A reader, M, is puzzled by the notion of copyrighting a website.
“I have seen personal genealogy websites that say copyright (c) 2012 etc.,” M notes. “My question is how does a website get to be copyrighted and what does the copyright protect?”
Great question and, since The Legal Genealogist has more than one copyrighted website, one that’s near and dear to my heart.
The fact is that there’s a persistent myth out there that, if it’s on the internet, it isn’t copyrighted, it isn’t protected, and you’re free to use it however you like. Worse, there’s a persistent attitude out there that people shouldn’t post anything on the internet if they don’t want it copied.
Horse … um … manure. In reality, most of what is out there on the internet is copyrighted, it is protected and you can be sued if you use it without permission.
And copying somebody else’s work, whether it’s copyrighted or not, is ethically wrong, no matter what the law says and no matter if you get sued or not.
There are two parts to this question and let’s deal with the easy one first.
How to copyright a website
You might be surprised at the answer to this question. The fact is, you don’t have to do a single solitary thing to get copyright protection for your website except put it together and put it on the web.
Copyright protection in the United States and in most countries today is automatic. If what you’re producing can be copyrighted (and we’ll get to that question next), then the minute it’s out of your brain cells and onto paper (or today’s modern digital equivalent of paper, which includes the web), then you automatically have copyright of that material.
You don’t have to believe me. Here’s what the U.S. Copyright Office says: “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.”1
There was a time when you had to put the © copyright symbol on the material and register the copyright with the copyright office of the country where you live. You don’t have to do that any more. I repeat, copyright is automatic: you don’t have to put the © copyright symbol on the material,2 though you can (and I do), and you don’t have to register your copyright with the copyright office of the country where you live,3 though you can — and there are some extra protections if you do.4
What that means, of course, is that every single thing that’s out there on any of the genealogy websites that you might want to copy is potentially protected by copyright even if the particular website doesn’t have that little © 2012 symbol on it anywhere.
What copyright covers on a website
Copyright protects “original works of authorship.”5 That includes “literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.”6 It doesn’t include “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”7
So let’s look at the three key parts of a website.
Text. Anything written for the website is copyrighted automatically by the website owner (or the author, if that’s not the website owner). Any blog of mine is automatically copyrighted by me; any guest blog is automatically copyrighted by the guest blogger. You should assume that anything written for a genealogy website is copyright-protected and don’t copy it without permission.
It is true that a fact can’t be copyrighted. If a personal genealogy website has the fact that Peter McCune married Christiana O’Brien at Richards’ Fort in 1781, that fact by itself isn’t protected.
But the way it’s said can be protected. There’s a big difference between “Peter McCune m. Christiana O’Brien, Richards’ Fort, 1781,” and “He was resplendent in a coat of blue, faced with red, and a “mcarnona (macaroni) hat such as soldiers wore.” She was just 14, so young that a witness to the wedding jokingly advised her to roll up handkerchiefs and stuff them in her dress to give herself the appearance of having breasts. The time was January 1781, the place Richards’ Fort in Monongalia County, Virginia – a dangerous time and place for a young couple to begin their life together.”
So what about websites that are mostly factual, with family trees and birth-marriage-death data? Again, individual facts can’t be copyrighted. But once someone starts choosing which facts to include, how to include them, what order they should be presented in — that changes things. Those kinds of editorial decisions reflect the small creative spark that’s needed to cross the line from not-copyrightable-fact to copyrighted material. That’s why you can’t simply copy a whole family tree that you find online without permission.
The same thing is true for websites that have collections of links to other genealogy-related websites. The reason you can’t legally copy websites like, for example, Cyndi’s List or Linkpendium is because both of them have creative elements to the content: specific links are chosen, organized in a particular way and described in particular words that show the individual creativity of the website owners.
Photos and images. If you took the photos, they’re copyrighted. Period. If you bought the rights to use images and created a new image from the ones you have the rights to, then you have the copyright in the new image. An example is my header banner here at The Legal Genealogist; it’s a composite of my own creation from images that I have the right to use. Anybody going to any website with photos should assume that they’re copyrighted and ask permission if you want to reuse them — and make sure the website owner has the right to give permission before you reuse them.
Website designs and codes. Most of us who run websites don’t write our own underlying HTML code.8 The Legal Genealogist runs on two platforms: WordPress for the blog; and Joomla for the website as a whole. Both are open-source platforms that a free to use.
But modifications to the code to create a specific look and feel — usually called a theme — that’s another story. It’s a hot topic in the open-source community9 but safety says you should treat them as protected as well. Don’t copy ‘em without permission — and make sure the person giving permission is the one who owns the rights.
If it’s on the internet, it’s probably copyrighted. Follow the Golden Rule: you’d want somebody to ask permission to copy your work, so make sure you ask permission before you copy anybody else’s work.
- U.S. Copyright Office, “Copyright in General: When is my work protected?,” Copyright.gov (http://www.copyright.gov : accessed 13 Nov 2012). ↩
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 4 (http://www.copyright.gov : accessed 13 Nov 2012) (“The use of a copyright notice is no longer required under U. S. law”). ↩
- Ibid., p. 3. ↩
- Ibid., p. 7. ↩
- 17 U.S.C. § 102(a) (“Copyright protection subsists, in accordance with this title, in original works of authorship”). ↩
- U.S. Copyright Office, “Copyright in General: What does copyright protect?,” Copyright.gov (http://www.copyright.gov : accessed 13 Nov 2012). ↩
- Ibid. ↩
- The notion that I could write this kind of code is enough to make a cat laugh. The last thing I coded was a program in BASIC that painted the American flag on the screen and played The Star-Spangled Banner. I could get it to start. I couldn’t get it to stop without rebooting the computer. The word “hopeless” comes to mind… ↩
- See, e.g., Chip Bennett, WordPress Themes, GPL, and Copyright Case Law, CB.blog, posted 20 Jul 2010 (http://www.chipbennett.net : accessed 13 Nov 2012). ↩