copyrighted work?
- And are you affecting the potential market or value of the copyrighted work?
The way that I decide how to weigh these issues is to imagine myself sitting on a jury in a civil trial where I am trying to decide if the use of the copyrighted work truly cause damage to the person who holds the copyright to the materials that I have used.
Have I caused harm?
There is also another level of consideration that beyond just legal to also include moral, ethical and reputational issues. In research, the source of all information should be carefully documented and made available to everyone. You should not misrepresent the copied information. I also think about the embarrassment factor, how people would view my actions in regard to this information.
So if I am trying to document someone’s life and the only photo that I have is a copyrighted photo taken by a news organization or a professional photographer, and I am not directly making money or denying the copyright holder the ability to make money from that work, then I feel it is ethical and legitimate to use that work under the fair use provision of copyright law in most cases. If I am asked to remove a copyrighted item, I will have a respectful dialogue with the copyright holder in order to understand and address their concerns.
Not a black and white issue
It is not always clear. For example, if a company takes a document from the public domain, such as birth or marriage or death records, and digitized and otherwise processes those documents to make them easily searchable and available to their subscribers, would my use of that information outside the original website’s paywall cause damage to that business? They deserve a fair profit on the work they have done to make those documents available. The question comes in as to the legitimacy of copying those materials elsewhere.
In the end…
… try to put yourself in the place of the person who holds the copyright.
- How would you feel if someone used your work this way?
- Are you honoring the subject of that work?
- Are you adding historical significance to that by using that work?
- Are you documenting what you were doing?
- Would you be embarrassed if the whole story of what you did was known?
- And if you were sitting on the jury would you decide is this use was fair?
I also consider most genealogical information and/or images to belong to our ancestors – a photo of them is more theirs than the photographers, in my view.
I will continue to use all sources of information available to me, paying for the services of some websites, and making the product of all of my work for anyone to use under Creative Commons license.
 Main banner image is by Saad Akhtar from https://www.flickr.com/photos/saad/5350994151/in/dateposted/ used under CC BY 2.0
 British Library digitized image from page 283 of “Pariserliv i Firserne … Med talrige Illustrationer”, 1885, https://www.flickr.com/photos/britishlibrary/11307008746