Protecting our own copyrights

No, really, honestly, the fact that it’s on the Internet doesn’t mean you can copy it.

Adult bald eagle fishing

Copyrighted or not?

One of the biggest legal issues we genealogists confront on a day-to-day basis is the issue of copyright protection. I have a few questions in the queue that I’m working on as to what can’t and can’t be done while respecting another’s copyright, but there’s one aspect of this issue I think we tend to overlook:

As genealogists, we also have our own individual intellectual property rights — our own copyrights in our own work (in our writing and in the photos we take) — that we can and should protect as well.

Think, for example, of archives of published articles such as those recently posted by Elizabeth Shown Mills on her wonderful new website Historic Pathways. Think about the careful proof arguments that we work on and write up and post for others to learn from and comment on. And think about things like photographs we take to illustrate our research — or even just for our own enjoyment.

I thoroughly annoyed some dude earlier this month with my response to a comment he posted to a personal blog I have. I had posted there the image you see here, a photo I took on a trip to Alaska last year. He wrote:

Am writing to request permission to use one of your pictures in my personal profile on facebook … I have made some modifications to the original image. I hope you will approve. Thank you for sharing …

Not so fast, kimosabe.

Let’s start with a few basic facts:

     • 1. The instant I took that picture, I owned the copyright.1

     • 2. My copyright has been registered with the U.S. Copyright Office (with the rest of the images I took that day, see the gallery here). But it didn’t have to be.2

     • 3. This copy of the photo has my copyright statement, but it doesn’t have to have one.3

     • 4. My copyright lasts not only for my lifetime, but for 70 years after I die.4

So what does my copyright mean? Pure and simple, I have the exclusive right to say what can and can’t be done with that photograph. There are exceptions, with the big one being fair use.5 Trust me on this one: snagging 100% of somebody else’s photo for your own website or web account ain’t fair use.

And so where did the dude go wrong? Ah, let me count the ways.

First, he didn’t get my permission to use the image. In fact, what he was asking for wasn’t permission. It was forgiveness. He had already taken the image without asking, changed it to suit his preferences, and posted it (turns out not only on Facebook but on his Twitter page as well).

Second, he had changed the image. Period. The Copyright Office makes this clear: “Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.”6

Third, he assumed that my “sharing” the picture on my personal blog was also “sharing” the right to use it. Nope. Remember: the image is mine. I can use it. But nobody else can unless I say so.

Fourth, he assumed that because he said where he got the picture, he wasn’t violating my copyright. Nope again. All he did by saying where he got it was not pass it off as his own work. Saying “I copied this from you” is still copying it, and that violates the rights of the copyright holder.

Fifth, he gave me no reason for saying yes to him. I don’t know this dude. I have no clue who he is or what he does for a living or what use he might make of the sites where the photo would be or what he might or might not post on those pages. Maybe I would have been willing to have my photo associated with that… and maybe not.7

And sixth, I must confess, he annoyed me. He didn’t ask for permission in advance, he changed the image (hey! what was wrong with it as it was, darn it?) and he got snotty when I said he couldn’t use it. (Asking “did you ask the eagle for permission before you photographed it?” is not the way to win friends and influence people.) I had to threaten to get Facebook involved to get him to remove the image from his pages.

All that being said, I do appreciate the fact that he asked at all. But I was and am uncomfortable in having my work (and my name) associated with people I don’t know and whose personal, political, moral or other positions may well be antithetical to my own.

Taking a hard line on copyright isn’t an easy position for a genealogist to take. As a group, we are and we should be sharers. But there’s a difference between sharing facts (which, by the way, can’t be copyrighted anyway8) and having what we’ve done stolen. When we do important work of our own, we have the right to keep control of that work, and it’s important to draw the line and say no.

So… got that, dude? Next time, go take your own pictures.


SOURCES

  1. U.S. Copyright Office, Copyright Basics (http://www.copyright.gov/circs/circ1.pdf : accessed 19 Feb 2012) at 2 (“Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work.”).
  2. Ibid., at 3 (“No publication or registration or other action in the Copyright Office is required to secure copyright.”).
  3. Ibid., at 4 (“The use of a copyright notice is no longer required under U. S. law, although it is often beneficial.”).
  4. Ibid., at 4 (“A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death.”).
  5. See generally U.S. Copyright Office, Fair Use (http://www.copyright.gov/fls/fl102.html : accessed 19 Feb 2012).
  6. How much do I have to change in order to claim copyright in someone else’s work?,” Frequently Asked Questions about Copyright, U.S. Copyright Office (http://www.copyright.gov/help/faq/ : accessed 19 Feb 2012).
  7. I have given permission to folks who asked to use an image exactly twice. The photos were of the 9/11 Tribute of Lights in New York City. One permission went to a municipal memorial committee for its program, the other to Yale University for a similar purpose.
  8. What does copyright protect?,” Frequently Asked Questions about Copyright, U.S. Copyright Office (http://www.copyright.gov/help/faq/ : accessed 19 Feb 2012).
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19 Responses to Protecting our own copyrights

  1. Dee Dee King says:

    No hestitation here to protect my copyrighted material! A theft is a theft. Thanks for the great article.

  2. This article deserves to be cited by many on a regular basis. Thank you for this valuable contribution to this important topic to each of us! ;-)

  3. Debi Ham says:

    Nice, straightforward and succinct article…much clearer than other explanations I’ve seen. I suppose you can’t blame the annoying dude for trying, though…it’s a FANTASTIC photo!

    • Judy G. Russell says:

      Thanks, Debi, and thanks for the compliment on the photo. It was a wonderful trip and being able to see these majestic birds so close was just terrific. (And The Dude can take his own trip with his own gear!)

  4. Elizabeth says:

    Great article. I have wondered how to handle photos, of family, that I have shared only to see them presented as “shared” as the presenter’s own.
    Your article was very clear. Thank you

    • Judy G. Russell says:

      You’re welcome. But your question raises another point — about photos we own, as opposed to photos we personally took. The rules are NOT the same.

      I’m adding that to the queue!

  5. Celia Lewis says:

    Such a great answer – and of course, a very tiny thanks to the DUDE who presented you with a fait accompli and thought it was ok – thus starting this article in the first place. Photos are particularly likely to be taken blithely by others and presented as theirs. Sigh. A definite challenge. I’m now waiting for the next article on “photos we own, as opposed to photos we personally took.” Thanks for your enlightening article.

  6. Dawn Bingaman says:

    I am in the process of building my site, and am also curious about copyright. Images I took are a no brainer, but what about historical photos and documents that I’ve inherited and have digitized? If I was to do a visible watermark and/or put info in the metadata, would I use my own name, or the name of my site (which may or may not be my future company name)? Or would it be different depending upon the creator? I see your own site copyright is “The Legal Genealogist” and not your name. Thanks for the informative article.

  7. Nancy says:

    Is your third profession photography? It’s a fabulous photograph!

    It seems obvious to me, not a person with much legal background, that what the facebook used did broke copyright laws.

    But what about pinterest? When someone links an image of your eagle to one of their pinboards is that copyright infringement?

    Thanks.

    • Judy G. Russell says:

      Thanks for the kind words, Nancy. Photography is pure hobby for me — what I do for fun.

      As for Pinterest… I have to tell you, I wouldn’t be on that site for anything. I’m not convinced it isn’t a massive copyright suit waiting to happen. If you want to see why I won’t go on there, you might read this blog post by another lawyer-photographer.

      • Nancy says:

        That blog post was the one that prompted me to ask you about Pinterest! Thank you for your opinion, Judy. I appreciate it.

        I looked at some of your other photos. They are fabulous! I love the little bird in your header.

        • Judy G. Russell says:

          I absolutely agree with the blog post. Granted most people don’t care when you “pin” something. A company selling something would be delighted. What gets me there (and anywhere that has the same terms, such as most photo contests) is the notion that you give Pinterest an unrestricted license to do what they want with YOUR stuff. Uh uh. Not me. No way.

          Thanks for the compliment on the photos. I do enjoy it. The bird in the header is a lilac breasted roller photographed in Botswana in 2008. Fabulous fabulous amazing trip of a lifetime.

  8. Tony Rivera says:

    A great and much needed article on an important subject. How about a follow-up with some real world guidance as to what actual steps one can take to “protect” their copyrights?

  9. Pingback: Copyright, plagiarism, and citing your sources | Planting the Seeds

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