It’s the kind of information a genealogist may spend hours or days or even weeks ferreting out.
Hunting through courthouses and archival back rooms for county records that don’t exist that far back in time.
Trudging through court records that don’t even contain hints of marital status.
Sifting through a whole raft of utterly inaccurate family trees for clues.
All for the tiniest hint that might lead to the fact we want to prove — that Peter McCune married Christiana O’Brien in Monongalia County, Virginia, in January 1781.1
And once all the work is done and the effort put in, does the genealogist who uncovers the proof have the right to say: “this is my fact, I uncovered it, I can copyright it so nobody else can use it without my permission”?
Nope. Not in the United States.
Because the fact that Peter McCune married Christiana O’Brien in Monongalia County, Virginia, in January 1781 is just that.
And, under United States law, facts can’t be locked up under a copyright.
On that point, the U.S. Copyright Office couldn’t be clearer: “Copyright does not protect facts, … although it may protect the way (they) are expressed.”2
The Copyright Office goes on to explain:
Originality is “the bedrock principle of copyright” and “the very premise of copyright law.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991) (citation omitted). “To qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author” and it must possess “at least some minimal degree of creativity.” Id. at 345 (citations omitted). …
Facts are not copyrightable and cannot be registered with the U.S. Copyright Office. “No one may claim originality as to facts … because facts do not owe their origin to an act of authorship.” Feist, 499 U.S. at 347 (internal citation omitted). A person who finds and records a particular fact does not create that fact; he or she merely discovers its existence. As a result, facts “are never original” and Section 102(b) of the Copyright Act “is universally understood to prohibit any copyright in facts.” Id. at 356. “[This] is true of all facts—scientific, historical, biographical, and news of the day.” Id. at 348.
For the same reason, theories, predictions, or conclusions that are asserted to be facts are uncopyrightable, even if the assertion of fact is erroneous or incorrect. See, e.g., Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 978-79 (2d Cir. 1980); Nash v. CBS, Inc., 899 F.2d 1537, 1541 (7th Cir. 1990).3
Now the way a fact is expressed — that can be copyrightable. Take our factual assertion about Peter and Christiana and think about it. There aren’t very many ways to say the fact. Peter married Christiana at a place and time. Christiana married Peter at a place and time. At a place and time, Peter and Christiana were married. It’s all the same fact, isn’t it?
And not copyrightable.
Now change it to this:
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. … But for Peter McCune and his child bride Christiana O’Brien, the dangers were for another day. This was their day, to join together, to celebrate…4
See the difference? That’s a whole different story, isn’t it?
So don’t go thinking that the Begats-type entries in our family trees are protected by the law. Names, dates, places — they’re facts, and not copyrightable in the United States no matter how much effort we put into finding the facts.
Only when we go beyond the facts into a creative expression will copyright come into play.
Cite/link to this post: Judy G. Russell, “Factually speaking…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 6 Jan 2021).
- See, generally, Christiana McCune, widow’s pension application no. W.7412, for service of Peter McCune (Pvt., Col. Gibson’s (9th 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). ↩
- U.S. Copyright Office, “FAQs: What Does Copyright Protect?,” Copyright.gov (https://www.copyright.gov : accessed 6 Jan 2021). ↩
- U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §§303, 313.3(D) (3d ed. : 2017); PDF online, Copyright.gov (https://www.copyright.gov : accessed 6 Jan 2021). ↩
- Judy G. Russell, Frontiersmen, Fighters and Farmers: The McCunes of Western Virginia (n.p. : p.p., 2012). ↩