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 with published obituaries or taken by organizations in a studio by professional photographer.
Usually not a “crime”
In most cases, copyrighted works are protected under civil law, so unless you are making money from the copies, you are unlikely to be criminally prosecuted, though civil action from the copyright holder is always a possibility. In other words, you might get sued. Usually, 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.
Fair Use
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.
Considerations:
- You need to consider the purpose and the character of the use, is it commercial or nonprofit?
- Is the original work itself a more creative or imaginative work or is it a more factual item?
- Are you using a large portion of the whole 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.
I also consider most genealogical information and/or images to belong to our ancestors – especially studio portraits – a photo of ancestors is more theirs than the photographers, in my view. Photographers should be paid for taking a photo, not for producing copies of those photos. There are other considerations that apply to living subjects and photographers, so more care may need to be taken in these cases.
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 my copying those materials elsewhere. My subscription payment should compensate the company for their service of making the item available. They do not automatically gain ownership of a document just by indexing and serving up that document. I always link back to the original document, which could be seen as promoting their business as much as damaging it.
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?
Consider the larger context of the work and the intentions of the copyright holder.
- Are you honoring the subject of that work?
- Are you adding historical significance by re-using that work?
- Are you documenting your actions and what you gained from that use of the work?
- Would you be embarrassed if the whole story of what you did was known?
- And, most poignantly, if you were sitting on the lawsuit jury would you decide is the use was fair?
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. In other words, if you take my work and represent it as your own, I might call you out on it, though I won’t sue you!
Questions? Need some coaching or advice? Contact me!
Footnotes
[1] Main banner image is by Saad Akhtar from https://www.flickr.com/photos/saad/5350994151/in/dateposted/ used under CC BY 2.0
[2] British Library digitized image from page 283 of “Pariserliv i Firserne … Med talrige Illustrationer”, 1885, https://www.flickr.com/photos/britishlibrary/11307008746