Prepared for the California State Genealogical Alliance Workshop at CGS Fair 4/28/2000
© Cath Madden Trindle / Edited by Betty Pex (San Mateo County Genealogical Society)
Published in the CSGA Alliance Newsletter Vol 18, No 7 (July 2000)
Permission is given for this page to be copied in part or in full as long as the above information is printed in full
“Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “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. Copyrightable works include the following categories: Literary Works (computer programs,compilations, periodicals, articles, fiction, drama, written speeches etc.) Pictorial, graphic, and sculptural works.(Maps, photographs, blueprints, clipart, as well as traditional art types )
Copyright protection is available to both published and unpublished works. It gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- Reproduce the copyrighted work
- Prepare derivative works based upon the copyrighted work
- Distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- Perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
- Display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
“It is illegal for anyone to violate any of the rights provided by the Act to the owner of copyright.”
The US Copyright Office, LM 455, Library of Congress, Washington, D.C. 20559-6000
In 1710 Queen Ann of Britain established the groundwork for the copyright laws existent throughout the world today.
For the Genealogical Society copyright is an ongoing concern.
- Original works (newsletter articles, indexes, artwork, etc.) by society contributors are protected by copyright laws and need to be protected from infringement by outside sources
- Society newsletters and Websites need to be careful not to infringe upon the copyright rights of others
- Societies should serve as the model for their members who will run into many copyright issues in their genealogical research
Section 107. Limitations on Exclusive Rights
Sections 107 through 119 of the Copyright Act establish limitations on the rights of the copyright holder. These limitations cover various uses of copyright materials. The one that is most likely to affect Genealogical Societies, not only in newsletters and websites but also in materials put into libraries or passed out at seminars and lectures, is that of FAIR USE. Items that would be taken into consideration in determining fair use would be:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work
Copying an article in full would seldom be considered fair use, but might be in the case of a nonprofit educational purposes. Even if it would fall under the classification of fair use, courtesy should dictate that you contact the copyright holder and ask for permission to use the same. The same should hold true for the placement of a photocopy of a copyrighted article in a library.
Copying one page of a hundred might or might not be considered fair use. Common sense should help you decide, and again what is the harm in contacting the copyright holder for permission?
Copying a sentence (with full bibliographical reference) from a full article or book would nearly always be considered fair use as long as there is no loss to the copyright holder. (This might not hold true if the sentence is the total or near total work.)
You can not copyright titles, short slogans, symbols, principles, concepts, processes, facts, common information e.g. phone books, publication of works in the public domain (however, new indexes and artwork might be copyrightable), lists or tables taken from public (government) documents, freeware or other common sources or works in the public domain.
- So you can use those jazzy titles from another newsletter, but it might be better to create your own.
- You definitely can use information from government documents even if you found it within copyrighted work. Conversely, just because you found it in a government publication, don’t assume there is no copyright by the author.
- You can take an idea from some other newsletter, etc. and create your own version.
Some General Principles of Copyright
You can not copyright an idea, only the expression of it. Therefore there is no problem with doing an article on the same topic as that you found in another publication, but you must express it in your own way.
Copyright protection exists from the time the work becomes fixed: the picture is taken; the article or book is written; the clipart created, etc. The copyright of the work immediately becomes the property of the creator. Only the author or those deriving their rights through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not the employee is presumptively considered the creator. Section 101 of the copyright statute defines a “work made for hire” as:
- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire….
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution. Many magazines, albums etc have a copyright that covers everything within the same work, but that does not strip an artist of the copyright unless the creator has signed away the rights or was under contract to provide the work.
Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
Minors may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors. For information on relevant state laws, consult an attorney.
Acknowledging the source of copyrighted material does not substitute for permission to use it.
How Long is a copyright binding?
Required inclusion of name, year, and word or symbol for copyright (notice of copyright)
Initially good for 28 years, renewable for up to 67 years. (Last 20years were added in 1998)
- Before 1923 – in public domain.
- 1923-1963 – maximum of 95 years, but only if the copyright was renewed.
- 1964-1977 – automatic renewal of copyright – life of author plus 67 years or 2002 whichever is greater.
After Jan 1, 1978
Copyright good for life of the creator plus 70 years, or until 12-31-2047 whichever is later.
- If more than one creator, the one who lives longest dictates life of copyright.
- Multiple works and anonymous works are treated like multiple authors.
Corporate Authorship good for shorter of 95 years from publication or 120 years from creation.
From Jan 1978 to March 1989
Required notice of copyright within five years or work went into the public domain
After March 1989
No notice of copyright required.
Rights of the Copyright Holder
You must have registered the copyright in order to sue. This can be done before or after it is infringed upon.
You can collect damages of actual losses plus $100.000 if you have registered the copyright before it was infringed upon.
Registration , which costs $20, can cover multiple creations, such as a complete newsletter volume, a collection of pictures, etc.
If you have not preregistered the copyright, you are limited to actual losses and all profits from the infringement. You can not collect attorney fees, but you can get an injunction against all further infringement.
All articles are assumed to be copyrighted by the author unless there is a contract to the contrary, or the author is and employee of the publication in which they are published.
Photographs are automatically copyrighted when created – copyright can be held by the photographer or his employer. It is no longer necessary to have the copyright information on the photograph, but it would be wise for photographers to add it.
In the case of a restoration of an out of copyright photograph, the restorer holds a copyright to the restoration, but not to the original photograph.
If a photographer gives you the negative,s it does not automatically give you the copyrigh;, however, it would likely be implied. It is best to have a contract or letter of intent to back up your ownership of the copyright.
Be careful of using photographs of items that would be copyrighted. This could include photographs of art work that is still under copyright and the like.
What is the source of the graphic?
- WWW — Not a safe place to collect art. Even if a person can legally use a piece of clip art on an individual website, it is unlikely that it is legal to pass it on to others, unless the individual owns the copyright, has the owner’s permission to distribute the piece, or the piece is completely out of copyright
- CD Collections of Clip Art — Although the creators of the CDs usually say that they have secured copyrights for all images in the collection, in many instances this has proven to be untrue. Look for a guarantee that the CD creators will accept liability if they do not in fact hold copyright
- It is not legal to use a copyrighted image merely because the copyright information is printed and it is statede that the item should not be changed. As the AOL forum on copyright states, “This is somewhat like driving around town in a stolen convertible with the roof down and screaming at the top of your voice, ‘I stole this car from the <whatever> dealer down on main street… you should not steal it from me!’” If you know an item is copyrighted, you should not distribute it in any form without the permission of the creator
- Art supplied with articles— Be sure that your contributors provide legal artwork with their submissions
- Mere copies of existing records are not original and therefore not covered by copyright protection
- Indexes and abstractions of the same are covered by copyright if they are original
- All new works are covered by copyright law
Software / digital data / websites
- These items fall under the same rules as all creations. If they would be copyrighted on paper,they are copyrighted on media. The society index is covered whether in book or in digital form
- The code used to create software is covered as are the individual items on a disk or CD
- This is a whole new medium, and there are still a lot of unanswered questions as to its use and reuse. Always err on the side of the creator/ copyright holder
Some Case Law on Copyright
On October 28, 1994, the Second Circuit Court of Appeals affirmed the decision of New York’s Southern District Court that Texaco’s copying of journal articles by or for its scientists was an infringement of the copyright owners’ exclusive rights. This case has more relevance to the genealogical library than the newsletter. The decision indicated the mistake by the Texaco researchers was the photocopying of the articles for Archival purposes. In other words it probably fell under the Fair Use provisions to copy and use for immediate research, but when the copied articles were stored for later use it went beyond fair use policy. Of further interest, the court pointed to the Copyright Clearance Center as a method of obtaining legal copies of copyrighted materials. This center has made it possible to easily obtain copyright permissions for educational and research projects. 1. American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2nd Cir. 1994) (hereafter, “Texaco“). 2. American Geophysical Union v. Texaco, Inc., 801 F. Supp 1, 4-5 (N.D.N.Y. 1992).
In Princeton University Press, et.al. v. Michigan Document Services, the U.S. Court of Appeals for the Sixth Circuit concluded that the copying of excerpts from books and other publications by a commercial copy service without the payment of fees to the copyright holders to create coursepacks for university students was not fair use. The excerpts ranged in size from 5% to 30%.. Note this is a commercial copy service that would be making a profit on the copying and also that 30% is a significant portion of a work.
In the Williams case, where a non-profit library copied material for researchers, a divided court decided that even if there were a way to obtain a license to make the copies, fair use principles might make it irrelevant.(8. Williams & Wilkins v. United States, 487 F.2d 1345, 1359 (Ct. Cl. 1973) affirmed by an equally divided court 420 U.S. 376 (1975). Note that this was a matter of copying material that the library legally held for the immediate use of researchers, not inconsistent with the decision above.
For more information on copyright
- De Boot, Alfred, “Ten Most Asked Copyright Questions” by Alfred DeBoot, Sept 1997 Professional Photographers of America Publication. Professional Photographers of America at 800-786-6277 FAX 404-614-6400. David S Mithofer was more than happy to help.
- http://fairuse.stanford.edu Fair Use Website of Stanford University Libraries & Academic Information Resources, in collaboration with the Council on Library Resources and FindLaw Internet Legal Resources – you can find guidelines for obtaining permission to copy a work here
- http://lcweb.loc.gov/copyright/ United States Copyright Office, Library of Congress
- http://www.benedict.com/ THE COPYRIGHT WEBSITE Copyright (c) 1995-1999 Benedict O’Mahoney
- http://english-www.hss.cmu.edu/Govt/Law.html Carnegie Mellon University
- http://www.copyright.com/ Copyright clearance center (permission to photocopy works for classes,etc.
- http://webster.commnet.edu/mla/index.shtml Guide for writing research papers
- Encarta® 98 Desk Encyclopedia © & 1996-97 Microsoft Corporation.
- The World Almanac® and Book of Facts 1997 is licensed from K-III Reference Corporation. Copyright © 1996 by K-III Reference Corporation.