Genealogy, Law, And Common Sense

There's been a lot of commentary in the geneablogsphere about some of the business moves made lately by The Generations Network, owner of Ancestry.com and other properties. I've expressed an opinion about TGN's demands to shut down certain websites and that bloggers remove images from their sites. Since I am a law professor (and now that finals are nearly over here at Pacific McGeorge), I thought I might share a little bit of the basic law on some of these matters. (Caveats: 1. This is the kindergarten course--it's not going to make you a lawyer! So don't try this at home. 2. The information is for educational purposes only and should not be considered legal advice. If you have an actual problem, consult the appropriate professional).


Copyright--I Report, You Decide

The issue of copyright comes up frequently in genealogy and it's one of the issues involved in TGN's latest moves. They've demanded that certain bloggers and others remove snippets of record images taken from Ancestry.com, raising questions of law and good business practices. What's the law about this?

As Dick Eastman has written recently, facts cannot be the subject of copyright protection. Nor may works of the United States Government be protected by copyright. That would seem to defeat any claim to copyright that TGN claims in its Ancestry.com census images. However, copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. So the Ancestry.com images of the census records are protected by copyright just as is your photograph of Aunt Minnie's headstone. (In the advanced course, we can talk about the legal rights of the headstone carver!).

A significant limitation on the rights of the copyright holder is the doctrine of “fair use.” This doctrine has developed through a substantial number of court decisions over the years and now is codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.


Here are some examples of activities that courts have regarded as fair use: quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

You can decide for yourself if any of the now-banned uses of Ancestry census images were "fair use." But understand that the distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The safest course is always to get permission from the copyright owner before using copyrighted material. If you have any doubt about fair use, consult an attorney.

Having said all of that ( with the considerable help of the United States Copyright Office, whose work is not subject to copyright), the business decisions that a copyright holder makes are quite apart from the law. A copyright owner may license the use of its intellectual property for a fee or for free or subject to certain conditions. Or the copyright holder may choose never to allow any use of its property and to fight vigorously any one who attempts, even ever so innocently to make fair use of the protected material. You can decide, given the uses involved, the audience, the users, the relevant marketplace and other factors, whether it makes good sense to take the actions TGN has taken in the manner they have taken them.

It seems to me, though, that there's a rule that says, Don't p*** off your customers. That doesn't mean you have to give away the store; just treat your customers in a way that makes them feel valued. There are ways to do this even with intellectual property issues.