Questions and answers about mitochondrial DNA

Q. So why an mtDNA Q&A today anyway?

A. Because there’s a major sale going on — a March Madness sale — at Family Tree DNA that ends at 11:59 p.m. CDT on Tuesday, April 1, that offers real savings on one test and one test only: the full mitochondrial (mtDNA) sequence.

Q. Um… what’s mtDNA?

A. That’s the type of DNA passed down from a mother to all of her children, but that only her daughters can pass on. a particular type of DNA that everyone has, passed to us from our mothers. Because of the way it’s inherited, all of a mother’s children will have the same mtDNA, but only her daughters will pass it on to their children. So it gives us a look at our maternal line: our mother’s mother’s mother’s line and on back through the generations.1

Q. Can you show me that a little better?

A. Yep: look at this chart. Figure you’re one of the folks in red at the bottom — male or female, since we all have mtDNA — and trace it back: it looks at our mother’s mother’s mother’s line and on back through the generations.


Q. How many markers does this test look at? 25? 37?

A. Those are the numbers for the guys’ test — the YDNA test. Mitochondrial DNA isn’t measured that way. For mtDNA you look at either part of the mtDNA (specifically in areas called hypervariable regions, or HVR1 and HVR2) or all of the mtDNA (HVR1 plus HVR2 and the coding region).2

Q. Which test is on sale?

A. The “whole thing” test: the full mitochondrial sequence looks at HVR1 and HVR2 and the coding region.

Q. And that will tell me…?

A. Everything you can know about your mtDNA: your haplogroup like A or H or K or U, plus how your own personal mtDNA differs from a reference mtDNA in ways that make you different from other folks who are not genetically related to you and similar to other folks who are genetically related to you.

Q. What’s a haplogroup?

A. Technically, it’s “a genetic population group of people who share a common ancestor on the patrilineal or matrilineal line.”3 Think of it like your town sitting somewhere in the branches of the human family tree. Since we’re looking at the matilineal line with this test, everybody in that town with you came from the same area — the same common mother back thousands of years ago.

Q. What does that do for my genealogy?

A. It’s really a matter of seeing what it might do. No DNA test comes with guarantees. But let’s say you have a family story that your maternal grandmother or great grandmother was Native American. It might confirm that story. Or it might tell you that your mother’s line is strongly European — so you don’t waste time chasing a Native American story in that particular line. (It could be a maternal great grandfather, not great grandmother, still.)

Q. What about the individual results — those people you say I’m genetically related to — how does that help?

A. Finding out you and someone else are — or aren’t — related in a direct maternal line can answer some pretty big brickwall questions. I’ve written about some of these issues in my own family4 and in questions from readers.5 And yesterday’s blog by Roberta Estes at DNAeXplained is a must-read for anybody who wants to know why to mtDNA test.6

Q. Should I test myself or my mother or my brother?

A. I’d always test the oldest available generation — mother before child, grandmother before mother — mostly because I’m always thinking about other later DNA tests I might be able to afford, and an older generation is always better for an autosomal DNA test.

Q. Only my brother and I are available to test. Which of us is best?

A. In most cases, both of you will have exactly the same mtDNA as each other — and exactly the same as your mother had, and her mother, and her mother. But remember — even though mtDNA changes slowly — that small change can happen any time in any generation. I’m aware of one case where a change occurred when mtDNA was passed from a mother to one of her children. So in most cases it won’t matter which of you is tested for mtDNA purposes, but boy… if you can afford to test both of you, that’s the way to go. Then later you can do a YDNA test for him (getting information on your father’s father’s line)7 and autosomal testing on both of you (to find cousins alive today).8

Q. Back to this sale thing, what’s the difference between an add-on and a new kit?

A. An add-on means you’re already a Family Tree DNA customer but have never done mtDNA testing. A new kit means you’re not yet a Family Tree DNA customer.

Q. How much can I save?

A. You can save about a third on the cost of this test. Full price is usually $199, and the sale price is $139 — a $60 savings.

Q. Why can’t I get the cheaper upgrade test?

A. You can — if you’ve already done some mtDNA testing at Family Tree DNA and want more information. If you’ve tested only the HVR1 region, you can upgrade for $99, down from the regular $149. If you’ve tested both HVR1 and HVR2, the upgrade is $89.

Q. How many kits can I buy?

A. How many can you afford — and realistically how many people do you want to test?

Q. Are any other tests on sale?

A. Not in this sale, but check back from time to time: Family Tree DNA runs sales three or four times a year.

Q. How do I find out more?

A. Head on over to Family Tree DNA.


  1. See ISOGG Wiki (, “Mitochondrial DNA tests,” rev. 5 Mar 2014.
  2. Ibid.
  3. ISOGG Wiki (, “Haplogroup,” rev. 4 Mar 2014.
  4. See Judy G. Russell, “Oh, mama… a use for mtDNA,” The Legal Genealogist, posted 12 Feb 2012 ( : accessed 27 Mar 2014). Also, “Looking for an Alabama relative,” posted 1 July 2012.
  5. Judy G. Russell, “DNA and the question of how many wives,” The Legal Genealogist, posted 8 July 2012 ( : accessed 27 Mar 2014).
  6. Roberta Estes, “Mitochondrial – the Maligned DNA,DNAeXplained, posted 29 Mar 2014 ( : accessed 29 Mar 2014).
  7. See ISOGG Wiki (, “Y chromosome DNA tests,” rev. 5 Mar 2014.
  8. ISOGG Wiki (, “Autosomal DNA,” rev. 1 Feb 2014.
Posted in DNA | Leave a comment

Limited time mtDNA sale

No, it isn’t Sunday.

Really, it’s not.

And, yes, The Legal Genealogist usually only writes about DNA on Sundays.

But there have to be exceptions in exceptional cases.

mtDNA.saleSuch as when there’s a huge sale that starts today and is only going to last through Tuesday, 11:59 PM CDT April 1, 2014. (That’s 10:59 p.m. MDT, 9:59 p.m. PDT, and for East Coasters, 12:59 a.m. EDT April 2nd.)

It’s the March Madness sale at Family Tree DNA with a huge price cut for one particular DNA test, the mitochondrial (mtDNA) full sequence test.

Now this is a test that looks at a particular type of DNA that everyone has, passed to us from our mothers. Because of the way it’s inherited, all of a mother’s children will have the same mtDNA, but only her daughters will pass it on to their children. So it gives us a look at our maternal line: our mother’s mother’s mother’s line and on back through the generations.1

It’s a type of DNA that changes very very little over the generations. Scientists think there may be only one very small change — called a mutation, but not in a bad way — in hundreds, even thousands of years. And because it travels down the female line, and we all fight our way through all those surname changes, well… there’s a reason why it’s sometimes considered the redheaded foster stepchild of DNA testing.2

But it’s also an extremely powerful form of testing when it’s targeted at specific research questions. I’ve written more than once — just this past Sunday even! — about needing it to try to find out who the mother of my third great grandmother Margaret (Battles) Shew was.3 And about using it to check a claim that one of my ancestors was Native American. (She was not.)4

It can help answer questions like the one a reader asked about how many wives a second great grandfather had, by testing direct female descendants of the oldest — and youngest — known daughters.5

And it can help validate a theory on whose bones were buried beneath a car park in Leicester, England, putting to rest (pun intended) the question of the final burial place of England’s King Richard III. 6

And for the next five days — today through April 1 — the most complete, most powerful test of your mtDNA is on sale. The reduced prices for those who’ve done no mtDNA testing or who’ve done less complete tests to upgrade to the full mitochondrial sequence during this sale are:

• mtDNAFullSequence Add-on and New Kits – Was $199 US Now $139 US

• mtHVR1toMEGA Upgrade – Was $149 US Now $99 US

• mtHVR2toMEGA Upgrade – Was $159 US Now $89 US

And I couldn’t agree more with Family Tree DNA’s statement of the three key reasons to do this:

• Unlock the full potential of mtDNA testing.

• Enjoy the definitive test for your direct maternal line.

• Compare to others at the highest mtDNA testing level.

You can get more info on this testing here at Family Tree DNA

And remember … if you’re a direct line female descendant of Ann (Jacobs) Battles of Cherokee County, Alabama, or Kiziah (Wright) Battles of Blount County, Alabama, or Nancy (Wright) Battles of St. Clair County, Alabama, I have a test kit waiting for you at my expense…


  1. See ISOGG Wiki (, “Mitochondrial DNA tests,” rev. 5 Mar 2014.
  2. Judy G. Russell, “Picking your Battles,” The Legal Genealogist, posted 23 Mar 2014 ( : accessed 27 Mar 2014).
  3. Ibid. Also, Judy G. Russell, “Looking for an Alabama relative,” The Legal Genealogist, posted 1 July 2012 ( : accessed 27 Mar 2014).
  4. Judy G. Russell, “Oh, mama… a use for mtDNA,” The Legal Genealogist, posted 12 Feb 2012 ( : accessed 27 Mar 2014).
  5. Judy G. Russell, “DNA and the question of how many wives,” The Legal Genealogist, posted 8 July 2012 ( : accessed 27 Mar 2014).
  6. Judy G. Russell, “Rewriting history through DNA,” The Legal Genealogist, posted 3 Feb 2013 and “And the answer is…,” posted 4 Feb 2013 ( : accessed 27 Mar 2014).
Posted in DNA | 5 Comments

The not-so-obvious term

Okay, this one seems like it should be a no-brainer, right?

We all know what probate means.

probateI mean, seriously, we can’t hardly consider ourselves genealogists if we haven’t at least looked at probate records, now can we?

So how ’bout if The Legal Genealogist tells you that, when you come across something that was probated, it may not be in a probate matter at all?

The issue came up when Jeff Thomas, a Baker cousin of mine, started looking at an ancestor who lived in South Carolina in 1784, but owned land in Georgia.

He’s trying to nail down this particular ancestor’s date of birth. There obviously aren’t any birth records for the 1700s in that part of the country, and there’s no family Bible or other record to shed light on it.

So Jeff is carefully and methodically working his way through the available documents surrounding this ancestor to see what light they might shed on the question.

In one instance, for example, this ancestor was named in his father’s 1746 will and identified as being under age. In the will, he received a particular piece of land, which he sold in 1756.

Aha! Major clues!

Jeff realized that, to have been named as a child — a minor — in his father’s 1746 will, his ancestor’s birth had to have occurred less than 21 years earlier.1 So he couldn’t have been born later [correction: earlier] than 1725.

He also realized that, for the ancestor to have sold the land on his own, he’d have had to have been of age. Otherwise, he’d have had to have a guardian sell it for him. And to be at least 21 in 1756, he had to have been born not later than 1735. So working with these two documents alone, the range of possible birth years has been narrowed down to somewhere between 1725 and 1735.

Fast forward all those years to the 1784 land transaction. The land was in Effingham County, Georgia. The buyer was described as a planter of Effingham County. But the seller — Jeff’s ancestor — lived across the border in Camden County, the old 96 District, in South Carolina. And, according to the records Jeff has, the deed was “probated in 96 Dist.” before a Justice of the Peace there.

So… was this in connection with a will — the kind of thing we’d expect to see when the word probated is used?

Probably not.

Yes, the typical way the word “probate” is used in the law is the way you see it in the image here today: it’s used to refer to the “act or process of proving a will. The proof before an ordinary, surrogate, register, or other duly authorized person that a document produced before him for official recognition and registration, and alleged to be the last will and testament of a certain deceased person, is such in reality.”2

But there’s a second meaning, especially when it’s used as a verb the way it is here.3 It also means — simply — “to prove” and the proof itself can be called “probation”: “The evidence which proves a thing. It is either by record, writing, the party’s own oath, or the testimony of witnesses.”4 Or, as Black’s Law Dictionary puts it, probation is the “act of proving; evidence; proof.”5

And to prove something, it means to “establish the genuineness and due execution of a paper, propounded to the proper court or officer.”6

So why was the term “probated” used in the land case rather than “proved”?

Part of the answer may come from local custom or the idiosyncracies of the justice of the peace before whom the proof was submitted.

But the biggest part probably comes from what else Black’s Law Dictionary says about probate. It notes that the word was also used “to designate the proof of his claim made by a non-resident plaintiff (when the same is on book-account, promissory note, etc.) who swears to the correctness and justness of the same, and that it is due, before a notary or other officer in his own state; also of the copy or statement of such claim filed in court, with the jurat of such notary attached.”7

Think about that for a moment. Though the context suggested is in actions for debt, it works perfectly well in a land deal as well:

• Buyer and seller from different states.

• Buyer needs to establish in his home state that the deed is valid.

• Seller (or seller’s witnesses) don’t want to travel to buyer’s state to prove the deed.

• Answer: seller or seller’s witnesses go to seller’s local court and prove it — probate it — there, and the proof gets sent along from one court to the other.

Probate. Not always what we think it is.


  1. See generally Judy G. Russell, “Part 3: How old did folks have to be,” The Legal Genealogist, posted 20 Jan 2012 ( : accessed 26 Mar 2014).
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 945, “probate.”
  3. Verb. You remember those, right? From grammar school? That’s “a word (such as jump, think, happen, or exist) that is usually one of the main parts of a sentence and that expresses an action, an occurrence, or a state of being.” Merriam-Webster Online Dictionary ( : accessed 26 Mar 2014), “verb.” That much even I remember. Just don’t ask me to diagram a sentence.
  4. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society ( : accessed 26 Mar 2014), “probation.”
  5. Black, A Dictionary of Law, 945, “probation.”
  6. Ibid., 959, “prove.”
  7. Ibid., 945, “probate.”
Posted in Legal definitions | 6 Comments

Just one county’s courts

Time and time again, somebody says it — proudly:

“I got the county court records on microfilm!”

And then looks absolutely blank when The Legal Genealogist asks the follow-up question: “So… when are you going to the courthouse?”

Inevitably, after a pause, the person will ask: “Why should I go to the courthouse? After all, what else can there be?

Oh my.

Allow me to introduce you to the Isle of Wight County.

Isle_of_WightIt’s a Virginia County in the Hampton Roads metropolitan area. As you can see from the map, it’s tucked up along the James River just west of the City of Norfolk.

Its original courthouse was built in 1750, a replacement courthouse — still standing and occasionally still used for trials — was built in 1800, and the modern courthouse there opened in 2010.1

Its size today is 363 square miles (part of that is water). Its 1790 population was just over 9,000, and it hovered around that for decades. In 1880, it had 10,572 people; even today its population is only about 35,000.2 Just by way of contrast, Henrico County — just outside the City of Richmond — has 245 square miles and a 2010 population of more than 300,000,3 while Fairfax County — in the Northern Virginia suburbs — has 406 square miles and a 2010 population of more than 1,000,000.4

Now the Isle of Wight is far from Virginia’s smallest county — Arlington County in Northern Virginia has only 26 square miles5 — and not the least populated as of 2010 — that was Highland County in western Virginia.6

So why am I introducing you to this particular county?

Two reasons: (1) because I think it has a really cool name — even the county seat is called Isle of Wight — and (2) because so many of its court records have already been digitized. In that, it’s an exception: there may be other courts whose records have been as thoroughly microfilmed, but few if any where so many have already been put online. You can see them on FamilySearch in its Isle of Wight County Records database.7

So… what else can there be? Here’s an abbreviated version of the court records digitized and available in that database:

• Chancery execution book vol 1 1832-1908
• Chancery order book vol 1-6 1831-1909
• Chancery papers 1844-1855
• Chancery process book vol 2, 4 1831-1855
• Chancery rule book vol 1 1871-1903
• Charter book 1870-1905
• Circuit Court bond book vol 1 1889-1909
• Circuit Court common law docket vol 2 1871-1905
• Circuit Court common law order book vol 1 1831-1840
• Circuit Court common law process book vol 1 1849-1870
• Circuit court docket vol 5 1831-1858
• Circuit Court rule book vol 3 1885-1905
• Common law docket and rule book vol 6A 1846-1885
• Common law docket vol 1-5 1883-1887
• Common law docket vol 6 1836-1845
• Common law docket vol 6A 1859-1870
• Common law record book vol 1 1841-1889
• Common law witness docket vol 1-3 1831-1875
• County account book vol 1 1882-1885
• County Court common law execution book vol 2 1832-1842
• County Court docket index vol 1 1900
• County Court docket vol 13 1845-1870
• County Court execution book vol 4 1870-1892
• County Court judgments vol 1 1878-1888
• County Court order book and index 3, 19 1871-1873, 1893-1898
• County Court order book (8 vols.) 1866-1931 (gaps)
• County Court process book vol 1-2 1845-1865, 1892-1903
• County Court rule book (6 vols.) 1828-1874
• County Court witness docket (3 vols.) 1832-1870 (gaps)
• County executions vol 3 1849-1869
• County fund 1913-1919
• County road fund 1914-1915
• County road fund 1918-1919
• Court case book (new causes) vol 1 1797-1803
• Court case book vol 2 1803-1807
• Court docket 96 vols.) 1839-1894 (gaps)
• Court minute Book vol 1 1826-1830
• Court papers vol 1-17 1846-1914 (gaps)
• Court papers-miscellaneous vol 1-23 1746-1903
• Court rule book vol 1-2 1838-1871
• Execution book vol 1-2 1838-1870
• Execution book vol 1(A) 1903-1906
• Executions returned vol 1 1883-1898
• Fee book vol 1-38 1773-1879
• Fiduciaries (1-3) 1906-1930
• Hardy District road fund 1914, 1918-1919
• Index to fee book vol 1 1780-1781
• Index to judgment docket vol 3B 1871
• Index to reservations of title 1891-1905
• Index to vendors and vendees 1850-1950
• Judgment docket and index vol 1 1841-1870
• Judgment docket vol 2 1870-1897
• Judgments 1833-1834
• List of warrants vol 1 1884
• Miscellaneous court records 1847-1857
• Miscellaneous court records 1873-1943
• Miscellaneous court records 1907
• Newport District road fund 1914-1915, 1918-1919
• Order book and index vol 15 1879-1881
• Poor fund 1914-1915, 1918-1919
• Record of criminal cases vol 1 1888-1901
• Register of convicts vol 1 1871-1917
• Reservations of title 1891-1905
• Supreme court rule book vol 1 1900
• Windsor District road fund 1914-1915, 1918-1919
• Witness docket book vol 1-3 1871-1916

Let’s see here… yes, there are the order books of the county court. Those would be the day-to-day records of happenings in the county courts.

And what else can there be?

Criminal court cases, a register of convicts, books with lists of witnesses in civil and criminal cases, dozens of volumes of fee books with lists of fees paid for so many things (registering freedom papers for emancipated slaves, as just one example). Tons of case papers — where some of the best details can be found. Records of the county road funds and the poor funds and charters for corporations that did business in the county and… and… and…

This is just one relatively small county. And just from this list, you can see why it pays to take that road trip, go to the courthouse and take the time to do the one thing we just can’t do online: look around. That dusty volume over there? The one nobody has looked at in years, much less ever microfilmed? That’s the one that might have the answer to our most perplexing brickwall question.

And oh by the way that court record list above? It doesn’t include the probate records — wills, guardianships, estate bonds — all those neat things we want to see to help us prove relationships. That’s a separate list and it includes …

We’ll leave those for another day.


Image: “Map of Virginia highlighting Isle of Wight County,” David Benbennick, via Wikimedia Commons

  1. Wikipedia (, “Isle of Wight County, Virginia,” rev. 10 Jan 2014.
  2. Ibid.
  3. Wikipedia (, “Henrico County, Virginia,” rev. 15 Feb 2014.
  4. Wikipedia (, “Fairfax County, Virginia,” rev. 4 Mar 2014.
  5. Profile,” Arlington Facts and Stats, Arlington County, Virginia ( : accessed 25 Mar 2014).
  6. Virginia QuickFacts,” Advanced Search, American FactFinder, U.S. Census Bureau ( : accessed 25 Mar 2014).
  7. Digital images, “Virginia, Isle of Wight County Records, 1634-1951,” FamilySearch ( : accessed 25 Mar 2014).
Posted in General, Resources | 6 Comments

Even when they add up to dimes

The Legal Genealogist is changing hats this morning to association member.

Like many of you, I received an email yesterday advising that the dues for the Association of Professional Genealogists would be going up effective 1 July 2014.

APG.duesAnd maybe you’re sitting there wondering if membership is worth what the new higher dues will be:

• For full membership, worldwide, the dues will be $100 U.S.
• There’s a new youth member category, for those under age 25, and dues will be $50 U.S.
• And to subscribe to the APG Quarterly alone, the cost will be $45.

Or maybe you’ve been thinking about joining APG, and now you’re really wondering if it’s worth it.

I can only give you my take on it. And my own answer is yes, yes, and (can I say this online) hell yes!

That’s my answer in part because of the obvious up-front benefits of being an APG member:

Webinars that are free for everyone but available only to APG members if you can’t attend in real-time. Among the ones recorded and available right now on the member website are:

DNA Explained. Part 1: An Intro to DNA for Genealogists, Roberta Estes
DNA Explained. Part 2: Yikes, My DNA Results are Back! Now What?, Roberta Estes
Working with Autosomal DNA: Intermediate/Advanced Applications, CeCe Moore
Juggling Complex Projects While Staying on Track, J. Mark Lowe CG
Facts, Photos and Fair Use: Copyright Law for Genealogists, Judy G. Russell JD, CG, CGL

Discussion groups just about every week that cover topics ranging from writing and blogging to forensic genealogy and building a business as a genealogist. The schedule for just the next few weeks includes:

• March 26, 9 p.m. EDT

Writing and Blogging, led by Harold Henderson, CG

• April 4, 11 a.m. EDT

Personal Branding and Diversifying Your Business to Make a Profit, led by Michael Hait, CG

• April 8, 9:00 p.m. EDT

Keeping Your Business Plans Up-to-Date, led by Angela Packer McGhie, 8 April

• April 9, 1:00 p.m. EDT

Starting a Business, led by Amy Arner

• April 16, 12:00 p.m. EDT

Writing and Blogging, led by Harold Henderson, CG

• April 30, 9:00 p.m. EDT

Forensic Genealogy, led by Cathi Becker Wiest Desmarais, CG, Melanie D. Holtz, CG, and Kelvin L. Meyers

The APG Quarterly, a publication I read from cover to cover every time it comes in. In addition to articles on professional development, there have been goodies like a whole explanation of trademarks by my Rutgers Law colleague John Kettle and a thorough guide to Irish research by Cathi Becker Wiest Desmarais and a primer on heraldry and coats of arms by Bruce Durie.

The APG Professional Management Conference each year, where topics include again both professional development and others focused on our individual skills as genealogists — whether we take clients or not.

And if that’s not enough, there’s the work APG does behind the scenes with the APG Advocacy Committee, working with the broader genealogical community on records access and other issues.

Except perhaps for those few with inherited wealth, genealogists in general have fixed budgets. We have to give a little here to get a little there.

And every year it’s a struggle to decide what societies to join, what organizations to support.

But here’s one where I have no hesitation about paying my dues in order to get the member benefits.

My take: APG is worth every penny.

Even when they add up to dimes. Or dollars.

Posted in General | 2 Comments

Next in an occasional series on copyright

We have all been there, done that, those of us who grew up in the United States.

On a day appointed, with black eyes, or braces, or missing front teeth, or hair that won’t behave, or the shirt our mothers detested, or an attitude that couldn’t be repressed, we have sat there on those chairs.

Glaring, staring, sometimes even smiling.

yearbookAnd had our pictures taken for the yearbook.

Only to find, all these years later, that somebody wants to digitize those yearbooks and put them on the internet.

Reader Gary Matz recognizes the genealogical value of yearbooks: any time you nail somebody’s feet to the floor at a particular time and place, it’s a good thing. And yearbooks often offer details about the person’s activities and interests that can’t be found anywhere else.

But when the genealogical library he works with is asked to copy a yearbook from a school or a college, he worries about copyright.

He wonders first if it’s an issue at all. “Since the public schools and colleges are taxpayer supported, can they have copyright or license rights on something they publish?” he asks. “Would private schools and colleges have rights?”

And if it is an issue, what does the library need to know?

As always, The Legal Genealogist offers kudos to Gary for realizing there could be copyright issues here. It’s an issue all too often overlooked. And the fact is, he’s right to be concerned.

First, let’s deal with the question of whether schools can have a copyright.

Simple one word answer: yes.

Doesn’t matter if they’re public or private, doesn’t matter if they get (or got) tax dollars. There’s no provision in the copyright law that says you do or don’t get copyright based on your status as a public entity.

The only provision anywhere in the law that carves out a whole category is in §105 of the copyright statute: “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”1

Under that section, any work created by an employee of the United States Government as part of his or her official duties for the government isn’t copyrighted. Note that doesn’t apply to state governments or county governments or — ahem — local school boards or college alumni associations.

So we have to start with the notion that yearbooks are — or were — copyrighted. And that means finding out, first and foremost, if they’re still copyrighted today.

And that’s not always so easy. Copyright law has changed from time to time and there are different rules that apply depending on when the yearbook was published. Let’s take a look at the key categories that are likely to apply to yearbooks published far enough back to have genealogical value:2

Publication Date


Copyright Term
Before 1923 None In the public domain
1923 – 1977 No copyright notice. In the public domain
1923 – 1963 There was a copyright notice but it was not renewed as required after 28 years. (Only a few publishers or authors ever renewed.) In the public domain
1923 – 1963 There was a copyright notice and the copyright was renewed. 95 years after publication date
1964 – 1977 There was a copyright notice. 95 years after publication date

And that’s the easy part. It gets more complicated after 1977, with all kinds of “if this-then that” situations, until you finally get to the point where copyright notice isn’t at issue any more and everything is automatically copyright protected. There’s a terrific chart with just about every possible combination of “if this-then that” situations by Peter B. Hirtle of Cornell University that we should all have bookmarked by now. It’s here: “Copyright Term and the Public Domain in the United States.”

So when Gary asks if he should consult with the schools involved before copying a yearbook — and if we’re sitting out there thinking about putting our old yearbooks on our websites — part of the answer is in when it was published and whether it had the copyright notice required at the time. If it clearly is no longer copyright-protected, if it ever was protected, then the only reason to consult is courtesy, rather than law.

But if it isn’t clear that the yearbook is out of copyright, then consulting with the institution and its legal department is a really good idea. Because if it is still copyrighted, figuring out who owns the copyright may be harder than it seems.

You see, the usual rule is that the creator of a work owns the copyright.3 Easy enough: the school published it, right?

Not so fast.

There was a photographer, perhaps a photo studio, that took the individual pictures of the students, wasn’t there? Unless there was a contract between the photographer or the studio and the school, making it what’s called a work for hire, the copyright to those photos belongs to the photographer, not the school.4

And there were students who took some of the photos, of the student activities and clubs and sports events, weren’t there? Guess what? Same problem about ownership of the copyrights to those pictures.

All the school might have, depending on its arrangements with all the contributors, is what’s called a compilation copyright, and if so:

The copyright in a compilation of data extends only to the selection, coordination or arrangement of the materials or data, but not to the data itself. In the case of a collective work containing “preexisting works” — works that were previously published, previously registered, or in the public domain — the registration will only extend to the selection, coordination or arrangement of those works, not to the preexisting works themselves. If the works included in a collective work were not preexisting—not previously published, registered, or in the public domain or owned by a third part y— the registration may extend to those works in which the author of the collective work owns or has obtained all rights.5

In short, there are a lot of potential copyright problems in copying and republishing yearbooks. Consulting with a professional whenever the yearbook even possibly could still be in copyright is the only safe way to go.

We’ll leave to another day the pesky issue of what happens when one of those students doesn’t want that picture republished on the web…


  1. 17 U.S.C. §105.
  2. Information for table drawn from Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center ( : accessed 23 Mar 2014).
  3. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 ( : accessed 19 Mar 2014).
  4. See Judy G. Russell, “Copyright and the genealogy report,” The Legal Genealogist, posted 20 Nov 2013 ( : accessed 23 Mar 2014).
  5. U.S. Copyright Office, Circular 14: Copyright in Derivative Works and Compilations, PDF version at p. 2 ( : accessed 23 Mar 2014).
Posted in Copyright | 24 Comments

The Wright Battles connection

Poor little mitochondrial DNA (mtDNA). The red-headed foster stepchild of the DNA testing world.

mtDNA.ChartNowhere near as easy and obvious a genealogical tool as YDNA.

Nowhere near as glamorous and enthusiasm-gathering as autosomal DNA.

So often left sitting in the corner, waiting for somebody to ask her to dance.

And, this morning, The Legal Genealogist again asks her to dance.

And I’m hoping against hope that — this time — she and I find somebody to dance with.

Here’s the problem.

My third great grandmother in one line was Margaret Battles, who married Daniel Shew sometime before 1849, most likely in Cherokee County, Alabama. There’s no record of their marriage; the Cherokee County courthouse burned twice, in 1882 and 1895.1 They had one child, William, by the 1850 census2 and two more — Gilford and Martha Louise — by 1860, when Margaret appeared as head of household on the Cherokee County census, apparently a widow.3

We’re pretty sure of Margaret’s maiden name. It comes to us from two sources: oral history passed down to Eula’s daughter Opal;4 and the death certificate of her son William.5

And there was only one Battles family in Cherokee County, Alabama, at any time that could have included Margaret, and that’s the family of William Battles, who was enumerated in Cherokee County in 1840,6 1850,7 1860,8 and 1870.9

If I can make that line stick, I can add another documented Revolutionary War patriot to my tree: William’s father was William Noel Battles, who served in the 10th Virginia Regiment.10

But DNA testing in this case to confirm Margaret’s parents isn’t so easy.

YDNA won’t work here at all, no matter what Battles I pick. That, remember, is the kind of DNA that only men have, that’s passed almost without change from generation to generation, from father to son to son.11 You can see right away why that’s not going to help one bit:


The fact that Margaret would be William Noel’s granddaughter and William’s daughter breaks the YDNA chain.

Autosomal DNA testing — looking for the kind of DNA that’s passed down by both parents, jumbled up from generation to generation in a random pattern12 — hasn’t given us any definitive answer so far. Though we have matches, isolating the match to the Battles line is tough because we’re a bit far removed from our Battles ancestors for a strong autosomal link. We’re still working on that and hoping to find a Battles line or two that’s had long generations so the DNA won’t have gotten so jumbled passing down the line.

So one thing I’ve looked at is mtDNA — the type we all have that’s passed down from a mother to all of her children but that only her daughters pass on.13 That seemed to offer the most promise since, extending this line on down, Margaret’s only daughter was my second great grandmother Martha Louise; Martha Louise’s oldest daughter was my great grandmother Eula (Baird) Robertson, born in Cherokee County;14 Eula’s oldest daughter was my grandmother Opal (Robertson) Cottrell; my mother was Opal’s third (and second surviving) daughter; and I am my mother’s second daughter. That makes me a perfect direct-female-line descendant of whoever my fourth great grandmother was — my mtDNA (haplogroup H3) is the same as hers was, as it’s passed with essentially no changes from mother to daughter to daughter over the generations.

One hitch. It isn’t clear who Margaret’s mother was. William was married twice. His first marriage, to Kiziah Wright, resulted in a messy suit she brought against him for divorce that was finally dismissed in 1829, apparently when Kiziah died.15 His second wife was Ann Jacobs. They were married on Christmas Day 1829, and showed up on the 1830 census with — count ‘em — five children.16 One of whom, I do believe, and born most likely before that December 1829 marriage, was Margaret.

So all I need — all! — is one direct-female-line descendant of Ann to test.

And I can’t find one.17

All of Ann’s known daughters were married and out of the house before those Cherokee County courthouse fires. Tracing them forward may not be impossible, but it sure isn’t happening yet — no genealogist-descendants of Ann’s daughters stepping forward to help, either.

And then another likely Battles cousin contacted me. She descends from another of William Noel Battles’ sons, Samuel Battles. We’re too far distant to match in our autosomal DNA, but she reminded me that — duh! — there’s another whole connection I have overlooked. One that won’t help me with Margaret’s father, but it sure can help figure out which of William’s wives could have been her mother.

The chart above? That’s looking at the Battles side: William Noel and his wife Elizabeth Hopper as the original couple, William and Samuel as their sons. And neither YDNA nor mtDNA is going to work there; YDNA because I descend from a daughter, not a son; mtDNA because it would be the mtDNA of the sons’ wives that was passed on, not the mtDNA of the sons.

And therein lies a possible answer.

Because those two sons of William Noel Battles — my William and her Samuel — married sisters. William’s wife Kiziah was the sister of Samuel’s wife Nancy — both the daughters of Francis and Lucy Wright of Georgia.

And if we start with their parents, we get an entirely different picture:


It would be the mtDNA of Kiziah and Nancy’s mother passed to Kiziah and Nancy and then on down the generations. Any direct-female-line descendant of Nancy will match any direct-female-line descendant of Kiziah. Any mismatch would eliminate Kiziah as a candidate to be Margaret’s mother.

And … sigh … the Samuel Battles family didn’t live in twice-burned-courthouse Cherokee County. That family was in nearby not-even-one-courthouse-fire St. Clair County.

Not to mention the fact that I have a genealogist-descendant stepping forward to help.

Maybe this time I’ve picked the Wright Battles.

Wish me luck…


  1. Alabama Courthouses Destroyed by Fire,” Alabama Department of Archives and History ( : accessed 22 Mar 2014).
  2. 1850 U.S. census, Cherokee County, Alabama, population schedule, 27th District, p. 136 (back) (stamped), dwelling 1055, family 1055, Danl Shew household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M432, roll 3.
  3. 1860 U.S. census, Cherokee County, Alabama, population schedule, p. 315 (stamped), dwelling 829, family 829, Margaret Shoe household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M653, roll 5.
  4. Interview with Opal Robertson Cottrell (Kents Store, VA), by granddaughter Bobette Richardson, 1980s; copy of notes privately held by Judy G. Russell (also a granddaughter).
  5. Texas Department of Health, death certif. no. 10077 (1927), W.W. Shew (10 Mar 1927); Bureau of Vital Statistics, Austin.
  6. 1840 U.S. census of Cherokee County, AL; 1840 U.S. census, Cherokee County, Alabama, population schedule, p. 116 (stamped), line 17, Wm Battles household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M704, roll 3.
  7. 1850 U.S. census, Cherokee Co., Ala., pop. sched., 27th Dist., p. 136 (stamped), dwell. 1052, fam. 1052, Wm Battles household.
  8. 1860 U.S. census, Cherokee Co., Ala., pop. sched., p. 314-315 (stamped), dwell./fam. 825, Wm Battles household.
  9. 1870 U.S. census, Cherokee Co., Ala., pop. sched., Leesburg P.O., p. 268(B) (stamped), dwell. 26, fam. 25, W Battles household.
  10. Noel Battles, no. S.12960 (Pvt., Capt. Shelton’s Company, 10th Va. Reg.); Revolutionary War Pensions and Bounty-Land Warrant Application Files, microfilm publication M804, 2670 rolls (Washington, D.C. : National Archives and Records Service, 1974); digital images, Fold3 ( : accessed 22 Mar 2014).
  11. See ISOGG Wiki (, “Y chromosome DNA tests,” rev. 5 Mar 2014.
  12. ISOGG Wiki (, “Autosomal DNA,” rev. 1 Feb 2014.
  13. See ISOGG Wiki (, “Mitochondrial DNA tests,” rev. 5 Mar 2014.
  14. See 1870 U.S. census, Cherokee County, Alabama, population schedule, Leesburg Post Office, p. 268(A), dwelling/family 15, Margaret Battles in Baird household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M593, roll 7; imaged from FHL microfilm 545506.
  15. Transcription, Records of the Blount County Circuit Court, 1824-1829; Circuit Court Clerk’s Office, Oneonta, Ala.; transcribed by Bobbie Ferguson; copy provided to J. Russell and held in files.
  16. 1830 U.S. census, St. Clair County, Alabama, p. 252 (stamped), line 24, William Battles 2nd household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M19, roll 4.
  17. If you ARE a direct-female-line descendant of Ann Jacobs, let me know. There’s an mtDNA test kit, entirely at my expense, just waiting for you…
Posted in DNA | 24 Comments

Faces of family

Raised by the women who are stronger than you know
A patchwork quilt of memory only women could have sewn
The threads were stitched by family hands, protected from the moth
By your mother and her mother, the weavers of your cloth.

– Mary Chapin Carpenter, Family Hands

March is Women’s History Month. And my family history is chock full of amazing women who joined our family … or who left it behind … in March. We celebrate the birthdays, we grieve the losses, and we just enjoy the faces.

Here they are, once again, … the weavers of our cloth.


My great grandmother
Eula Baird Livingston Robertson
born AL 24 Oct 1869, died VA 13 Mar 1954


My grandmother
Opal Eileen Robertson Cottrell
born TX 21 Aug 1898, died VA 15 Mar 1995


My mother
Hazel Irene Cottrell Geissler
born TX 21 Mar 1926, died VA 23 Apr 1999


My sister Diana (R), born CO 13 March,
and me (L), born CO 19 Mar, some years ago


My great niece Addyson
born VA 14 March much more recently

Posted in My family | 6 Comments

Nothing to do with the law

So The Legal Genealogist was poking around in some old records again and came across an estate inventory listing a gorget.

A gorget.

Sure, I have one of those in my … kitchen? My closet? My bathroom?

gorgetSure I do.

A gorget is…

A gorget is…

What in the world is a gorget?

So since I had to look it up, maybe you don’t know what it is either.

So I’ll tell you.

I looked it up first in the law dictionaries and, since you can see the image here, with George Washington depicted as a colonel in the Virginia Regiment in the French and Indian War, you probably aren’t surprised that it wasn’t there.

Which meant, of course, I needed to consult with that famous expert and guru of all things knowable…

Dr. Google.

Of the top two choices — both from Wikipedia, “gorget” and “gorget (bird)” — I had a fairly good idea that the item referred to in the estate inventory wasn’t likely to be a reference to something to do with a bird.1

So I looked at the other entry instead, and discovered that:

A gorget, from the French gorge meaning throat, was originally a band of linen wrapped around a woman’s neck and head in the medieval period, or the lower part of a simple chaperon hood. The term subsequently described a steel or leather collar designed to protect the throat, a set of pieces of plate armour, or a single piece of plate armour hanging from the neck and covering the throat and chest. Later, particularly from the 18th century onwards, the gorget became primarily ornamental, serving only as a symbolic accessory on military uniforms, a use which has survived to the modern day in some armies.2

And one of the images illustrating this entry was the one you see part of here.

Fair enough.

Except the inventory was for a lady who’d never married.

I mean, if it had been a widow of a military man, maybe she had kept this as a memento of her late husband. And it is still possible that her father or a brother had been the original owner.

But it seemed to me that if the term started out as something for a woman, it might still mean something a woman a woman might wear.

So I kept looking but kept coming up with things for the guys, and usually armor for the throat.3

Except in one reference book. One I recommend to anybody dealing with records from days gone by when people didn’t alsways use words the way we do today.

In Paul Drake’s What Did They Mean By That?, you’ll find this alternative meaning to the word gorget: “a decorative large pendant, often of some symbolism or religious meaning … e.g., ‘Allison worse a small Indian gorget that Evan had found’…”4

That’s better.


Try that out the next time someone admires the pendant you’re wearing…


Image: Charles Willson Peale (1741-1827), Portrait of George Washington, via Wikimedia Commons

  1. Google search results, search term “gorget,” ( : searched 20 Mar 2014).
  2. Wikipedia (, “gorget,” rev. 12 Mar 2014.
  3. See for example Merriam-Webster Online Dictionary ( : accessed 20 Mar 2014), “gorget.”
  4. Paul Drake, What Did They Mean By That? (Westminster, Md. : Heritage Books, 2000, repub. 2008), 138.
Posted in Resources | 6 Comments

Next in an occasional series on copyright

Reader Phil Murray has in his possession two interesting handwritten documents that he wants to preserve for the future.

The first is a handwritten copy of a story of one family’s experience during the American Revolution. It had been copied by a member of that family from a newspaper article printed in South Carolina in 1853, and lovingly preserved tucked inside the covers of the family’s Bible.

bookThe second is a handwritten book of medicinal remedies — recipes for drugs and elixirs — kept by another family member, one of the first settlers of a Georgia county, a druggist by trade. As with “most of the early druggist in his days, (this man) concocted all types of medicinal remedies — some quite interesting, and some involving the use of cocaine in their mixture,” Phil wrote. Created sometime around the 1830s, “This book was never published.”

Both of these documents came into Phil’s hands directly from descendants of the family involved. He wants to make sure that they can be protected and preserved for researchers within and without the family in the future.

One thing he thought of to secure some protection for them was copyright — raising the immediate question: “Is this material copyrightable?”

First off, The Legal Genealogist offers Phil hearty congratulations for wishing to preserve and secure future use of these documents. And Phil deserves even more hearty congratulations for thinking about the copyright implications in the first place.

Donated materials aren’t any different from any other types of materials in that critical respect: there are copyright considerations, and any archives or library that accepts donations is going to want to work with the donor to resolve any copyright concerns that might exist.

The key concepts underlying copyright in donated works are set out on the website of Society of American Archivists:

Assignment of copyright is often complex and you should work with the repository staff to clarify issues of copyright ownership. Generally, copyright belongs to the creator of writings and other original material (such as photos and music) but can be legally transferred to heirs or others. In addition, ownership of copyright is separate from ownership of the physical item (the letter or photo). Archivists often ask donors to donate not only the physical papers but also any copyright in them that the donor might own. This request makes it easier for researchers to use portions of the materials in their work.1

Let’s recap here:

1. Ownership of the copyright belonged to the creator of the item2 but it can be transferred from the creator to another person by a written assignment of rights or by law through inheritance.3

2. Just because you own the item — a book or a manuscript — doesn’t mean you own the 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.”4

And one more not specifically mentioned in the Society of American Archivists’ paragraph:

3. Copyright protection in the United States is time-limited. Published and unpublished works are treated differently, but no matter what the category of item is, no matter when it was created, every type of copyrightable work in the Unites States is only protected by copyright for a specific term of years.5

Putting all of these concepts together, the answer to Phil’s question for both of these documents is simple:

No. Today, these documents are not copyrightable. Both are in the public domain:

The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.6

Here’s why.

The original story of the family’s experiences in the American Revolution was published in the United States — in that South Carolina newspaper — in 1853. And under American copyright law, “all works published in the United States before January 1, 1923, are in the public domain.”7

The fact that it was copied in the handwriting of a descendant and the handwritten copy is what’s at issue doesn’t change the analysis. It’s the original publication date of the original work that matters: you can’t extend how long a copyright lasts by making a new copy of the original work.8

The book of medicinal recipes was never published, so it has to be analyzed in terms of the rules for unpublished works. And, under American copyright law, the maximum term of a copyright for a work like this one, created before 1978 and never published, is now the lifetime of the creator plus 70 years.9 And unless the author of this particular work — written in the early 1800s — is some kind of superhuman, there’s no question he’s been dead far longer than 70 years.

Now this isn’t true everywhere. Remember that copyright law varies from country to country. So — just as one example — if you’re sitting there in Hobart this morning, Australian law would require a different answer: “Normal copyright law applies to published materials, however unpublished rare and unique material remains in copyright forever, or until it is published, when the ‘copyright countdown’ can begin.”10 Or if, as another example, you’re sitting there in London this morning, “The 1988 Copyright, Designs and Patents Act (as amended) states that unpublished literary and artistic works remain in copyright in the UK until at least 31 December 2039. Therefore important parts of the (British Library’s) collection remain in copyright, including very old manuscripts.”11

But if you’re sitting there this morning anywhere where the Stars and Stripes fly overhead, these old unpublished materials are now, officially, in the public domain.

So we don’t even have to get into the question of whether Phil has, or could acquire, ownership of the copyrights here. There simply aren’t any copyrights — and no copyrightable work — involved at all.

He and the archives he chooses are and will be the caretakers of the physical items only: there are no other legal rights to worry about.


  1. Copyright paragraph, “Donating Your Personal or Family Records to a Repository,” Society of American Archivists ( : accessed 19 Mar 2014).
  2. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 ( : accessed 19 Mar 2014.)
  3. Ibid., PDF at p. 6.
  4. Ibid., PDF at p. 2.
  5. For a great chart showing the time periods of copyrights covering items created over time, see Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Information Center ( : accessed 19 Mar 2014).
  6. Where is the public domain?,” Frequently Asked Questions: Definitions, U.S. Copyright Office ( : accessed 19 Mar 2014).
  7. U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at p. 2 ( : accessed 19 Mar 2014).
  8. See generally Judy G. Russell, “Copyright and the republished work,” The Legal Genealogist, posted 25 Feb 2014 ( : accessed 19 Mar 2014).
  9. U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at p. 1.
  10. Rights and the Manuscripts Collection,” National Library of Australia ( : accessed 19 Mar 2014).
  11. Access and Reuse Guidance Notes for the Catalogue of Illuminated Manuscripts,” Catalogue of Illuminated Manuscripts, British Library ( accessed 19 Mar 2014).
Posted in Copyright | 8 Comments