Copyright and the genealogy report

Next in an occasional series on copyright: work made for hire

The readers are on opposite sides of the bargaining table, but they are both confused by the same thing: the way copyright law works with a report from a professional genealogist.

contract“I just received the report from the genealogist I hired,” writes reader Bill D. of Colorado. “Every page says it’s copyrighted by the genealogist. But I bought and paid for that research. I don’t understand how the genealogist can tell me he owns the copyright on the report. Isn’t this a work for hire where I get the copyright?”

And reader-and-professional-genealogist Debbie H. poses the question from the other side: “A client just questioned the copyright status of my report to him. He asks ‘I have a small question regarding copyright. It is my understanding from the copyright office that a “work made for hire” belongs to the employer or person actually paying for the work.’ How should I respond to him?”

The work-for-hire doctrine is a little confusing, so let’s go over the basics.

In the ordinary case, under U.S. law, a copyright belongs to the creator of the work — the artist, the sculptor, the author of the book or the report. It comes into being automatically, the minute the work is created: “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.”1 It doesn’t have to be registered in the Copyright Office2 and it doesn’t have to have a copyright notice on it.3

But there’s an exception to the creator-as-copyright-owner rule when the work is what’s called a work made for hire:

Although the general rule is that the person who creates the work is its author, there is an exception to that principle. The exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author. 4

That sure makes it sound like that genealogy report is a work made for hire, doesn’t it? But, as usual, the devil’s in the details, and there’s a key limitation that’s only hinted at in the phrase “specially ordered or commissioned in certain specified circumstances.”

Those specified circumstances come from the statutory definition of a work made for hire in 17 U.S.C. §101. That definition has two parts, one that’s fairly easy — and one that’s not so easy.

The easy part of the definition is that “a work prepared by an employee within the scope of his or her employment” is a work made for hire.5

So if you’re a regular employee, and you have to take pictures every day as part of your job responsibilities, it’s a work made for hire and the company that pays you owns the copyright to those photos. But your status as an employee doesn’t affect, say, your ownership of the copyright on the photos you take with your own camera at night or on weekends.6

The harder part of the definition includes as a work made for hire some types of work “specially ordered or commissioned for use”:

• as a contribution to a collective work,
• as a part of a motion picture or other audiovisual work,
• as a translation,
• as a supplementary work,
• as a compilation,
• as an instructional text,
• as a test,
• as answer material for a test, or
• as an atlas.7

And there’s a long definition of just what’s meant by a supplementary work or instructional text.8

Figuring out if the work falls into one of those categories can be confusing. If I hire someone to do some research and I’m going to include it in a book I’m writing, is that a contribution to a collective work? Is it a supplementary work?

You might spend a lot of time going over the definitions. Or you might go to that one other minor little matter that’s part of those “certain specified circumstances” that have to be there to make it a work made for hire.

You see, the statutory definition doesn’t end after listing the types of works that might be included. It adds one more proviso. The work is a work made for hire only “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”9

In plain English: you have to have a written contract, signed by the genealogist and by the client, that says it’s a work made for hire. Without that, the copyright belongs to the genealogist, not the client.10

In both Bill’s case and Debbie’s case, there wasn’t any contract provision mentioning copyright at all. That by itself means the work is not a work made for hire.

Bottom line: it isn’t a work made for hire unless there’s a contract that says so.


SOURCES

  1. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 19 Nov 2013).
  2. Ibid., PDF at p. 3.
  3. Ibid., PDF at p. 4.
  4. What is a work made for hire?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 19 Nov 2013).
  5. 17 U.S.C. 101, “work made for hire.”
  6. See generally “Works Made for Hire,” Keep Your Copyrights, Columbia Law School (http://web.law.columbia.edu/keep-your-copyrights : accessed 19 Nov 2013).
  7. 17 U.S.C. §101, “work made for hire.”
  8. “For the purpose of the foregoing sentence, a ‘supplementary work’ is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ‘instructional text’ is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.” Ibid.
  9. 17 U.S.C. §101, “work made for hire.”
  10. See generally U.S. Copyright Office, Circular 9: Works Made for Hire, PDF version at p. 2 (http://www.copyright.gov : accessed 19 Nov 2013).
Print Friendly
This entry was posted in Copyright. Bookmark the permalink.

34 Responses to Copyright and the genealogy report

  1. Jaundiced says:

    Basically, professional genealogists want to have their cake and eat it too. They want to work for hire, but then be able to use their work products to suit themselves. Just my take on reading many discussions of “professional” genealogists.

    • Judy G. Russell says:

      I take it — since you choose not to use your real name or real email address — that you have a bone to pick with the entire world of professional genealogy because you didn’t enter into the contract you wanted with the genealogist you chose. Might I suggest that next time you make sure the contract says you get the copyright — and that you properly pay the additional amount you should pay for getting all rights? That cures the problem entirely.

  2. Jaundiced says:

    Nope. You’re totally off the mark. I’ve never employed a professional genealogist. It’s just the attitudes of those on mailing lists, their constant whining about “professionalism” (or lack thereof) that is irritating. And of course, condescending, snide remarks like yours don’t help the face of the field, either.

    Read my remark objectively. Professional genealogists DO work for hire. Still they insist on retaining all the rights to the products they produce for others. People in my profession don’t do that, and they’re far more highly educated and generate products that are far more complex, original, functional, and valuable than family trees.

    • Judy G. Russell says:

      You’re persisting in trying to rewrite the law to fit your preconceived notions of what “for hire” means. It simply doesn’t mean what you think it does. And until you’re willing to put your real name on your views, your “we’re so much better educated and our work is so much more valuable” doesn’t carry much weight.

  3. Jaundiced says:

    Wow! You need to get out into the real world.

  4. Tim Campbell says:

    Great article Judy!

    As a professional genealogist, I give copyright to every report to the client it was commissioned for; including the reports I have completed for FREE!

    Why? Correct me if I am wrong, Judy, but by Canadian law, I hold copyright to every report I write, but after transferring that copyright I am still recognized as the author of that report. I don’t care about keeping copyright to every report I write. I sell my own family history books at cost recovery, because there’s no way it will became a best-seller and make a profit.

    Genealogy isn’t about making money: it’s about living history. If it isn’t discussed and takes a written instrument to be able to reproduce and share a genealogy report, you’re dealing with the wrong person.

    • Judy G. Russell says:

      You’re right that under Canadian law you have extra rights that are called moral rights, Tim. Unfortunately, those aren’t recognized by US law. I’ll be talking about those (and other concerns for intellectual property and reputation) at the APG PMC in Salt Lake City in January — and how a contract can step in and fill the gap.

  5. Judy, I’m wondering about the use of the term “employee” regarding work for hire. My contracts specify that I am in independent contractor and not an employee. I thought that few genealogists producing reports for clients legally would be considered employees. Is this also relevant when considering work for hire?

    Thanks for another great blog post.

    • Judy G. Russell says:

      Cathi, it’s relevant only when the genealogist actually is an employee, meaning an agent, of a company or other entity. An example would be if you ran a small genealogy business and hired two others to work for you as employees. Their work for you could well be considered a work for hire as between you and them. As between your company and the client, your contract would still control.

  6. Rondina says:

    Judy, my contracts state that I own the copyright to the creative authorship of any end-products, however, the information within those products can be used in any manner the client wishes. The contracts also state that the client must use any qualifiers (possibly, most likely, &c). If the client follows the terms of our agreement, this supposedly will help keep the theoretical from turning into fact. So far, I have not had any client misuse the information contained in any report that I am aware of. I also will give any client permission to reprint the end-product as a whole. This preserves my creative writing (and analysis) while allowing them to use the work as a whole. What is your opinion of these terms?

    I also remember a discussion that took place one or two years ago on one of the list about whether the copyright should be turned over to the client. My opinion was that it should not, but I do remember that “a person of importance” stated that he/she found no reason why we should hang on to the copyright if we have earned our money. At the time, I was in the middle of waiting for a client to make a decision as to whether he wanted the second edition of a book. The first edition was on a deadline (the Christmas present problem) and although over 500 pages, it was incomplete research and contained no index. It was his choice as to whether he wanted to continue the project, however, since I hold the rights to my creative authorship of the book—turning the project over to someone else is problematic. I would have to turn over my wording, while someone else put their name on the four-fifths of the work. I would be interested in any comments you have on this situation.

    • Judy G. Russell says:

      I don’t want to cross the line between general discussion and offering legal advice, so I’m going to refrain from commenting on specific contract terms except to say that what every professional wants and needs are contract terms that work for that professional. If yours are doing what you need them to do, that calls to mind the old adage: “if it ain’t broke, don’t fix it.”

      As for the list discussion, I remember it well, and I agree strongly that except for forensic genealogists what are called moral rights are much more important for professional genealogists than copyright is. And we’ll be discussing that at the APG PMC as well!

  7. J. Brian Gilchrist says:

    Greetings from Toronto: Please allow me to comment wearing three of my hats, as an Archivist, as a Genealogist and as an Expert Witness for The Crown in Ontario on matters regarding genealogy (etc.) Judy’s summation about the copyright of genealogical reports is basically the same here in Canada, noting that moral rights and intellectual properties have not yet been considered in this discussion. One of the major differences we have here in Canada are the (challenging?!)copyright laws concerning the use of documents, photographs, etc., used in the reports combined with our very stringent Canadian Privacy laws and Access to Information laws (which exist at all levels of Canadian government: Federal, Provincial and Municipal, i.e. FIPA, MFIPA and PIPEDA). Judy, may I suggest that with respect to the copyright of the genealogy reports, and perhaps copyright in general we need to address two more items: 1) compliance and 2) enforcement? Cheers – on this beautiful fall day in Toronto … J. Brian Gilchrist

    • Judy G. Russell says:

      Nice to have the Canadian viewpoint, Brian — your moral rights rules are much different from ours but your issue of using documents and photos comes in mostly because of the Crown copyright which doesn’t exist in the US. Sounds like a blog post for another day… and maybe for a guest blogger… hint hint.

      • J. Brian Gilchrist says:

        Nudge Nudge wink wink … I will consider the offer. Just one clarification … copyright is much more than The Crown. For example, we in Canada are having issues understanding the challenges of our Copyright Act and the Rules and the Rules and Regulations of the said Act, regarding photographs. In the course of your research you go to the ABC archives, and wow they have a 1967 picture of your Geneadorf family reunion. The ABC Archives can make a copy for your “personal use and study” but that does not grant you the right to reproduce that image in a family history for distribution. The copyright is – or can be – held by the person who took the picture on their camera – and who the heck was that???? So this is where the concern about copyright compliance and enforcement comes into play.

        • Judy G. Russell says:

          Those same issues — who owns the copyright to something created long ago — exist here in the US as well, and I’ve written about many of them in different posts. If you look at the list to the right, scroll down to the section called Categories and click on Copyright, you’ll see that this blog is no stranger to those issues!

  8. Dee Dee King says:

    Thank you for this article, Judy. This has come up several times in my professional career. I heeded advice early on to add a copyright clause in my client contracts. The same clause is in the contract I use with attorneys and government officials. They understand that it is not a matter of having my cake and eating it, too. It’s a matter of law. My contracts specify that the client and I have no employer-employee relationship, that I am an independent contractor, and that my intellectual and work product are mine under curent copyright law.

    When someone insists that because they pay me for a few hours work out of an entire work year that I am doing work for hire, I usually good naturedly joke that in that case they need to withhold/submit my Social Security and income tax and when does my paid vacation start.

    • Judy G. Russell says:

      For forensic folks like you, Dee Dee, having that copyright control really is quite important. I’m not convinced it’s nearly as important for genealogists who don’t do forensic work. As long as the compensation is adequate, and moral rights are recognized by contract language or law (or both!), then both sides in the non-forensic area may be well-served.

  9. J. Brian Gilchrist says:

    In response to Tim Campbell’s comment above may I suggest that under Canadian copyright law you can not “give” away the copyright – as it is automatically attributed to the author of the report when the document is created (however this too can be subject to the terms of any contract as Judy has mentioned). Consider using the term “assign” – think of documents which state words to the effect of “I hearby assign all my rights, title and interest whatsoever to my xyz property to my daughter Jeannie Geneadorf ….” Cheers! J. Brian Gilchrist

    • Tim Campbell says:

      You’re right that I can’t “give” away my copyright, but I think more in terms of a liberal license to reproduce and distribute. Most clients don’t understand the intricacies of the law: they’re just happy to be able to share the report with family.

  10. I have had prospective customer – an American – take issue with my copyright in my report and refuse to sign a contract with me. As a result of that experience I added a section on copyright to my terms of business: http://www.carolinegurney.com/terms.html.

    As I say there, “under British law, copyright in the research report as a whole belongs to me, the author. I am happy for clients to share my reports privately but do ask that you seek my agreement if you want to publish what I have written. I ask this to protect my intellectual property – the way in which I have conducted my research, the discoveries I have made and how I have structured my analysis and arguments. Without copyright, someone could pass off my work as their own and take the credit for it which rightfully belongs to me. They could also benefit financially from my work, by reselling it in printed or digital form. Copyright also protects my professional reputation. Without it, someone could publish my work in a truncated, altered or misleading form, whilst attributing it to me. Others might then judge me to be a poor researcher on the basis of what I had supposedly written.”

  11. Cathleenh says:

    Hi Judy,
    I just now got around to reading the comments on this article. I’m going to tell you up front that I am not in a position to argue law – that’s one of the reasons I read your blog. I do have to admit that I sympathize with “Jaundiced” in his/her point of view. I do not agree with the way he/she expressed him/herself or with the crack about being more highly educated. Come to think of it, wasn’t it Mark Twain that said, “Some of the most ignorant people I know are educated”? I think what the argument was about was morality verses legality and I think we can all agree that those two things ARE mutually exclusive. What’s the other thing I hear all the time? Oh, yeah: “it’s called a court of law, not a court of justice.” And really, truly, morality cannot be legislated no matter how hard people try to do it. And, no, I don’t advocate anarchy. Nor do I think that someone should not get credit for their work.

    However, whether you call yourself an independent contractor or an employee, it comes down to this: if I pay you money to do a job for me then in my mind I have hired you. In fact, how often do all of us say, “Landed a job today, “ “got hired to do (Fill in the blank) today,” etc? And, yes, I know that the law looks at it differently. The awful truth is that calling yourself an independent contractor just gives you the right to say “No I don’t want to do that job” as opposed to “ Right away, boss.” Another industry that is notorious for this sort of thing (with some slight differences) is the recording industry. If an artist does not have it spelled out in a legal document that they have rights to the product they are producing (even if they are the ones that hired the studio) then the one creating the recording (as I have been given to understand) is the one that holds the copyright.

    Another way of looking at might be this (and I’m not using the intellectual property argument here but I am using an example using an “independent contractor” who has skills that I don’t). I have a cow. I take that cow to a butcher (an independent contractor – he is not my employee). He butchers the cow and packages the meat. I pay him to do that. If you want to push the point you could say that he holds the copyright to the way that the product is returned to me as he was responsible for creating the individual roasts, steaks, etc and for the way in which those items were packaged. So, I have paid him for the time and effort he put into the butchering and packaging and now he tells me that I can’t do anything I want to with the meat. He is the one that has the authority to decide if and when and how I can cook it.

    How do I know that an independent contractor who has copyright to the information they have found out about my family, won’t go and publish it. I know that everyone is going to say, “Why would they do that? Your family isn’t important enough to publish a compiled genealogy about if I’m not related to them.” and that is certainly true, but it could happen. And, if I want to publish it, why shouldn’t I be able to — with the stipulation that the publication is an accurate account of the work done and that the genealogist is given proper credit (as I think was mentioned in another comment). I’m not arguing the law here, I’m expressing an opinion on the “morality.”

    The painful truth is that there are unscrupulous people on both sides of this fence.

    So while I agree completely with your answer to Jaundiced and recognize his cowardice in not giving his real name, etc, I can kind of see what he was ranting about. And, by the way, my real name is Cathleen.

    • Judy G. Russell says:

      Hi, Cathleen, and thanks for adding your comments on this issue.

      Understand that, in general, I don’t see any particular reason for a genealogist not to give the copyright (meaning the right to use and to copy and to distribute) to the client as long as it isn’t forensic work where the courts can be involved and there are very good reasons why total control needs to be retained. In return, and again in general, I don’t see any reason for the client not to give the genealogist certain rights: the right to use the information for publication and lectures, the right to submit it as part of a portfolio for accreditation or certification and the like. But the most important right I would never ask a genealogist to give up — and I say this as someone who doesn’t do client work — is the right NOT to have his or her name associated with work that’s modified or changed and then passed along with his or her name on it. That’s what can really damage a genealogist’s reputation.

      • Robert Kirk says:

        Judy… Your darn blog is becoming addictive for its great topics.

        (1) I don’t understand any necessary connection (though there very well be one) between copyright and forensics. Does a lab tech copyright his report to the court? Does an expert witness copyright his opinion? Isn’t court testimony copyright exempt, anyway? Why is a forensic genealogist more or less interested in copyright that any other professional geneaogist?

        (2) On a lighter note, Colleen’s comment about the recording industry reminds me of a copyright issue a few years ago where someone got an assignment from some ancient radio producer and threatened suit (usually settling) against smalltimers selling tapes of off-the-air recorded (pirated?) old time radio shows from the 1930s & 40s.

        How on earth can someone tell who owns copyright there if, indeed, there is one? In those days a sponsor would buy time on a radio station, hire a producer to make a show where hired writers would write a script for actors to read, with a studio organist playing copyrighted (but usually public domain) music in the background. A whole bunch of potential stakeholders. Of course when the show was broadcast live, and recording was rare, no one worried about future rights.

        Some time ago, I posed the above question to my smart as a whip, white shoe intellectual property lawyer nephew. I got the typical reply, “It depends”. Do you learn that phrase the first day of law school?

        Cheers, Bob

        • Judy G. Russell says:

          >> Do you learn that phrase the first day of law school?

          Now you know what my answer to that is going to be!!! (It depends!)

          And yes, actually, professional witnesses of all stripes zealously guard the copyrights to their expert opinions. The risk to their livelihoods if some portion of their report were altered or used without their knowledge is enormous. It’d be very very foolish to sign away the copyright to an expert report that was going to be used in litigation. VERY foolish.

  12. Susan Johnson says:

    I have hired a professional genealogist, and I think I’m with Jaundiced on this one. 90+% of all genealogy reports do not involve forensic genealogy. They can be done by a lone practitioner (except when sub-contracting out of area work) in a circumscribed period of time. In the reports Jaundiced linked to, it appears that the work and expertise they entail goes well beyond hunting through old documents and then writing it up. It requires teams of people with a wide range of expertise, years of research, and complex analyses. I noticed that those reports were all produced under contract, exactly as genealogy reports are, and I didn’t see any copyright claims in any of them. It’s mystifying as to why professional genealogists insist upon retaining copyright to work they create for others. Perhaps they’re just “special” (or think they are). And I’d have to add that determining if our schools and preschools are working is far more important than determining if the horse was dead, undercutting a falsified tale of victimization, or even finding the long-lost relatives of dead servicemen or the distant heirs of wealthy decedents.

    Thanks for the links, Jaundiced. Interesting reading.

    BTW, I’m also with Jaundiced on the character of your initial reply. I’m not sure why you leaped to the conclusion that J was a miffed consumer (leaping to conclusions is a poor practice for a genealogist, don’t you think?), and your tone was unnecessarily rude and demeaning.

    • Judy G. Russell says:

      I certainly HOPE Jaundiced was a miffed consumer. If he/she/it wasn’t, and was just slamming an entire group with absolutely no experience whatsoever with the group, then I wasn’t rude enough.

    • Cathleen says:

      Sorry, I’m with Judy here. Jaundiced showed cowardice by hiding behind his/her/its user name. Jaundiced initiated the first attack. His/her/its use of “professional” in quotation marks was a derisive implication that genealogists do not deserve to be put in that category. It was perfectly understandable that Judy would “jump to the conclusion” she did. That was my first thought and that was before I read her response.

      And you have to be careful anytime you assign a “tone” to something you see written. Personally, I found several statements in your comment to have the same tone you attributed to her. I believe the way you put it was “unnecessarily rude and demeaning.” Case in point: “(leaping to conclusions is a poor practice for a genealogist, don’t you think?)”

      I have found that “importance” often depends on the circumstance. A firefighter makes far less money that Donald Trump. But if Donald’s house is on fire — who do think is most important? Donald because he wears a suit, or the guy who knows how to put out the fire?

      I happen to agree that the copyright should belong to the one who hired the research to be done. However, I can see the other side of the argument as well. There is a need to protect one’s research from being “deconstructed” and released without any acknowledgment that changes were made. It’s a complex problem and maybe Jaundiced should marshall his forces to find a solution since his/her/its group is so much more “highly educated and generate products that are far more complex, original, functional, and valuable” (by the citation to that quote is the post made by Jaundiced on this blog, Novemember 20, 2013, 11:23am — see above.

      As to the comment concerning “years of research and complex analyses”; have you done any genealogy research? Oh, wait, re-reading your comment answered that question since you started by saying you had HIRED a genealogist to do it for you. There is a lot of complex analysis required in answering some questions and the research skills employed are every bit as valid as those that Jaundiced may find him/her/itself using.

      And you don’t think that finding the long-lost relatives of dead servicemen is important? Do you have anyone in your family that has not been able to come to terms with a disapearance of a loved one and the pain that comes from not knowing what happened to them? You obviously have little or no compassion for those who spend years wondering about where and when and how their fathers, brothers, uncles, died. (And, please excuse me for jumping to a conclusion, here, but that does seem to be implied from your statement). As for finding the distant heirs of wealthy descedents — well, I guess the importance of that would depend on whether or not you were the heir living in a cardboard box under a bridge somewhere. It may just be that the inheritance would enable you to send your child to one of the pre-schools/schools that has been improved because of the research done by Jaundiced. Which might enable that child to find a solution for the copyright dilema.

      Genealogists don’t necessarily think they are “special” but they do possess a special skill set that they have worked hard to develop. And they are often able to draw conclusions that contribute to the welfare of future generations who were affected by the “falsified tale of victimization.”

      And, no, I am NOT a professional genealogist.

      Judy, I know that this is going to moderated before posting. I don’t want to prolong this little war and want you to know that this is the last time I will comment on this topic. If you want to edit anything I have written because you find it inflamatory or offense or in danger of dragging this little war of words out, please feel free to do so. It won’t hurt my feelings and, if you are just tired of dealing with this topic in the comments and don’t wish to post this at all — well, that’s okay with me too.

  13. Pingback: Copyright Laws & The Legal Genealogist

  14. Jana Last says:

    Judy,

    I want to let you know that your blog post is listed in today’s Fab Finds at http://janasgenealogyandfamilyhistory.blogspot.com/2013/11/follow-friday-fab-finds-for-november-22.html

    Have a great weekend!

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>