The law and ethics of donating family materials

Two reader questions have just hit The Legal Genealogist‘s emailbox presenting opposite sides of the issue when it comes to donating family materials and photos to libraries, archives or other repositories.

opposites

Reader Sharon was the recipient of letters, written by others, sent to her more than 50 years ago. She isn’t planning on publishing them, but notes that they’re interesting and it’d be “a shame to lose this history.” Some of the letter writers are still living; none has been deceased 70 years yet. So Sharon wants to know if she’s the legal owner of the letters and has the legal right to donate them to a university or archives. She notes, wryly: “I won’t be around 70 years after the person(s) pass away and my descendants certainly won’t likely be keeping them for 70 years.”

Reader Catherine has the exact opposite problem. She bitterly opposes the plan of a cousin to donate papers and photographs to a repository in the cousin’s state that include Catherine’s childhood photos taken by her parents (not the cousin’s) and, she suspects, letters from her parents as well. The photos don’t include the cousin or the cousin’s immediate family members at all. She notes: “I don’t want strangers pawing through my family’s photographs (or personal, private, unpublished letters).” The cousin won’t back down on the plan, and Catherine wants to know what her options are.

Ouch.

Talk about a clash of values.

And it’s one that really is confusing.

Here’s why:

The person to whom the letters and photographs were sent is in fact the legal owner of those letters and those photographs and has the right to keep them, give them to another person, or donate them to a library, archive or other repository. On a superficial basis, that takes care of both Sharon’s question and Catherine’s question.

But…

That person doesn’t own the copyright on those letters and photographs. And that gives Catherine some legal power here — and poses an ethical (and practical) issue for Sharon.

Let’s go back over the basics here.

First and foremost, we need to remember what’s eligible for copyright protection and what isn’t. Copyright law protects “original works of authorship fixed in any tangible medium of expression.”1 That definition doesn’t include “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”2

So it’s clear (or it should be) that, under the law, these items — these letters and photographs — are covered by existing copyrights. Because they were “original works of authorship fixed in any tangible medium of expression,”3 the letter writers and photographers had full copyright protection on them and copyright in unpublished works lasts for 70 years after the death of the creator.4 And in all of these cases, the letter writers and photographers have not been deceased for 70 years.

Second, we need to understand that owning specific physical items — those letters and photographs — is entirely separate and apart from owning any copyright there may be in the items. The U.S. Copyright Office emphasizes that: “Mere ownership of a copy or phonorecord that embodies a work does not give the owner of
that copy or phonorecord the ownership of the copyright in the work.”5

That distinction — between owning the thing and owning the copyright covering the thing — comes right out of federal copyright law:

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.6

In other words, Sharon is the legal owner of the physical copies of the letters sent to her. She has a legal right to donate them to any archive she chooses. Catherine’s cousin is now the legal owner of the physical copies of whatever family letters and photographs the cousin now has, and has a legal right to donate them to an archive.

But neither Sharon nor Catherine’s cousin owns the copyright to those items. Neither of them can give the archive more rights than they themselves have.

And that poses an ethical and practical issue for Sharon — and an opportunity for Catherine to be heard on her objections to the cousin’s plan.

Ethically, Sharon should disclose to the archive that she is only donating the physical copies of the letters she received and not the copyrights to those letters. The practical concern is that may very well stop the donation dead in its tracks. In many cases, an archive will require an assignment of rights (including copyright) before accepting materials for donation.

Sharon’s solution: get permission from her correspondents, in writing. Whatever archive she’s considering will likely have a form for the letter-writers to sign. Or — an option that’s frankly less likely — she may work out with the archive to accept the letters for safekeeping, knowing they can’t be used free of copyright constraints for decades to come.

Catherine, on the other hand, can raise whatever copyright interest she herself has as the daughter of the photographers and letter-writers in her case, since copyrights are personal property that can be inherited.7 She will of course need to consult with legal counsel of her own to determine just what rights she has but can then raise those rights with the cousin and even directly with the archive to which the cousin is planning to donate the copyrighted materials.

The cousin’s solution, if the cousin wanted one, would be to work out an agreement with Catherine to donate the materials with restrictions on their use for a time — even for the life of the copyright.

Great questions, from two very different viewpoints, that underscore the distinction between ownership of the thing and ownership of the copyright to the thing.

And more importantly, the questions help all of us focus our attention on the balancing act we as genealogists always have between wanting to share materials widely and ensure that they’re not discarded or lost on one hand — and the rights and privacy interests of others on the other.

The law and ethics of donating family materials can be very different — just because it’s legal doesn’t mean it’s right.


Cite/link to this post: Judy G. Russell, “Giving it away,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 21 May 2020).

SOURCES

  1. 17 U.S.C. § 102(a).
  2. U.S. Copyright Office, “Copyright in General: What does copyright protect?,” Copyright.gov (https://www.copyright.gov : accessed 21 May 2020).
  3. 17 U.S.C. § 102(a).
  4. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 4 (https://www.copyright.gov : accessed 21 May 2020).
  5. Ibid., PDF version at p. 3.
  6. 17 U.S.C. §202.
  7. “Ownership of a copyright . . . may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.” 17 U.S.C. § 202(d)(1).
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