Wednesday, October 24, 2007

Law and Genealogy--A Quiz

One afternoon, Delia, a family historian, decided to rummage around her uncle Al's attic. She came across a locked trunk that she recognized as having belonged to her grandmother. Delia asked Al if she could see what was in the trunk. Al, knowing of his favorite niece's obsession with genealogy, said, "Sure. Help yourself to anything in it." Al, the older of two brothers, had been his mother's executor, but had not bothered to look into the trunk.

Delia found many of her grandmother's things in the trunk, but what most interested her was a diary her grandmother had kept for many years. Delia took the diary and began to read it.

At one point, Delia's grandmother had written:

My sons have caused me nothing but woe. Al is a thief and a liar. The only reason I named him my executor is that his brother Bert [Delia's father] is worse. Bert's wife, Catherine, is a sl**. I'm sure she had an affair--Delia is not Bert's natural-born daughter.

Delia was devastated by what she read. She had always suspected that Bert was not her real father. Now she thought she knew the truth. [In fact, Bert and Catherine had adopted Delia. Both were faithful to their marriage vows].

Angry that this secret had been kept from her, Delia published this portion of her grandmother's diary on her blog for an edition of the Carnival of Genealogy on "Uncovered Family Secrets."

When Delia's uncle and parents discovered the publication of the diary, they were outraged. Al and Bert are now suing Delia for copyright infringement. Al, Bert, and Catherine are all suing Delia for defamation and invasion of privacy.

Discuss the viability of the claims against Delia.


John said...

According to Cornell University's chart, unpublished works are under copyright for life of the author plus seventy years. Assuming the grandmother died after 1938, it was still under copyright, and I suspect (though don't know for sure) that the executor of the estate has the copyright unless he passes it on -- in writing. A verbal "sure, help yourself" is likely insufficient.

Defamation of character is fuzzier, I think, because I believe 'truth' is a defense, and not having read the post, if the post focused on the diary entry, and didn't state it necessarily as truth, but only as Delia's grandmother's belief, then Delia may be OK there.

IANAL, but I have lived with them, and read a lot.

Terry Thornton said...

Judge Manson,

Please accept my pro se observations in this interesting case. Delia was given the diary by her Uncle Al; the diary was, therefore, hers. Uncle Al didn't even know that it existed when he gave away the contents of his mother's chest. Because Uncle Al was the administrator of the estate and probably had no directions in a will to dispose of the diary specifically, his giving it to Delia was probably within his authority as estate administrator/executor. Delia did not infringe upon his copyright.

In the matter of Bart's copyright to the diary, absence any specific bequeath in a will, Bart's claim that Delia infringed upon his copyright is likewise unfounded.

But, oh, in the matters of defamation and invasion of privacy, Delia may be up the creek! If Big Al is indeed a crook and Delia can show his crooked ways, i.e., prior convictions, pleadings, etc., then Uncle Al wasn't defamed. He is crook; to be called a crook is telling the truth; and for Delia to quote Al's mother making a statement of fact is not an actionable event.

Poor Delia whose honest mistake in assuming that her mother was a sl** and so published can probably be held accountable for rushing out and printing family secrets. So I believe that Bert and Catherine probably have a good case against their adoptive daughter --- but I hope this case can be mediated with a good session of "I'm so sorry" and some hugs and kisses and the entire affair dropped.

But what of the Carnival of Genealogy? It helped spread the word about Delia invasion of privacy? Does the COG have any responsibility in this matter? LOL!

Thanks for a great question. I look forward to your analysis of the case.

Terry Thornton
Hill Country of Monroe County, Mississippi

TheGeneticGenealogist said...

Delia's use of a single paragraph from a diary of "many years" would undoubtedly be fair use.

However, I'm not sure about the defamation and invasion of privacy claims. I'm looking forward to the answer!

Colleen and Izzie said...

Well, without reading the other comments or the follow-up post yet, I'd say that there is an implied copyright, but it belongs to the grandmother who wrote the diary. However, she is dead. I would think then, that the implied copyright would pass to the owner of the diary, which now is Delia, since her uncle told her she was welcome to anything in it.

All that said, I didn't actually look into copyright, so I think I'll just post this as my own thoughts on the subject ;).