The limits on copyright
Reader Dennis Yancey asks a great copyright question.
“If a person transcribes the family record data in a Family Bible,” he asks, “can they claim copyright on this transcription?” And, he continues, “Is the answer to this pretty much the same for any transcription of any document of genealogical value?”
The Legal Genealogist loves questions with easy answers: No and yes, in that order.
Let’s break this down.
Copyright laws around the world are pretty much the same in one critical respect–there’s one fundamental thing that has to be true in order to get a copyright.
The material being copyrighted has to be the original work of the person (or corporate entity that owns the rights to that person’s work) applying for copyright protection.
One of the very first sections of the United States law dealing with copyrights puts it this way: “Copyright protection subsists … in original works of authorship …”1
As explained by the U.S. Supreme Court, originality is “the touchstone of copyright protection today… the very ‘premise of copyright law’ (and) ‘constitutionally mandated’” before copyright’s benefits will be extended. It is, the Court said, the “bedrock principle of copyright” that the work “must be original to the author,” that is, “independently created by the author (as opposed to copied from other works)…” In the copyright context, “originality requires independent creation.”2
So the bottom line here is that someone can only get a copyright where “the author created the work without copying from other works.”3
By definition, transcribing that Bible record is copying from other works. No copyright possible there.
So, easy answer: no, the person transcribing that family data from a Bible can’t claim copyright. That person didn’t create the original work. And yes, that’s going to be the answer for any transcription of any document of genealogical value.
Now translations are different. There’s some discretion and judgment involved in translating a work from one language to another, in word choice and interpretation of nuance or colloquial terms. So you can get a copyright on a translation under both international law4 and United States law.5 The new copyright is limited to the new material, and, if the original work is still under copyright, the translation has to authorized by the owner of the original copyright.6
But transcriptions? No. Not original, so no copyright.
Great question, Dennis!
Cite/link to this post: Judy G. Russell, “Originality counts,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 5 July 2019).
SOURCES
- 17 U.S.C. §102(a), “Subject matter of copyright: In general.” ↩
- Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345-347 (1991), emphasis added. ↩
- See §§308-309, Compendium of U.S. Copyright Office Practices, 3d. ed. (2017), U.S. Copyright Office (https://www.copyright.gov/ : accessed 5 July 2019). ↩
- See ¶ 3, Article 2, Berne Convention for the Protection of Literary and Artistic Works, WIPO-Administered Treaties, World Intellectual Property Organization (https://www.wipo.int/treaties/ : accessed 5 July 2019). ↩
- See §507.1, “What is a Derivative Work?,” Compendium of U.S. Copyright Office Practices. ↩
- See ibid., §507.2 and §609.1. ↩
Hmm. I get it. I truly do. But that would also seem to mean that if I transcribe an old document (and those who have done so know how much work can go into that sometimes), I not only cannot copyright my transcription, I also cannot request that anyone who downloads it or uses it give me credit for transcribing it, right?
Credit is different. As genealogists, we cite our sources, and anyone using your transcription should cite you as the source of the transcription! This is an ethical constraints, not a legal constraint, but…
Thanks for the clarifications (copyright/credit, ethical/legal). Sometimes I get ahead of myself.
I agree if we’re talking about a single transcription of a single document with no other material. But… And, if one added a suggested citation to the transcription, that would be original, right? And, if one performed extensive image processing to reveal badly faded text and then included the processed image with the transcription, that would be original, right? And, One could copyright a compilation of transcriptions, right? I suggest that the answer is not quite as simple as you presented. In no case, does one get to the original text, but originality can be be imputed to added value and the expression of that added value can be copyrighted.
Under Feist, a compilation could be copyrightable only to the extent that there was some discretion and creativity shown in the selection of materials, and of course to the new materials added. It’s the same thing as reprinting an old book now out of copyright. You can copyright it, but the only thing covered by the copyright is your new introduction and any added text. The original was — and is — not protected.