Friday, October 26, 2007

Genealogy Law Quiz Answers

The fall semester will be over soon at Pacific McGeorge School of Law, so I thought I'd practice for the grading season with the quiz that appeared here a couple of days ago. BTW, every one who tried it got a passing grade. Here's the "model answer":

Copyright Infringement

The first claim against Delia is Al and Bert's action for copyright infringement. The first issue here is whether Al or Bert or both of them own the copyright in the diary in order to permit them to sue for copyright infringement. The diary was written by their mother. From what we can tell, the diary was never published before Delia got her hands on it. Likewise, from what we know, there is no evidence that a copyright was ever registered for this work.

The Copyright Act provides that copyright protection subsists in original works of authorship fixed in any tangible medium of expression. The copyright in a work of authorship immediately becomes the property of the author. It is not necessary to publish the work or register the copyright.

Thus, Delia's grandmother owned t he copyright when she wrote the diary. Copyrights may be transferred or sold. We are not told whether Delia's grandmother transferred the copyright during her lifetime. Assuming, therefore, that she did not transfer it during her lifetime, the copyright could pass as part of her decedent's estate. That is what most likely happened here.

We are not told whether Grandma had any heirs other than Al and Bert, or whether she had a will. In any event, it is reasonable to assume that Al and Bert were her heirs and that they became owners of the copyright at her death.

We do not know when the diary was "created." If it was created on or after January 1, 1978, then the copyright protection lasts for 70 years after the death of the author. Certain works copyrighted before January 1, 1978 may have copyright protection for as long as 120 years depending on the circumstances of their registration or renewal. We therefore may assume that Grandmother's copyright is still "good" and owned by Al and Bert.

The fact that Delia had physical possession of the diary does not affect the ownership of the copyright. (Query whether when Al said to Delia, "Help yourself to anything in [the trunk]," not being aware of the diary, he intended to make a gift of any of his property in the trunk, including the copyright to the diary. Answer: this is probably ineffective to transfer the intangible property such as the copyright).

The next issue is whether Delia infringed the copyright to the diary when she published a portion of it on her blog. Copyright infringement occurs when a copyrighted work is published without t he permission of the owner. However, the doctrine of "fair use" is a limitation on the rights of the copyright owner. Section 107 of the copyright law sets forth 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.

In Delia's case the purpose and character of the use was non-commercial. A court presumably could consider that a purpose of her use was vengeance and that she acted in anger toward her relatives, which would tend not to favor "fair use."

The nature of the copyrighted work in Delia's case likely favors a finding of "fair use." The work is her grandmother's diary, given to her by her uncle, who didn't even know he had it.

Another factor tending to favor "fair use" in this case is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Delia used but one paragraph of a diary that had been kept "for many years."

Finally, with respect to the effect of the use upon the potential market for or value of the copyrighted work, it is unlikely that Delia's use of the one paragraph damaged in any significant way. We have no reason to believe that there exists very much of a market for Grandma's diary or that there is any significant value to be had for Grandma's diary from anyone except the parties here themselves.

As a result of the foregoing analysis, "fair use" is likely a strong defense for Delia.


To create liability for defamation, there must be (1) a false and defamatory statement concerning another person; (2) an "unprivileged" publication of that statement to a third party; and (3) negligence or some greater fault on the part of the person making the statement. The wronged party must suffer some damages or in some cases, need not suffer particular damages where the statement is "defamatory per se."

Al's Claim of Defamation

Al must show that Delia published a false and defamatory statement about him and that the publication was unprivileged. The statement that "My sons have been nothing but woe to me," could be deemed defamatory in that a statement by a mother that her sons have been "woeful" tends to harm the reputation of the sons by lowering them in the estimation of the community. But this is probably not defamatory per se, so Al must show some special damages from publication of the statement. For instance, Al might show that his business was damaged because people did not want to deal with someone who was not nice to his mother. Of course, Al must also show the statement is false. We have no information abut that.

The statement that "[Al's] a thief and a liar," is defamatory per se and Al need not show any special damages as a result of publication of that statement. He, however, must show that it is false.

Bert's Claim of Defamatiom

See above for discussion of the statement, "My sons have been nothing but woe to me." Bert will also claim that the statement "Bert is worse" is defamatory in that it makes him out either as a worse "thief and liar" than Al or even worse than "a thief and liar." In either circumstance, the statement is defamatory per se. Of course, he must show that the statement is false.

Bert will also claim that the statement that "Bert's wife, Catherine, is a sl**," defames him in that "sl**" will be clearly understood to mean "slut," and he will be harmed in his reputation by the innuendo that he consciously or unknowingly married a woman of low virtue. This statement is not defamatory per se, as to Bert and he will have to show some special damages. Likewise, he must show that the statement is false.

Catherine's Claim of Defamatiom

Of course, the statement that "Bert's wife, Catherine, is a sl**," if false, is defamatory per se as to Catherine. She need not show any special damages.

Invasion of Privacy

Al's claim

Al may claim invasion of privacy on two grounds: (1) public disclosure of private facts; and (2) publicity placing in him in a false light to the public. Concerning the first, one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, (b) is not of legitimate concern to the public, and (c) is publicized without permission. Al will argue that the details of his relationship with his mother constituted private facts, the disclosure o f which was highly offensive, and not of legitimate concern to the public. We have no reason to believe that Al is a public figure, so generally speaking, his relationship with is mother indeed would be a private matter.

As to Al's second ground for invasion of privacy: Giving publicity to a matter concerning another that places the other before the public in a false light is an invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Al will claim that Delia's disclosure of his mother's sentiments about him placed him in a highly offensive false light. However, Delia may not have had knowledge of the falsity of Grandma's statements. On the other hand, this very lack of knowledge on Delia's part will work against her. By publishing the statements out of anger and making no attempt to discover whether they were true or not, Delia has acted in reckless disregard of the truth or falsity of the statements. On that basis, she may be held liable.

Bert's Claim to Invasion of Privacy

Bert's claim to invasion of privacy on the basis of "false light" is the same as his brother Al's. Bert's claim to invasion of privacy on the basis of public disclosure of private facts is also the same as Al's. But Bert has an additional claim: that the disclosure that Delia is not his biological daughter is an invasion of privacy. This disclosure would be highly offensive to someone wishing to keep it private and is not of legitimate concern to the public. The final element is that the disclosure be made without permission. Since it was Delia who was adopted and Delia who made the disclosure, may she argue successfully that she was entitled to make this disclosure? Answer: Just because Delia was involved in the private facts does not give her a right to disclose it as it affects her parents.

Catherine's Claim to Invasion of Privacy

Catherine's claim to invasion of privacy is both a "false light" claim and a "disclosure of private facts" claim. The false light claim is based on the publication of the statements that "Bert's wife, Catherine is a sl**," and "I know she had an affair." Catherine's "disclosure of private facts" claim is the same as her husband Bert's.


Terry Thornton said...

Craig, Thanks for your generous passing mark on my attempt to play lawyer. About all I accomplished was to prove to myself that I know nothing about the law. I do enjoy watching how you guys think. Your quiz was interesting and fun and a learning experience; your articles on these important topics are most appreciated. Thank you so much.
Terry Thornton
Hill Country of Monroe County, Mississippi

The footnoteMaven said...

Great article Craig!

How I wish you had been one of my law professors.