22 September 2004

musing about copyright - me, you, ancestry dot com, the church of lds, and more


In “Family Tree Building and copyright protection” (4 Jul 2003), Carson E. White asks, "How do the genealogy gurus on the Internet steal a copyright from your family tree document?" He answers this way:

When you build your family tree online, you are affixing your compilation onto a computer disk owned by the Internet Company that offers this service usually for free. The return for this great favor is that you place your compilation into the public domain where your family names become the Internet Companies compilation, which they in turn sell for profit, “Buy my software and get 239 million names,” to search.
(Author White says that he is a non-practicing lawyer from Michigan.)

Pop Quiz!

I post family data and transcriptions of family documents on Rootsweb, billed as the nonprofit arm of the, Inc. network of genealogy websites -,,,,, and (They also own and publish Ancestry Magazine, Genealogical Computing Magazine, Ancestry Family Tree software, 50+ books, the 1-2-3 Family Tree package, and innumerable databases on CD-ROM.) Do I hold copyright to my research?

Yes, of course, but...

See the copyright page for, Inc., and closely examine the language in the section in which they discuss their company's role as licensed distributor of user-supplied content, which they define as materials contributed to the public areas of their websites. A fairly exhaustive search of both and never did tell me whether or not, Inc. is ever going to publish information I submit to my own Rootsweb (free) webspace.

Learning more about this stuff:

Who Can Claim Copyright at the US Government's online copyright pages, an excerpt from which follows:

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as:

(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as:
  • a contribution to a collective work
  • a part of a motion picture or other audiovisual work
  • a translation
  • a supplementary work
  • a compilation
  • an instructional text
  • a test
  • answer material for a test
  • an atlas

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire....

The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

Definitions from the Copyright Office:
A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

It's pretty clear that under US copyright law, neither I nor, Inc. owns facts. Each can claim copyright protection for an original arrangement of the facts but not to the facts themselves - even those elusive or juicy biographical facts we may have "discovered" or "unearthed." From the start, I have pretty much proceeded on the assumption that any facts I submit to the web are up for grabs to everyone.

How I present them is not.

One Supreme Court decision - Feist Publications, Inc. v. Rural Telephone Service Company, Inc. March 27, 1991 - effectively lays out the distinctions between facts and factual compilations and goes on to discuss an important check on copyright protection for compiler-authors. This descision makes a good read for genealogists investigating the limits of their copyright protection where companies like, Inc. and others are concerned.

Just a sidenote: The other day, I noticed that tells you more directly and explicitly than the, Inc. sites do about how the Church of LDS is going to gather up the information you submit and sell it to the public. The slight catch to reading this bit of information is that you do have to register and log in to access the information which is found in the Share My Genealogysection of the website. While on the one hand, it could be argued that is obfuscating just as much as, Inc. by stowing the information under so many user layers, the details of their appropriation of contributor material is, on the other hand, readily accessible as a sidebar menu item once a registered user starts to investigate whether or not they want to share their information with the Church. After clicking on the sidebar item, , users see that their records are going to be buried under Granite Mountain for posterity and that it will likely be published - both for fee-based and/or free services - perhaps on CD-ROMS, microfilms, and on an internet locale of the Church's choice. (Read here: "Am I the only one who is a little wary of the Church of LDS' affiliation via their 1880 census index with")

Conclusion, or, so, here's where I think I am:

My claim to copyright in my own genealogical writings and databases (exclusive of "fair use" provisions) includes my selection and coordination of facts, including their layout or arrangement; all subjective expressions or description of the facts, including my original research notes and notations; and all photographs or graphics that originated with me.

so, now, do you know where you are in all this?