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Nothing wrong with wanting a return

Reader Ruth is offended when people post things on the internet and don’t make it easy for others to use them:

I’ve noticed that some people claim “ownership” of photos of documents– they either claim the photo is copyrighted, or they somehow superimpose something over the photo that shows they “own” it….

I understand a photo studio doing something like that— I know for example that Olan Mills has ownership and copyright of the photos taken of my family back in the 70’s. But if I go to my local branch of the National Archives, and I take a photo of someone’s WWI draft card, or their naturalization petition, do I “own” that photo? Is it legal/fair/appropriate/honest etc to claim ownership of the photo? I’ve sometimes found photographs of vital records, letters, immigration paperwork etc, on someone’s blog, but they’ve written the name of their website/blog diagonally across the entire face of the photo of the document, so that it sort of ruins the photo.

She explained that: “in part anyway, I just don’t understand the POINT of it. I frequently make trips to the branch of the National Archives near me, and I take photographs of documents for people who are hoping to find information about their ancestry, ALL THE TIME– and when I send them the photos, I don’t write my name across it and ruin the photo for them, nor do I claim to ‘own’ the photograph or try to copyright it.”

The Legal Genealogist understands this viewpoint… but doesn’t entirely share it.

So let’s work through this.

First off, let’s dispose of the copyright issue. Nobody can copyright a photograph of something someone else has created when all they are doing is trying to exactly reproduce what some other person has created. Making a copy — by photography or any other means — doesn’t change the fact that it’s still something someone else has created.

And only the creator can copyright that work. That right to copyright protection is one of the exclusive rights given by copyright law to the creator and only the creator.1

So no, nobody can justifiably claim copyright in a plain vanilla photograph he or she took of a document at the National Archives — or anywhere else, for that matter. Nobody, that is, who didn’t create the document itself.

The real issue here is the right of the photographer to restrict and control the use of this copy of this photograph, not the right to copyright it and control all uses of any copy of the document.

Got that?

Okay.

So… you have someone who went to the effort to obtain a document or to otherwise create a record.

WATERMARKThat person may have spent a very large amount of money to do that. Travel costs to a particular archive are never cheap, so doing it in person can be very expensive. The person may have hired a professional to get the record, which isn’t cheap. Even getting it from the National Archives isn’t chump change: a land record is $50, others run $70, a pension file can be well over $100.

And that person who spent the money, or even just spent the time and effort, puts it online — but doesn’t make it easy for everyone else to simply take it. He or she does what I did with the image on this blog post: watermark it so that it can’t be simply taken and used.2

And there isn’t anything at all that’s wrong with that. It’s perfectly legal — and it isn’t at all unfair.

Because nobody has a right to anyone else’s work.

And that includes the photographs and copies of documents that others have accumulated — and paid for.

The person who took the photograph or got the document may want others to share something in return — such as whatever family information we have about our part of the family in return for getting an unwatermarked copy of the photograph of that document.

That’s perfectly reasonable, it’s perfectly legal — and yes, it is fair.

The person may want to be sure the document is used properly — linked to the right person on a family tree and not to the wrong person, for example.

That’s perfectly reasonable, it’s perfectly legal — and yes, it is fair.

And the person may want to control who uses this particular copy of this particular photograph (particularly if it’s a family photograph) and how it’s used.

And that too is perfectly reasonable, it’s perfectly legal — and yes, it is fair.

Because — let me repeat — nobody has a right to anyone else’s work.

Yes, we are a sharing community. Yes, we collaborate with others. But we don’t have to share if we choose not to. We don’t have to share without conditions and controls. We don’t have to share when those who want us to share offer nothing in return.

There’s nothing at all wrong with putting a watermark on a photograph of a document posted online — and asking for something in return for providing an unwatermarked copy.

Sharing is, or ought to be, two-way.


SOURCES

  1. See generally U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 19 July 2016.
  2. See Merriam-Webster Online Dictionary (http://www.m-w.com : accessed 19 July 2016), “watermark.”
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