Next in an occasional series on copyright — the family writings
When she died in 1976, reader Cassandra Chapman’s grandmother left behind some lovely writings. Some were inspirational thoughts, others her comments on the southern community where she grew up in the early years of the twentieth century.
The package of writings, some 100 pages or more in length, was first passed to Cassandra’s mother and, on her mother’s death some 30 years ago, to Cassandra.
And that is where the package has been, waiting, for this moment when the time seems right to have them see the light of publication. But, Cassandra worries:
There are no written documents or verbal communication, to my knowlege, to the family as to what would be done with the writings. What do I do with these papers? Of the three children of my grandmother only two grew to adulthood, my uncle and my mother. My uncle passed in 1972 (so) my grandmother’s only survivors are myself … and two brothers … Are those pages just to remain handwritten and stored away with the family? Can I or my brothers get them published? Please note that there was no will. Basically what can and cannot we do?
The answer here is pretty easy: Cassandra and her brothers can do with these writings whatever they’d like.
Remember that with family papers there are always two questions:
• Who owns the papers? and
• Who owns the copyright to the papers (if copyright is an issue)?
Here, the ownership of the papers is clear: they were passed from grandmother to mother to granddaughter. Assuming that Cassandra took possession of the papers with the knowledge of her brothers, then it’s a pretty safe bet that the law would say she owns the papers outright after having them for 30 years. But she considers herself a co-owner with her brothers, and that’s a fair view as well — probably more fair than the law requires.
So what about copyright? Is there one and, if there is, who owns it?
Because the grandmother died in 1976 and the papers were unpublished, copyright in the papers lasts for the life of the author plus 70 years.1 That means that copyright protection lasts until the end of 2046 on these writings.
So who owns the copyright? Cassandra’s grandmother left no will and no directions as to her writings, so she didn’t choose who had the rights she left behind. State law — the law of intestacy, which says what happens to property when there is no will — will fill in the gap.
And, fortunately, there is a very easy family situation to deal with in this case. Because there was no will, when Grandmother died, intestacy laws kicked in looking first for a surviving spouse (there was none) and then any surviving issue — children or grandchildren, for example.
Grandmother had only two children who lived to adulthood, Cassandra’s mother and her uncle. And the uncle died before his mother did — he died in 1972, his mother in 1976 — leaving no children of his own.
That means, under the intestacy laws of every state I know of, the only heir-at-law Grandmother had at the time of her death was her daughter, Cassandra’s mother. And when Cassandra’s mother died, her only heirs-at-law were Cassandra and her brothers.2
And that means that Cassandra and her brothers, together, have the right to choose among themselves what to do with Grandmother’s papers. They can publish them, donate them to an archive or library, divide them up among themselves.
Things obviously get more complicated when there are more heirs at law in a case like this. If Uncle had had children, then the cousins would probably all be joint heirs of the copyright and getting permission from everybody is harder.
Which is a lesson for all of us with our own writings, isn’t it? Who do we want making the decisions about our research papers and writings? Time to revisit the will, isn’t it? Especially about those early drafts we’d rather never saw the light of day…
SOURCES
- See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Information Center (http://www.copyright.cornell.edu/ : accessed 23 Jun 2013). ↩
- See generally “Intestate Succession,” Living Trust Network (http://livingtrustnetwork.com/ : accessed 23 Jun 2013). ↩
Interesting… when my grandmother died in 1984 she had 5 children living and numerous grandchildren. She had a will and her only son was to get all of her genealogy papers, photos, etc. along with her unpublished (handwritten) autobiography. He got them and several years later gave them to me. All of my cousins are aware that I have them. I’ve created a family booklet with some of the photos and typed up the autobiography and given each of the cousins a copy and have also published portions of it on my blog.
I assumed (which can be very dangerous, I know) that since my uncle had handed over that “stuff” to me that I had the “right” to do whatever I wanted with it. Am I correct in that assumption? Nothing was put in writing that he was giving me her papers/photos/etc.
Becky, if I were in your shoes, I would consider that my uncle had given me permission — a license — to deal with the genealogy papers and other documents on his behalf and on behalf of the greater family of which you’re both part. If you have an opportunity to get that permission in writing now, I’d do so, but I wouldn’t hesitate to continue to act on that conclusion until and unless some court told me I couldn’t. (And remember: I am not licensed to practice law in your state, I’m not giving legal advice, I’m just telling you what I’d do in your shoes, yadda yadda yadda.)
Thank you, Judy, I’m glad that you concur with my assumption! My uncle will probably laugh at me for even asking for written permission, but I’ll do it anyway…
Better he should laugh now than some cousin frown 10 years from now!
I have never heard of heirs-at-law until your post. You are exactly right about revisiting the will. I’d like to designate the receivers of all my genealogy work, plus some unpublished works of fiction. I’d better get on that!
My grandmother’s and my mother’s letters passed down to me. Quotes are included in my family memoir. I’m archiving them both. My sister and my cousins have never raised any objections . . . they are just as glad to leave it to me. My cousins could have claimed to be heirs-at-law, but they like what I did with my book. I think I “lucked out.”
Thanks for making all this so clear, as usual.
Most cousins won’t mind, Mariann. But you might want to get their permission in writing so it will protect the work after you’re gone too!
Hi Judy,
I want to let you know that your blog post is listed in my Fab Finds post this week at http://janasgenealogyandfamilyhistory.blogspot.com/2013/06/follow-friday-fab-finds-for-june-28-2013.html
Have a great weekend!
Thanks, Jana! It’s always an honor to be included!
If your grandmother was the receipient of letters from her sister, do you (as her descendent) have the rights to a published story of her sister based on those letters that were sent even if her sister has direct living relatives?
It depends on what you mean by “the rights to a published story.” If you’re asking if you can write a story about your great aunt based on her letters to your grandmother, then probably yes, but your case is stronger if you’re writing mostly about your grandmother and only secondarily about your great aunt. If you’re asking if you have the rights to a story written by somebody else based on the letters, no. And if you’re asking if you can publish the letters, they’re still protected by copyright if your great aunt died less than 70 years ago and you’d need the permission of your cousins to be completely safe from a copyright claim. (And as always a reminder that this isn’t legal advice, you need to consult an attorney in your jurisdiction, yadda yadda yadda.)
If I understand what you are saying; then the Civil War letters I have that were given to me by my Grandmother, (who died in 1970) that she had from her father ( who died in 1922)- a collection of letters written to him 1856 – 1890 by a number of family members, cousins and friends – should be beyond the copyright question.
Am I correct.
Jeannette
Most likely correct, but here’s the issue: the copyright in letters received by your great grandfather wasn’t owned by him but rather by the persons who wrote the letters to him. His receipt and ownership of the letters didn’t have anything to do with ownership of the copyright in the letters. That stayed with the writers. Those copyrights individually lasted 70 years after the death of each of the letter writers. So as to any of those letters written by a person who died before 24 July 1943 (70 years ago), the copyright has expired and you are free to use them as you wish. But as to anyone who died after that, the letter is still copyright-protected.
Thanks for talking about this complicated issue.
So how does putting old family photos (1890’s for example) in a blog that you have ‘owned’ for a long time fit in the copyright – as many other family members have the same photos?
Jeannette
If the image is out of copyright, then anyone who owns a copy can use it for any reason — so you could use it for your blog.
I have a question that is somewhat related to Jeannette’s question. What about letters if the writer died before 1943 but the letters were written in another country? Does the same 70 year rule apply? In my particular case the letters were written by family in Poland. I am the legal heir to my grandmother’s papers as they were left to my mother and then to me.
Thank you for such an interesting post.
Judy,
What about social media? I posted to a fb group a post of mine several weeks ago. A group that I was formerly associated with due to unethical leadership practices, posted and copied VERBATIM (today) my post to their page and took credit for it with no mention of me etc. 60 shares and tons of comments later and it’s still up. I’ve told them it was wrong, plagiarism and how they needed to proceed. I was lashed out at and the post is STILL up. I’ve taken screenshots of everything with proof. Can I have a local lawyer issue a cease & desist order? Is there anything I can do?
While this blog touches on the law as it affects genealogical research, it doesn’t and can’t offer legal advice on current issues of concern to individuals. See Rules of my road, 2017. You’d need to consult with an attorney licensed to preactice in your jurisdiction.