A Bit More About Genealogy and The (Copyright) Law

While I was plagiarizing the United States Copyright Office‘s FAQs for the last post, I noticed two that are of direct interest to genealogists: [I've edited the answers for stylistic purposes only].

Can I register a diary I found in my grandmother’s attic?

You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself. Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. 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. Copyright is a personal property right, and it is subject to the various state laws that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. A copyright may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

My local copying store will not make reproductions of old family photographs. What can I do?

Photocopying shops, photography stores and other photo developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued. These fears are not unreasonable, because copy shops have been sued for reproducing copyrighted works and have been required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if they reproduce a work even if they did not know the work was copyrighted.

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.

There may be situations in which the reproduction of a photograph may be a “fair use” under the copyright law. However, even if a person determines a use to be a “fair use” under the factors of section 107 of the Copyright Act, a copy shop or other third party need not accept the person’s assertion that the use is noninfringing. Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law.

Ask A Lawyer

So it occurred to me that every genealogical or historical society should have a lawyer. Ideally, this lawyer should be a member of the organization with an understanding of the purposes and goals of the group and–best of all–willing to donate his or her legal services pro bono. Another way for a society to get legal services is through groups in some cities that make lawyers available to nonprofit groups. For example, in some cities there are groups called “Business Volunteers for the Arts” or something to that effect that lend legal, financial, and other professional acumen to nonprofit groups.

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Craig


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