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.


Defamation

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.

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.

Avoid Defamation

Defamation in genealogical publishing is not a tremendous problem for several reasons. First, the law does not recognize defamation of dead people. This fact is combined with the practice of most genealogists not publish information about living people without permission of those people. The third fact is that things thought defamatory in the past are, for cultural reasons, no longer regarded as defamatory. For example, it was once held by by courts in Mississippi, Virginia, Alabama, and Louisiana that to suggest that "a white man is a Negro" would be defamatory. It is unlikely that any court would so rule today.

Another reason that defamation is not a big problem in genealogy is that "public figures" and "public officials" are held to a higher standard to prove defamation. A "public figure" or "public official" must prove that the defamatory statement was made with "actual malice." "Actual malice" means to know that the statement is false or to publish the statement with a reckless disregard for the truth or falsity of the matter. As a result, a"public figure" or "public official" will rarely bring a defamation suit.

The situations in which defamation may arise in genealogy are rather limited. One example is where one writes about a family in a way that reasonably could be understood to refer to still living members of the family. Suppose one writes, "All those Sanfords in Texas are crooks." Present members of the Sanford family living in Texas probably have a good case! Here are some ways to avoid defamation:

1. Write only about dead people, unless you have explicit permission to write about living people.
2. Stick to documentable facts; don't speculate about things that may harm someone's reputation.
3. Document; document; document!
4. Avoid repeating gossip that can't be confirmed.
5. If you're not comfortable with something you've written, get a secound, hopefully neutral opinion, before it is published.

Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and I am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.

Another Law Lesson: The Basics of Defamation

A few years ago, I thought about writing on the topic of defamation and invasion of privacy as they relate to genealogy, but I ultimately decided that there just wasn't enough material there to make it worth the time. Then, somewhat more recently, I wrote something that drew a comment that seemed a bit hostile. But with the sensory limitations of the written form, I couldn't tell if the commenter was merely seeking clarification or was challenging my premises. It then occurred to me that are people in the world who might be offended by what they perceived I had written. I got to to thinking about defamation and invasion of privacy again.

As a general rule, dead people cannot be defamed, nor can their privacy be invaded. That's one reason why I initially dismissed the idea about writing on these topics in genealogy. But then I began thinking about defaming the living by reference to the dead or invading the privacy of the living to get to the dead. I decided these matters did merit some examination.

Defamation is the "publication" of a communication that tends to harm the reputation of another by lowering him in the estimation of the community or to deter third persons from associating or dealing with him. At one time in legal history, defamation was of two types: slander, which was an oral communication of defamatory matter and libel, which was the printed publication of defamatory matter. The advent of broadcast media and the sensible evolution of the law contributed to the decline in the usages of the distinction. Now we generally refer simply to defamation.

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."

It's essential for defamation to exist that the statement be false. Or, as popularly stated, "truth is a defense." Thus, if Person A says that Person B is a "crook," and Person B indeed has been jailed for theft or corruption, there is no false statement and thus no defamation.

There must be "publication" of a false statement for defamation to exist. "Publication" means a communication of the statement in some form to someone other than the subject of the statement. Thus, if Person A tells Person B, "You're a crook," there is no defamation if nobody except Person B heard the statement. Generally, "self-publication" will not suffice. Thus, if Person B tells Person C, "Person A called me a crook," generally there is no defamation. There are some circumstances, however, in which self-publication will support a suit for defamation. For example, Boss fires Worker, telling Worker (falsely), "You stole from me." Worker then seeks another job and is asked by Recruiter, "Why did you leave your last job?" Worker says, "I was accused of embezzlement." Although Worker has herself published the statement, courts have held that she may sue Boss for defamation.

Generally, a person must suffer some damages to prevail in a suit for defamation. Loss of reputation alone is not enough to make the defamer liable unless it is reflected in some kind of economic or pecuniary loss. However, in the Ancient Olde Days, the rule was established that certain types of slander no actual harm was required to be proven. These were (1) words that accuse a person of a crime; (2) words that imputed to a person a "loathsome disease;" (3) statements that tend to cast aspersions on one in his or her business, trade, profession, or office; and (4) as to women particularly, an allegation of "unchastity." Today, an imputation of sexual immorality as to either sex is often considered defamatory per se, as are allegations of dishonesty or untruthfulness.

One other thing that's important: the allegedly defamatory statement must be a statement of alleged fact, not opinion.

So now, what has all this have to do with genealogy? As I said, dead people cannot be defamed. But a defamatory statement about a deceased person may reflect upon someone who is still living and therefore may be actionable by such a person. It may be that in writing a family history or publishing facts about someone's ancestors, a living person is identified in some derogatory manner. However, it's probably not sufficient for liability to merely make a family connection between the defamed ancestor and a living person. For example, if you allege that my deceased grandfather was a thief, that's likely not actionable by me since that statement says nothing about me. On the other hand, if you say that my royal grandfather held his title fraudulently and I have inherited that title, the innuendo might well reflect on me.

Coming Thursday: Avoiding Defamation in Genealogy
Coming Friday: Invasion of Privacy

Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.