Copyright requires more
It’s a constant refrain in the world of using other people’s content: “But I gave the author / photographer / artist credit!”
The Legal Genealogist is here to remind us all: that ain’t enough if we’re using materials that are copyright-protected.
I have no idea where the notion came from that we’re free to use anything we want of other people’s work as long as we give them credit for the work, but it’s certainly a pervasive misconception. Operative word there: misconception. It’s not so.
Copyright, in a nutshell, is a bundle of exclusive rights the law gives to the creator of original works. Writers, photographers, artists and others who create so much of the content we’d like to use get a period of time in which they (and then their heirs) are the only ones who get to say, for example, if the work can be copied, and by whom, and under what conditions, or if it can be shared with others, and by whom, and under what conditions.1
Nowhere in the law does it say “but it’s perfectly okay to copy and share it if you give the creator of the work credit.”
Now… don’t get me wrong. As genealogists, we absolutely always want to give credit when we use the work of others. It’s part and parcel of the Genealogical Proof Standard that we provide “complete, accurate citations to the source or sources of each information item” we rely on.2 And our field’s ethics codes require it as well.3
When the materials we’re using are not copyright-protected, then credit is all that’s needed. Materials in the public domain — meaning materials that either never were copyrighted in the first place or where the copyright has expired — “may be used freely without the permission of the former copyright owner.”4
But it’s not enough to give credit when we’re using materials that are copyright-protected. Copyright requires more. And the more it usually requires is permission — in the words of the law, a license.
Sometimes, a creator will grant a license on a blanket basis. That’s the way Creative Commons licenses work: as long as we stay within the terms of the license and respect any conditions attached to the license, such as no commercial use or no derivatives, then we don’t have to get the specific permission of the copyright owner.5
In other cases, we’re going to have to ask specifically for the permission we want or need, whether it’s permission to use a photo from Find A Grave in a presentation or permission to copy or republish a blog post from this blog.
Giving the photographer or the blog writer credit will avoid the problem of plagiarism — presenting someone else’s work as if it’s our own6 — but it won’t do a thing to protect us from a copyright infringement action.
Bottom line: credit doesn’t cut it.
If the work we want to use is copyright-protected, our safest bet is to get the creator’s permission to use it.
Cite/link to this post: Judy G. Russell, “Credit doesn’t cut it,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 13 Aug 2021).
SOURCES
- See 17 U.S.C. §106, “Exclusive rights in copyrighted works.” See also “What is Copyright?,” U.S. Copyright Office (https://www.copyright.gov/ : accessed 13 Aug 2021). ↩
- Board for Certification of Genealogists, Genealogy Standards, 2d ed. rev. (Nashville, TN: Ancestry.com, 2021), 1. ↩
- See e.g. ibid., “Genealogist’s Code of Ethics,” at 50. ↩
- See generally “Definitions: Where is the public domain?,” U.S. Copyright Office (https://www.copyright.gov/ : accessed 13 Aug 2021). ↩
- See generally “About CC Licenses,” CreativeCommons.org (https://creativecommons.org/ : accessed 13 Aug 2021). ↩
- See generally Elizabeth Shown Mills, “QuickLesson 15: Plagiarism—Five ‘Copywrongs’ of Historical Writing,” EvidenceExplained.com ( accessed 13 Aug 2021). ↩
Thanks for the reminder, as always. Putting this in the context of the license granted to Ancestry, if I am the first one to post a work (photograph, document, book excerpt) that is copy-righted by another, or provided by someone outside of Ancestry, I should receive specific permission before posting. However, if someone else has posted a work already on Ancestry, I am not restricted from using it on Ancestry, but cannot, or at least should not, create a separate publication utilizing that work?
Copyright liability is personal and individual. If person A posts something online that’s copyrighted and doesn’t have permission, you can’t simply use it just because the first person violated copyright. In the vast majority of cases, nobody is ever going to come after folks who reuse on their trees what person A put up and shouldn’t have. But “I just shared what he had” may well be no defense if it should ever happen.
Does “Fair Use” or “educational purposes” have any bearing on this discussion?
The fair use doctrine (see 17 USC § 107) could apply, of course. It isn’t carte blanche for educational purposes (or for research or any other purpose allowed in the statute). It’s a four-part balancing test and not a “hey I’m being fair so I can use what I want” test. Colleges and universities have lost fair use cases too.
Hi Judy,
It always amuses me when I see folks posting other people’s music on Youtube and thinking that providing a credit protects them from liability.
I suspect that the origins of this misconception may be twofold. The first is the stance taken by the academic community against plagiarism, by insisting on the citation of sources as a way to combat this problem. And the second possible reason could be the fair dealing doctrine in the UK, Canada, Australia and elsewhere, which makes it mandatory to provide a credit in order to benefit from most of the fair dealing exceptions. The fact that the other provisions of fair dealing are frequently not met, means that this practice provides little or no protection within those jurisdictions, and of course absolutely none at all in the USA unless fair use already covers the situation, in which case a credit would not be necessary.
When people see material on a daily basis taken for a tiny piece of incidental music background to a TV story, or sampled as part of a recent work, the whole idea of copyright is debased. The only redress actions they see are when large profits are made. There is also a long tradition of respecting and honoring someone’s musical or written work by referring to it in some way – maybe an indirect reference, but sometimes a tiny direct quotation.
All up, in the popular mind, if I take your work and do not profit from it, where is the harm? So surely we are allowed to do it? As you point out Judy, we are not.
I have used people’s copyrighted works only with their express permission in my family research as published. Sometimes that comes with a cost to me. Sometimes the originator generously allows use in a limited number of copies for free. But even at a cost, I could often never obtain that item any other way for the same outlay.
And the other thing asking permission does is to truly acknowledge and value the originator’s work. Otherwise how would they know?
Thank you, Judy
Does format matter? I’m thinking of the explosion in the availability of online historic newspapers, and the clips that now show up attached to memorials at Find A Grave. If a clip is from a pre-1926 newspaper it is my understanding that the words would be in the public domain and free to be posted with attribution, but what about the current scanned format? Are there ownership issues? Is it OK to clip and attach? If not, is it OK to post a transcription of an old obituary with attribution? A small cemetery at Find A Grave was recently transferred to me and I’m trying to clean up the blatant copyright violations in memorials as best I can.
(a) Anything legally published in the United States before 1926 is out of copyright. (As of 1 Jan 2022, it will be anything before 1927.)
(b) Many current newspaper websites (Newspapers.com for sure since it’s also an Ancestry property and Chronicling America from the Library of Congress) permit copying and posting clips. If the newspaper is pre-1926 at either of these, in your shoes, I would have no concerns about the terms of use of the website where the clip came from.
(c) If you aren’t sure where it was published or the terms of use of the website where the clip came from, or if it’s still potentially copyright-protected, remember that FACTS cannot be copyrighted (name of deceased, date of death, place of funeral, place of burial, names of relatives mentioned — without copying any flowery language or the way those facts were expressed). You could create a template to extract just the facts and use that instead without concern.
I have been waiting patiently to use an uncredited lineup photo from the LA Times in an article (1925) . Newspapers. com disclaimed responsibility, LA Times determined that “Unfortunately, we do not retain the rights to the image requested; due to the date of the image and the lack of attribution we cannot confirm who retains the rights to the photo.” Sure wish I could get an original copy!
(a) I assume you have tried the police department, since a line-up is very likely to have been a police photo.
(b) The photo was published in 1925. Anything legally published in the United States before 1926 is out of copyright. The newspaper image might not be very good, but it’s out of copyright and you’re free to use it. (They should also be willing to provide a better copy — for a price — since no matter who took the image it’s out of copyright,)
I have known some books by established authors and from big publishers to deal with similar cases by including a statement to the effect that “all attempts to discover the originator of this image and obtain permission for use have been fruitless”. These cases were from old images where the previous newspaper or book publisher had ceased to exist, records were not available for that institution and their usual staff photographer et al. had died without leaving someone who could be said to retain rights.
Obviously one would need to retain records of such attempts in case of challenge.
Judy, do you know of any case law on similar occurrences?
There is no legal protection for what are called orphan works in the United States. There is a licensing scheme for these works in place in the United Kingdom and the EU, but nothing in the US.
I read recently that instead of adding an image that may be copyrighted, it is ok to use the link (url) to the site where the image is shown. Just wondering your thoughts on this.
A regular link yes (such as this one to an image at the Library of Congress which, by the way, is not copyright-protected). But not an embedded link or a deep link. In other words, using technology to make the image itself appear on your website is still a form of copying, and if it’s copyright-protected could be infringement.
I would like to use an old image (black and white, ink drawing I think) in a published journal. It looks to be from the late 1800s, but there is no signature or other markings visible. Google reverse image search did not find it. Is it legally possible to use this image? Is a disclaimer about unknown source necessary? Thank you!
You’ll have to make your own risk assessment judgment on this one. There’s not enough info here to help. If you decide to use it, you should cite whatever source info you have.
Thank you very much. I was afraid that would be the case.