Missouri’s manslaughter law

So… did you watch Who Do You Think You Are? last night?

The Legal Genealogist did.

MissouriIn a room with most of the 200 genealogists attending the Genealogical Research Institute of Pittsburgh.

Where else is a place going to break into cheers when a murder is mentioned? (Records. All those wonderful juicy records.)

And where else will people be yelling that if she’d just read the whole pension file, she’d have found out much more…?

And where else will students in the inaugural session of Law School for Genealogists immediately think to themselves, while they were watching the program, that they needed to “examine the statutes to figure out what constituted ‘manslaughter’ in 1843 Missouri”?1

Because, after all, we can’t possibly begin to decide if Martha Casto was justly convicted of manslaughter or not unless we know just what the elements of the crime were.

So… Could you find the definition of manslaughter in Missouri law in 1843?

Here are some hints.

Missouri’s statutes were revised and codified at least twice around the time of Martha Casto’s murder indictment in 1843:

• They were digested by the Eighth General Assembly in 1834-35 and the Revised Statutes produced by that effort were printed at the Argus Office in St. Louis in 1835.2

• They were also revised and digested by the Thirteenth General Assembly in 1844-45 and the Revised Statutes produced by that effort were printed for the State by J.W. Dougherty in St. Louis in 1845.3

So if you find both of those, and you find the definition of first degree manslaughter there, I have two questions for you:

1. What was the definition of first degree manslaughter in 1843, when Martha Casto was convicted of that crime?

2. Do you think she was guilty of first degree manslaughter?


  1. Cari Taplin, status update, 23 July 2014, Facebook (http://www.facebook.com : accessed 24 July 2014).
  2. Revised Statutes of the State of Missouri (St. Louis : Missouri General Assembly, 1835). And no, I’m not going to tell you exactly where you can find this online. Do your homework, class.
  3. The Revised Statutes of the State of Missouri (St. Louis : Missouri General Assembly, 1845). And no, I’m not going to tell you exactly where you can find this online, either.
Posted in Court Cases, Legal definitions, Statutes | Leave a comment

Worldwide Indexing Day a success!

So the goal was to have 50,000 people indexing and arbitrating index entries over a 24-hour period. That would set a new record… not to mention getting one whale of a lot of new index entries so name searches would turn up results on FamilySearch.

And … oh my … it didn’t start well.

The site was overloaded.

Folks couldn’t log in.

Batches wouldn’t download.

Some people tried and tried for hours and didn’t manage to connect.

It definitely Did Not Look Good.

And despite all that… this graphic says it all:


We did it.

Posted in General | Leave a comment

Reminder: it’s pool day!

Today is the day.

There are only a few hours left.

WorldwideEventPosterThe Worldwide Indexing Event at FamilySearch is underway.

You can read all about it here at The Legal Genealogist, but don’t just read about it — join in the fun!

The event continues today until:

• 9:00 p.m. Atlantic Daylight Time
• 7:59:59 p.m. Eastern Daylight Time
• 6:59:59 p.m. Central Daylight Time
• 5:59:59 p.m. Mountain Daylight Time
• 4:59:59 p.m. Pacific Daylight Time
• 3:59:59 p.m. Alaska Daylight Time
• 1:59:59 p.m. Hawaii Daylight Time

There’s plenty of help available if you haven’t done indexing before — and it doesn’t take long. You can learn and still do a whole batch before the deadline to be counted.

Come on into the indexing pool.

The water’s fine!

Posted in General | 6 Comments

Talk to me, please!

Dear DNA cousins,

You know who you are.

johnny_automatic_girl_prayingYou’re the ones who’ve recently tested with 23andMe. Your results have only just come in within the last little while.

One of you is projected to be The Legal Genealogist‘s second cousin. I know you’re female, and your mitochondrial haplogroup is J1c8.

I first saw you as my match in April and, except for my genealogy buddy and first cousin Paula and my nephew, you were my closest match ever on 23andMe. So I immediately sent you an invitation to share information:

Hi! Just logged in to 23andMe tonight and see that we’re projected to be perhaps as close as second cousins! I’d love to share information and see if we can identify our common ancestors. My father was a German immigrant, my mother’s family entirely from the US south (she was born in Texas). Hope to hear from you soon!1

And I haven’t heard from you.

That was really disappointing.

Then just this past week I logged in to 23andMe and there was another match appearing for the first time in my results. This time, the system projects you — my new cousin-match — to be potentially as close as a first cousin. I know you’re also female, and your mitochondrial haplogroup is I1a1.

Once again, except for my known first cousin and my nephew, you’re now my closest DNA match at 23andMe, and I shot you off a sharing request too:

Hello, there! 23andMe is showing us as very close relatives — maybe as close as first cousins! So… since I don’t know of any first cousins who’ve decided to test, I’d love to chat and compare notes. My direct email is (removed here to keep the spammers away).2

And I haven’t heard from you either.

Now I realize that there are a lot of reasons why a match might not leap onto the keyboard to respond instantly, and five days in your case, my new potential first cousin, isn’t very long. And I’m trying very hard to be patient.

But I’m not succeeding very well.

In my world, five days is practically forever. Remember the poster of the two vultures sitting on the branch and one of them says to the other, “Patience, my ass! I’m gonna kill something!”?

That’s me.

The graphic you see here? The prayer for patience that ends with “And I want it right now!”?

That’s me.

My curiosity about both of these cousins is about to kill me.

So tell me, cousins of mine… what’s up with the no response?

And is there anything I can do about it?


I wonder what else I need to put into my contact request at 23andMe to convince you that (a) I may be a little odd3 and certainly a bit driven4 but (b) I’m really harmless and getting in touch will not be a bad thing. More information? And, if so, what kind of information?

Do you need to know more about the background I think we might share?

Do you need to know more about me?

Do you need some sort of assurance about what I might do with anything you tell me?

What can I do to help facilitate a conversation?

Perhaps you’re that cousin from out west that I never met because of her parents’ divorce. If that’s the case, I can understand you might want to be cautious about sharing information that might seem disloyal to the parent you were raised by. I can work with you on that, and honor your concerns.

Perhaps you’re an adoptee. Perhaps you knew that, or perhaps you always suspected that the folks who raised you weren’t your biological parents. If that’s the case, I can help you find out more about your biological family… and I will honor any conditions you put on sharing information.

Perhaps you’re a first cousin once removed and you’re just discovering your connection to this wild and wacky family that you’re a part of. If that’s the case, we’re all standing by to welcome you with open arms.

What do you need to hear from me? What can I tell you that will help to bridge the gap between “this is cool” and “this is creepy”?

What else can I say in my sharing invitation that can help ease your concerns and your fears?

Tell me, please.

Because my curiosity is eating me alive.


– Your Cousin


Image: Adapted from Johnny Automatic via OpenClipArt.org

  1. Judy G. Russell to projected 2nd cousin, 23andMe internal mail system, sent 15 April 2014.
  2. Judy G. Russell to projected 1st cousin, 23andMe internal mail system, sent 15 July 2014.
  3. Okay, maybe even a lot odd.
  4. Ibid.
Posted in DNA | 56 Comments

What’s in a name, anyway?

You can’t help but feel sorry for those in The Legal Genealogist‘s family who take up the reins a couple of generations from now.

I’d hate to be there while they try to figure out the naming conventions in my family.

MaxStart with the fact that my mother’s family is solidly southern.

That means that my aunt Cladyne was really Eula Cladyne, and my cousin Bobette was Michaela Bobette, that her sister Betsy is Monte Beth, that their sister Kay is Mary Kay, and that nobody is entirely sure whether my Uncle David was born as Fred David or David Fred. You get the picture.

And then there are those closer to home.

Including Max, who is celebrating his birthday today.

Max is my nephew, second child and second son of my brother Paul.

He is one-half of the reason why I am so excited and so honored to have been chosen as special lead presenter on the 11th Unlock the Past Cruise, scheduled for 14 February – 3 March 2016.

Because that cruise is from Auckland, New Zealand, to Fremantle, Western Australia. And Max and his older brother were born in Australia.

When we at home in the United States learned that the first-born had made his appearance, but hadn’t been named yet, the phone calls and even telegrams shot off to the destination Down Under.

We suggested all kinds of names that we thought sounded good with the family name … and some that had family history attached.

When we got the official naming news, we couldn’t quite figure out the genesis of that boy’s name: Rudolf. Rudi, for short. Nothing in our German family to account for that choice, and nothing in my sister-in-law’s Russian family.

Then along came son number two. (I did mention it’s his birthday today, right?) And his name: Max.

That’s when I started to suspect it.

And when the third son was born and we found out his name, I was sure of it. The third son is Stefan.

Because, you see, the deal was that my brother got to name the boys, and my sister-in-law got to name the girls, which ended up with Paul choosing three names and Nadine one.

And the only possible explanation for those three male names — Rudolf, Max and then Stefan — is that my brother thinks we descend from the Hapsburgs.

Nadine, of course, had no such pretensions when she named the girl.

Which, of course, leads to yet another story.

I remember vividly getting the call announcing the birth of their only daughter. My brother excitedly told me her name, and I wasn’t sure I heard it right.

“Kara?” I asked. “K-A-R-A?”

“No, Tara,” he replied. “T-A-R-A.”

“Oh,” I answered. “Tara! Sherman marching to the sea! Atlanta burning in the background! ‘Frankly, my dear, I don’t give a damn!’”

There was total silence on the phone, before he finally responded.


My brother had never read or seen Gone With The Wind.

I explained the references, and the fact that his daughter was about to share a name with a fictional Southern plantation.

He said he’d call me back.

I’m sure the Hapsburg prince who is celebrating his birthday today will get a celebratory phone call from his sister.

Who actually ended up being named Katya.

Have I mentioned lately that I love my family?

Happy birthday, Prince Max…

Posted in My family | 8 Comments

And the difference is…

So the peripatetic antics of The Legal Genealogist lead to northern Virginia tonight… and the annual dinner of NIGRAA — the National Institute on Genealogical Research Alumni Association.

The Institute, known as NIGR (pronounced NY-jer), is a week-long program at the National Archives in Washington D.C. and College Park, Maryland. It’s described on its website as “an intensive program offering on-site examination of federal records.”1

And, the website continues — with emphasis: “Designed for experienced researchers, it is not an introduction to genealogy.”

That, as a one-time sister-in-law of mine used to say, is a True Fact.

I know.

I had the great good fortune of attending NIGR in 2010, and there’s no truth-in-advertising issue here: intensive, it is; introductory, it is not.

And it is wonderful.

An entire week totally immersed in federal records and both the more common and lesser known resources of the National Archives, and, every year, the Institute ends with the Alumni Association dinner.

Which caused me, this year, to ask some questions. Such as… what’s the difference between a brig, a schooner and a cutter?

Because I have the honor of speaking tonight at that NIGRAA dinner… and the topic involves tales of some of our seagoing ancestors.

I’m not going to give anything away, but…


A brig, which is not the same thing as a brigantine, is “a sailing vessel with two square-rigged masts. During the Age of Sail, brigs were seen as fast and maneuverable and were used as both naval warships and merchant vessels. They were especially popular in the 18th and early 19th centuries.”2


A schooner was “a type of sailing vessel with fore-and-aft sails on two or more masts, the foremast being no taller than the rear mast(s)…. Schooners were further developed in North America from the early 18th century, and came into extensive use in New England. The most common type of schooners, with two masts, were popular in trades that required speed and windward ability, such as slaving, privateering, and blockade running.”3


And a cutter was “a small, decked ship with one mast and bowsprit, with a gaff mainsail on a boom, a square yard and topsail, and two jibs or a jib and a staysail.”4

Now the people who manned them…?

That’s a subject for dinner conversation…


Brig: Lance Woodworth, “Brig Niagra full sail,” CC BY 2.0.
Schooner: United States Navy, USS Arabia
Cutter: U.S. Coast Guard, The Eagle.

  1. National Institute on Genealogical Research ( : accessed 17 July 2014).
  2. Wikipedia (http://www.wikipedia.com), “Brig,” rev. 28 Apr 2014.
  3. Wikipedia (http://www.wikipedia.com), “Schooner,” rev. 9 July 2014.
  4. Coast Guard History, Frequently Asked Questions, ‘What is a Cutter?,’” United States Coast Guard (http://www.uscg.mil/ : accessed 17 July 2014), citing Peter Kemp, editor, The Oxford Companion to Ships & the Sea (London: Oxford University Press, 1976) 221-222.
Posted in General | Leave a comment

Indexing marathon

What are you doing this coming Sunday and Monday, July 20-21?

WorldwideEventPosterSome of us, of course, The Legal Genealogist included, will be arriving at and beginning our learning experiences at the Genealogical Research Institute of Pittsburgh (GRIP).

Some of us may be starting new jobs.

Some of us may be heading off for summer camps or programs.

Some of us may even be starting vacations.

But we should all find just a little bit of time — just a half-hour somewhere during the 24 hours between 00:00 coordinated universal time (UTC) and 23:59:59 UTC July 21 — to join in the Worldwide Indexing Event at FamilySearch.

Now that raises a bunch of questions, doesn’t it?

What’s the Worldwide Indexing Event?

It’s a one-day push to get (a) lots of records indexed at FamilySearch that are now hard to access because they exist only as images without indexes to the names that appear in the records and (b) lots of people actively involved in indexing, because that’s the only way to cure the problem of images without indexes!

Think about it this way.

The one piece of information you might need to break through a brick wall in your research might be in an obituary published in a newspaper somewhere out there in a location you haven’t even considered. If all that exists is a digital image of the published obituary, how are you going to find it?

Now think what you might be able to do if the names in that obituary came up in an index search.

The same is true of all those passport applications filed in the United States between 1795 and 1925. I’ve seen one where my German-born great uncle named his father in the record.

Or perhaps you need to be able to find that one record in the Manchester, England, parish registers.

Just consider all the things we might be able to discover, if only we could find the records that relate to our ancestors — and especially the ones they created in all those places where we don’t know they lived!

That’s the value of an index. It’s a clue pointing us to records we couldn’t easily find — and perhaps might not find in our lifetimes.

What’s the event goal?

To beat the old record of 49,025 indexers and arbitrators who joined in a similar event two years ago, on 2 July 2012. The aim is to round up 50,000 people — current indexers and a whole bunch of new folks — to index at least one batch of records during this 24-hour period.

And yes, we can do more if we want to and have time. But we need to do one complete batch — which usually takes no more than a half hour even for a total beginner — to be counted towards the goal of 50.000 indexers.

What do I have to do?

If you haven’t done any indexing before, it’s easy. You can learn more about how it’s done here. You can take a test drive, or get started with the basics, or find an indexing project that’s just right for you. There’s additional help here, too.

There are hundreds of projects to choose from to begin your indexing. FamilySearch is recommending four in particular for this event:

• US—Obituaries, 1980–2014
• US—Passport Applications, 1795-1925
• US, New Orleans—Passenger Lists, 1820-1902
• UK, Manchester—Parish Registers, 1787-1999

But there are so many more, from every part of the world, so if you’re Canadian, pick one from Canada. Australian? Plenty for you. European? Lots in your native language.

When are the start and end times in MY time zone?

Well, that kinda depends on what time zone you’re in, now, doesn’t it? You can check out what the time is right now in Coordinated Universal Time at this website, and do the calculation yourself.

Or you can just figure it this way. The start time of 00:00 UTC converts for the United States as:

• 9:00 p.m. Atlantic Daylight Time
• 8:00 p.m. Eastern Daylight Time
• 7:00 p.m. Central Daylight Time
• 6:00 p.m. Mountain Daylight Time
• 5:00 p.m. Pacific Daylight Time
• 4:00 p.m. Alaska Daylight Time
• 2:00 p.m. Hawaii Daylight Time

Need more help? There’s a Facebook page for the event that promises to help with local start times and even to provide status updates.

Can we count on you?

You betcha. I’m not sure where exactly I’m going to find that time — I’m teaching three full classes on Monday the 21st at GRIP — but I’ll find it somewhere, somehow.

Join me?

Posted in General | 12 Comments

Mason of Texas

You never know what you’re going to find in a statute book.


MasonThe Legal Genealogist is the daughter, granddaughter, and great granddaughter of Texans, so it’s always fun to have time to poke around in old Texas records.

And I was poking around last night in a book of old Texas laws.

Really old Texas laws — those of the Republic of Texas.

Not because I was looking for anything in particular but just because it’s fun. You never know what you’re going to find.

Like the story of John T. Mason.

Right there, in the front of volume I of this two-volume set of Texas Republic laws, is the Constitution of the Republic of Texas.

Which contains this provision:

whereas the protection of the public domain from unjust and fraudulent claims, and quieting the people in the enjoyment of their lands, is one of the great duties of this convention; and whereas the legislature of Coahuila and Texas having passed an act in the year 1834, in behalf of general John T. Mason of New York, and another on the 14th day of March, 1835, under which the enormous amount of eleven hundred leagues of land has been claimed by sundry individuals, some of whom reside in foreign countries, and are not citizens of the republic, — … It is hereby declared that the said act of 1834, in favor of John T. Mason … and each and every grant founded thereon, is, and was from the beginning, null and void; and all surveys made under pretence of authority … are hereby declared to be null and void …1

Uh oh.

So… who was John T. Mason and what was wrong with his … um … land grab?

Turns out he was a native Virginian, son of Stevens Thompson Mason, a Continental Army officer and later United States Senator from Virginia.2

He was born in Loudon County, Virginia, in 1787, and was just 25 when he moved to Kentucky. There, he became United States marshal by appointment of President James Monroe. He was named as secretary of the Territory of Michigan and superintendent of Indian affairs in 1830 by President Andrew Jackson.3

And then came the land situation.

Mason resigned from his U.S. government jobs in 1831, and took a job as confidential agent for the Galveston Bay and Texas Land Company — a New York company. This was a major land speculation operation involving millions of acres of land, shares being sold to stockholders, and grants being promised to those who would migrate into Texas and take up residence there.4

And it was John Mason’s job to represent this company and see to it that everything went smoothly.

Except for one little hitch.

There was an 1830 Mexican law barring immigration to Texas from the United States. The New York company couldn’t deliver title to the people it was recruiting.5

Mason headed off to Mexico and secured extensions of the underlying land rights. By 1833, he’d managed to convince the Mexican government to repeat the law against American colonization. He then resigned from the land company, bought some 400 leagues of land — nearly two million acres — for himself, and was doing his own land office business: literally and figuratively.6

In the meantime, in reliance on the laws he’d secured, the New York land company had issued titles for more than 916 square leagues of land — nearly four million acres — by 1835.7

And then the house of cards came crashing down. Mason’s land ownership and all the grants dependent on it and on the laws he’d secured were expressly annulled by the Constitution, adopted 17 March 1836. His land business was pretty much destroyed.8

He didn’t turn his back on Texas, however. He stayed there and eventually supported the Texas revolutionary cause. And he paid the ultimate price for his Texas loyalty — he contracted cholera there and died in Galveston in 1850.9

Now think about that.

Here we have the story not just of one man, but of a company, its shareholders, the immigrants it brought to Texas, all their land grants and titles and the years of lawsuits that followed as people tried to settle who owned what.

And all from one small paragraph in one small section of a single document in a set of statute books.

You never know what you’re going to find in a statute book…


  1. §10, General Provisions, Constitution of the Republic of Texas, in Laws of the Republic of Texas, in two volumes (Houston : p.p., 1838), 1: 20-21; digital images, University of North Texas Libraries, The Portal to Texas History (http://texashistory.unt.edu : accessed 15 July 2014).
  2. Wikipedia (http://www.wikipedia.com), “Stevens Thomson Mason (Virginia),” rev. 16 Mar 2014.
  3. Robert Bruce Blake, “Mason, John Thomson,” Handbook of Texas Online, Texas State Historical Association (http://www.tshaonline.org/handbook/ : accessed 15 July 2014).
  4. Andreas Reichstein, “Galveston Bay and Texas Land Company,” Handbook of Texas Online, Texas State Historical Association (http://www.tshaonline.org/handbook/ : accessed 15 July 2014).
  5. Ibid.
  6. Blake, “Mason, John Thomson,” Handbook of Texas Online.
  7. Reichstein, “Galveston Bay and Texas Land Company,” Handbook of Texas Online.
  8. Blake, “Mason, John Thomson,” Handbook of Texas Online.
  9. Ibid.
Posted in Constitutions, Primary Law, Statutes | 2 Comments

Civil law meanings

You can see it, right there.

It’s the very last section of the law.

LACC3549And there, Louisiana’s law says, “When the substantive law of this state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies.”1

Sure it does.


Okay… what the #$%@$# does that mean?

Oy, for the woes of a common law-trained genealogist2 in a civil law world.

For Louisiana, bastion of civil code jurisprudence in the United States, talks funny. Using words that just aren’t used, that way or at all, anywhere else.

As explained by Claire Mire Bettag CG, “Unlike common law, which is rooted in ancient English law, civil law derives from Roman law. It is usually written as a code and then adopted legislatively as a comprehensive body of law.”3 Which means it uses words that are drawn from Latin, and not the kind of legal Latin you’ll find in common law jurisdictions.

Words like peremption. That’s not a misspelling. Really.

And prescription. Which doesn’t mean what you might think.

These terms are flip sides of a coin in civil law jurisdictions — not just Louisiana, but places like Puerto Rico and Quebec and, oh, most of the world.

Prescription is “a mode of barring actions as a result of inaction for a period of time.”4 The common law equivalent: statute of limitations, defined by Black as a “statute prescribing limitations to the right of action on certain described causes of action; that is, declaring that no suit shall be maintained on such causes of action unless brought within a specified period after the right accrued.”5

Peremption is a “period of time fixed by law for the existence of a right. Unlike … prescription, which merely prevents the enforcement of a right by an action, peremption destroys the right itself. Also, unlike prescription, peremption may not be renounced, interrupted, or suspended.”6 And this concept doesn’t have an exact common law equivalent.

So the statute means that whenever Louisiana law applies to a case in Louisiana’s courts (rather than the law of some other state, which could happen if, say, a Texas resident sued in Louisiana because of a car accident caused in Texas by the Louisiana defendant), then Louisiana’s laws about how long you can wait before you sue — and whether you can sue at all at this time — apply too.

The language of the law.

Which changes if you happen to cross the border into a civil code jurisdiction.


  1. Louisiana Civil Code §3549(A), Louisiana State Legislature (http://www.legis.state.la.us : accessed 14 July 2014).
  2. Or lawyer!
  3. Claire Mire Betagg, “Civil Law Concepts and Genealogy: Learning from the French Model,” National Genealogical Society Quarterly 95 (September 2007): 179-196.
  4. N. Stephan Kinsella, “A Civil Law to Common Law Dictionary, 54 Louisiana Law Review 1265, 1280 (May 1994); PDF version, Digital Commons @ LSU Law Center (http://digitalcommons.law.lsu.edu/ : accessed 14 July 2014).
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1122, “statute of limitations.”
  6. Kinsella, “A Civil Law to Common Law Dictionary, 54 Louisiana Law Review at 1285.
Posted in Legal definitions, Statutes | Leave a comment

Next in an occasional series on copyrights for genealogists.

Reader Lee was confused about his right to use images of articles and other contents of newspapers from his state that he was accessing through microfilmed copies at his local library.

Microfilm_readerHe explained that the state’s library and archives tried to microfilm all of the state’s newspapers in the 1960s and 1970s, and that the “reels indicate that the state filmed them and lists the date, but … do not contain a copyright notice.”

Today, the films are “at local libraries around the state and are used regularly for historical research.”

So, he asked:

• “Does the state library and archives own a copyright on these microfilmed copies of the newspaper?”

• “Which date counts for copyright? The date the paper was published or the date the state microfilmed it?”

Good questions.

With relatively easy answers.

No, the state library and archives doesn’t have a copyright on the microfilmed copies. In fact, a microfilmer isn’t ever going to qualify for a copyright under American law in anything the microfilmer didn’t add to the originals it was copying.

The concept here is a fundamental one of American copyright law: you can only get a copyright on material that is original. The statute couldn’t be clearer: “Copyright protection subsists, in accordance with this title, in original works of authorship…”1

Now what exactly has to be shown for something to be considered original has been a hot topic for the courts to decide. But two court decisions have pretty well answered the question.

First, the U.S. Supreme Court decided a case involving a telephone directory that had been produced by a local telephone company and then copied by another company that specialized in publishing regional phone books. And there, in Feist Publications, Inc. v. Rural Telephone Service Co., the Court said:

The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. … Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. …

Originality is a constitutional requirement.2

The Feist Court went on to explain that it didn’t matter how much effort a company put into compiling its information — how much “sweat of the brow” work it did. If it wasn’t original, it wasn’t copyrightable.

Now some people tried to argue that the Feist case only applied to factual compilations, since that was the type of publication involved there. But some years later, a federal trial court in New York decided a case involving artistic works and came to the same conclusion.

In Bridgeman Art Library v. Corel Corp., the issue involved photographs of art works from European museums. All of the art works themselves were out of copyright, but the company that produced the photographs claimed a copyright in the photos. The court rejected the claim:

In this case, plaintiff by its own admission has labored to create “slavish copies” of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality — indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.3

What counts, then, for copyright purposes is not the microfilming — that’s the same sort of slavish copying that simply doesn’t qualify for copyright protection. What counts is whether the original is still under copyright protection. So the answer to the second question is, the copyright is measured from the original publication of the newspaper, not the date on which it was microfilmed.

Since Lee was using only newspapers published before 1923 — and since everything published in the United States before 1923 is now out of copyright and in the public domain4 — he has nothing to worry about.

So… does that mean there are never restrictions on our ability to use microfilm?

No, because there are circumstances where the content is protected one way or another:

• The microfilm may be a licensed copy of material that is still copyright-protected. An example would be a microfilm of a newspaper published in 1990. (Copyright for a work of corporate authorship of this type is 95 years from the date of publication.5)

• The microfilm might be of an unpublished manuscript of an author who died less than 70 years ago. (Copyright for an unpublished work is the life of the author plus 70 years.6)

• The microfilm might be of an unpublished manuscript created by an author in 1900 but whose death date is unknown. (Copyright lasts for 120 years from the date of creation in that case.7)

• The microfilm might be made available only under specific terms and conditions — imposing contract law, not copyright law8 — that we have to abide by.

But as to the typical newspaper microfilm… a copy of an original has only the same protection as the original, and if it’s out of copyright, it’s out of copyright. Period.


Image: University of Haifa Library, Wikimedia Commons

  1. “Subject matter of copyright: In general,” 17 U.S.C. §102(a).
  2. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345-346 (1991).
  3. Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191, 197 (S.D.N.Y. 1999).
  4. See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 13 July 2014).
  5. See ibid.
  6. See ibid.
  7. See ibid.
  8. See generally Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 13 July 2014).
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