Copyright and the website

Website copyrights

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.

Bottom line

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.


 
SOURCES

  1. U.S. Copyright Office, “Copyright in General: When is my work protected?,” Copyright.gov (http://www.copyright.gov : accessed 13 Nov 2012).
  2. 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”).
  3. Ibid., p. 3.
  4. Ibid., p. 7.
  5. 17 U.S.C. § 102(a) (“Copyright protection subsists, in accordance with this title, in original works of authorship”).
  6. U.S. Copyright Office, “Copyright in General: What does copyright protect?,” Copyright.gov (http://www.copyright.gov : accessed 13 Nov 2012).
  7. Ibid.
  8. 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…
  9. 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).
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32 Responses to Copyright and the website

  1. Great article. This really lays the basics out and why everyone needs to follow the rules.

    • Judy G. Russell says:

      It’s in all of our interests to follow the rules, Anne. If we don’t, people will stop putting information online — and then where will we be???

  2. Debbie Mieszala says:

    Thank you for another great blog post. It will help those who don’t know about this, and remind those who do that violations are both of an ethical and legal nature.

    • Judy G. Russell says:

      Thanks for the kind words, Debbie. I think most genealogists want to do what’s right — we just don’t always know what the rules are. That’s why my bottom line on just about everything is: Ask for permission!!!

  3. Polly Kimmitt says:

    Great post, Judy. Can’t say it enough! The average person doesn’t even think about it, but as genealogists, we need to be aware. I’ve got a question for you. What about all of this reposting, retweeting, etc? Is permission built in to FB and Twitter for us to do that? There’s a fuzzy world where it all gets muddled in my mind.

  4. Polly Kimmitt says:

    Footnote #8 = Funniest Footnote Ever.

  5. Cohen Swiney says:

    Great post, really informative, well put together.

  6. Keep fighting the good fight for us, Judy! I hope more people read your post (and I’m talking to YOU, people-who-steal-stuff-from-blogs-and-web-sites-and-post-on-your-online-trees).

    BTW, I remember that BASIC assignment. I thought it was the coolest thing ever (at that time). Unfortunately, I was later told – during a FORTRAN class – that I could have a promising career in writing user manuals, so that probably tells you something about my coding skills. (Teacher said it was because I was good at explaining things, but I’m not so sure.)

  7. Judy, thanks for this informative post. Of course…it brings another question to mind…

    In the academic world–where one fondly-held tradition is that knowledge is carefully constructed from other facts we already know–it is quite common to actually quote small sections of other authors’ works, mainly to substantiate points made in the current article. Duly cited, etc., etc., it is the norm in many scholarly journals and other publications.

    Enter the brave new world of the internet, and suddenly it is absolutely verboten to include small examples (previously published by other content creators) of what the author is trying to debate, by virtue of the fact that that piece of work is copyrighted material.

    …or at least that’s the way it seems to me, judging from what I read online.

    Is there any wiggle room for quoting online? Like fair use concepts? (With proper attribution, of course, following the example of academic journals.)

    • Judy G. Russell says:

      Absolutely, there IS wiggle room, Jacqi, and it’s clear I need to do a better job explaining fair use in this context, because it absolutely DOES apply online as well as offline. Let me add that to the list for the future.

  8. 71101,2454 says:

    I found “That’s why you can’t simply copy a whole family tree that you find online without permission” interesting. Enforcement would probably be really difficult, particularly since the tree has probably been merged with other thefts research.

  9. Debi Austen says:

    Great post. Although, sadly, the people who should be reading it and taking notice are probably not. I’ve only had one thing “borrowed” from my blog and I still feel very violated. I would gladly have shared willingly if only she had asked. Sigh.

    • Judy G. Russell says:

      I sure know the feeling, Debi. I had a “borrower” once flatly deny ever having been on the website from which the item was pirated… even though the version “borrowed” was a PDF file obviously lifted lock, stock and barrel (a remarkably funny typo included). I’d have given permission if asked… and if attribution had been given.

  10. Lisa Little says:

    Great article!! I had a question… What if I went out to someplace and found an ususual hard to access source – I paid to buy the source (which was out of copyright) and transcribed it word for word onto my website.

    Is my work covered under copyright even though everything is factual?

    If it is not covered under copyright, is it ethical for anyone to copy with or without my permission?

    • Judy G. Russell says:

      What if I went out to someplace and found an ususual hard to access source – I paid to buy the source (which was out of copyright) and transcribed it word for word onto my website. Is my work covered under copyright even though everything is factual?

      No. Once copyright is gone, it’s gone forever. Only the new material you add to it — new introductions or comments etc. — would be protected.

      If it is not covered under copyright, is it ethical for anyone to copy with or without my permission?

      In my book, that’s a given: if I didn’t do the work, then ethics demands that I ask for your permission before I copy it. I can use your work — cite it and incorporate parts of it into my own work — but copying? I’d feel that I was cheating if I copied what you’d done.

  11. Pierce Reid says:

    If you state the fact that John Doe married Jane Smith, that is not copyrighted. If John Doe did NOT marry Jane Smith, but you said he did, then that is fiction, even if you thought he did. Is that fiction copyrighted? I suspect most genealogical reports contain some fiction.

    • Judy G. Russell says:

      Well, yeah, actually if it is fiction it will have that creative spark and be eligible for copyright! (Grinning here, Pierce. Good one.)

  12. Celia Lewis says:

    Oh, you are SO clear, Judy. I think I kind of know all this, and then I read very very carefully, reading all footnotes like the long-time student I love to be (giggles at #8), and I finally get it clear as a bell. Whew! Thanks so much for your amusing and detailed legal teaching to all of us! Fabulous.

  13. M says:

    Thank you so much for answering my question. You answer was very complete and answered my questions. Thanks so much.

  14. Great information – easy to understand. Like other bloggers, I spend too much time dealing with over-eager folks who copy material and re-post it to other internet sites. The excuses run from “If it’s online, it has to be free” to “I didn’t see the copyright notice on your blog.” I’m getting tired. When does it stop?

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