Photographs and Copyright Law

Guest Post by – D.D. Thompson of Turner, Oregon

In this era of the Internet and social media, access to information is easier than ever. Millions of written works and photographs are now available at your fingerprints. This has led to a (mistaken) belief that if something is available, it’s free for the viewer to take and use for whatever reason they desire.

Do you remember when you were in school and when writing a report, you were required to cite your sources? There were two reasons for that. First, it’s just the right thing to do. The author spent their own time and money researching information and writing an article or book which provided you with a valuable resource and it’s only fair that you give the contributor credit. The second reason is that as the “creator,” under United State copyright law, that person is the sole arbiter of what can and cannot be done with their original works.

These principles are also true for photographic works. A photograph, just like a book or article, is considered an “original work of authorship”, within a legal category known as “pictorial, graphic, and sculptural works.” Under U.S. law, the photographer owns the copyright for their work. This means that the photographer, and nobody else, has the right to decide what they will or will not allow to be done with their photograph.

The law does not require a photographer to “do anything” to secure their copyright – the copyright belongs to the photographer simply because they took the photograph. Just because you can easily “save/copy” a photograph does not mean you are allowed to reproduce the photograph without the permission of the copyright owner, just like you cannot plagiarize written works. And just because someone else may own the object being photographed, the photographer owns the photo. So for example, Donald Trump owns the “Trump Tower” but if I take a photo of it, I own the photo. In the same way, I purchased my Grandfather’s grave maker, but if you take a photo of that headstone, you own the photo.

In the world of genealogy and graveyard photography, some photographers share photos but expressly prohibit anyone to copy and re-post those photos. By law, that is the photographer’s right to make that determination. The vast majority of photographers share their works because they know that this will help relatives and other researchers. But for the sake of common courtesy, and the law, it is important that you attempt to determine what purposes the author allows his or her works to be used and, at a minimum, to provide attribution to the photographer.

One way photographers can let you know what is allowable is by licensing their works through a non-profit licensing organization called Creative Commons. The organization, at no cost, provides several different types of licenses that specify what the copyright owner allows for their original works. I have taken more than 17,000 graveyard photographs which I published on a popular website. I am happy to allow anyone the use of any of my headstone photographs with only one condition: that I receive “attribution” (credit) as the photographer. So I have licensed my photographs through Creative Commons “Attribution-ShareAlike 3.0” license. Details can be found here: http://creativecommons.org/licenses/by-sa/3.0/us/, but what it means is that anyone can do anything with the photos as long as (and only if) they give me credit “Courtesy of D.D. Thompson.”

So as you pursue genealogy research, it is important that you pay attention to copyright law and common courtesy. If you find a photograph that you think would look great attached to your online family tree, first ask the photographer if you may use that photo. If you are unable to make contact with the photographer and it is unclear whether you have permission to use the photo, include a hyperlink/URL to the photo rather than copying the actual photo. These steps will allow you to show respect to the author/copyright holder and allow you to be compliant with the law.

For additional information, you can review U.S. Copyright law here: http://copyright.gov/title17/circ92.pdf. More information about licensing your works through Creative Commons can be found here:  http://creativecommons.org/

D.D. Thompson has contributed over 10,000 memorials and over 17,000 photographs to Find A Grave.

Fair Use?

Stanford University Libraries’ Fairly Used Blog published a post on  22 December 2014 entitled

How much of a photo do you need to alter to avoid copyright infringement? Hint: Cheshire Cat

It poses a interesting case.  You can read the summary of the  US  7th Circuit court affirmation of a lower court decision that the image at the left here was fair  use of the photograph on Justia.com. (1)

Fair Use is a complicated issue and every case is judged on it’s own merit.  Every time I think I have a good handle on the issue another question arises that doesn’t fit or another decision is made that seems counter to previous decisions.  The best we can do is to follow the rules as best we can and keep ourselves informed on current issues and decisions.

The following links offer some interesting discussions on the issue of Fair Use.

• You Tube has a page dedicated to Fair Use, where they give examples of uses of copyright protected materials for criticism, news reporting and remix.
• The Digital Media Law website has helpful Fair Use page with a discussion of use of email and private letters.
• The Center for Media and Social Impact in conjunction with The Association of Research Libraries and
  The Program on information Justice and Intellectual Property has developed The Code of Best Practices in Fair Use for Academic and Research Libraries which seems pertinent to researchers and preservationist of all ilk, including genealogists.\
• University of Texas has a Copyright Crash Course The section on Building on Others’ Creative Expression discusses the limits of Fair Use.
• Daily Blog Tips: Copyright Law: 12 Dos and Don’ts offers some great tips on what can and can’t be used not only in Blogs but in any publications.

(1) Justia.com offers daily summaries of US Supreme Court, Appellate Court, and State Supreme Court decisions.

Genealogy in Time – Let’s Talk About Plagiarism!

I often think there is only so much you can write about Copyright and Genealogy, but every so often an issue arises that makes me reconsider.  Tonight I received my copy of Genealogy in Time Magazine, and the major topic was not copyright….but beyond… Plagiarism.   It is often hard to decide when we are just sharing facts that others reported first, and we might err in trying to pass on what seems to be important information……….BUT…….. it shouldn’t be hard to know that directly copying someone else’s words and neglecting to put them in quotes or in any other way attribute them to the source is a step beyond.

I highly recommend you check out  Let’s Talk About Plagiarism  on Genealogy in Time and let the conversation begin.  Every genealogist should think about the ethics of how they share what they find.

PS….while you are on the Genealogy in Time website be sure to look at the links to new records on the web.  I find at least one new resource in every newsletter I receive.