The law and ethics of donating family materials
Two reader questions have just hit The Legal Genealogist‘s emailbox presenting opposite sides of the issue when it comes to donating family materials and photos to libraries, archives or other repositories.
Reader Sharon was the recipient of letters, written by others, sent to her more than 50 years ago. She isn’t planning on publishing them, but notes that they’re interesting and it’d be “a shame to lose this history.” Some of the letter writers are still living; none has been deceased 70 years yet. So Sharon wants to know if she’s the legal owner of the letters and has the legal right to donate them to a university or archives. She notes, wryly: “I won’t be around 70 years after the person(s) pass away and my descendants certainly won’t likely be keeping them for 70 years.”
Reader Catherine has the exact opposite problem. She bitterly opposes the plan of a cousin to donate papers and photographs to a repository in the cousin’s state that include Catherine’s childhood photos taken by her parents (not the cousin’s) and, she suspects, letters from her parents as well. The photos don’t include the cousin or the cousin’s immediate family members at all. She notes: “I don’t want strangers pawing through my family’s photographs (or personal, private, unpublished letters).” The cousin won’t back down on the plan, and Catherine wants to know what her options are.
Ouch.
Talk about a clash of values.
And it’s one that really is confusing.
Here’s why:
The person to whom the letters and photographs were sent is in fact the legal owner of those letters and those photographs and has the right to keep them, give them to another person, or donate them to a library, archive or other repository. On a superficial basis, that takes care of both Sharon’s question and Catherine’s question.
But…
That person doesn’t own the copyright on those letters and photographs. And that gives Catherine some legal power here — and poses an ethical (and practical) issue for Sharon.
Let’s go back over the basics here.
First and foremost, we need to remember what’s eligible for copyright protection and what isn’t. Copyright law protects “original works of authorship fixed in any tangible medium of expression.”1 That definition doesn’t include “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”2
So it’s clear (or it should be) that, under the law, these items — these letters and photographs — are covered by existing copyrights. Because they were “original works of authorship fixed in any tangible medium of expression,”3 the letter writers and photographers had full copyright protection on them and copyright in unpublished works lasts for 70 years after the death of the creator.4 And in all of these cases, the letter writers and photographers have not been deceased for 70 years.
Second, we need to understand that owning specific physical items — those letters and photographs — is entirely separate and apart from owning any copyright there may be in the items. The U.S. Copyright Office emphasizes that: “Mere ownership of a copy or phonorecord that embodies a work does not give the owner of
that copy or phonorecord the ownership of the copyright in the work.”5
That distinction — between owning the thing and owning the copyright covering the thing — comes right out of federal copyright law:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.6
In other words, Sharon is the legal owner of the physical copies of the letters sent to her. She has a legal right to donate them to any archive she chooses. Catherine’s cousin is now the legal owner of the physical copies of whatever family letters and photographs the cousin now has, and has a legal right to donate them to an archive.
But neither Sharon nor Catherine’s cousin owns the copyright to those items. Neither of them can give the archive more rights than they themselves have.
And that poses an ethical and practical issue for Sharon — and an opportunity for Catherine to be heard on her objections to the cousin’s plan.
Ethically, Sharon should disclose to the archive that she is only donating the physical copies of the letters she received and not the copyrights to those letters. The practical concern is that may very well stop the donation dead in its tracks. In many cases, an archive will require an assignment of rights (including copyright) before accepting materials for donation.
Sharon’s solution: get permission from her correspondents, in writing. Whatever archive she’s considering will likely have a form for the letter-writers to sign. Or — an option that’s frankly less likely — she may work out with the archive to accept the letters for safekeeping, knowing they can’t be used free of copyright constraints for decades to come.
Catherine, on the other hand, can raise whatever copyright interest she herself has as the daughter of the photographers and letter-writers in her case, since copyrights are personal property that can be inherited.7 She will of course need to consult with legal counsel of her own to determine just what rights she has but can then raise those rights with the cousin and even directly with the archive to which the cousin is planning to donate the copyrighted materials.
The cousin’s solution, if the cousin wanted one, would be to work out an agreement with Catherine to donate the materials with restrictions on their use for a time — even for the life of the copyright.
Great questions, from two very different viewpoints, that underscore the distinction between ownership of the thing and ownership of the copyright to the thing.
And more importantly, the questions help all of us focus our attention on the balancing act we as genealogists always have between wanting to share materials widely and ensure that they’re not discarded or lost on one hand — and the rights and privacy interests of others on the other.
The law and ethics of donating family materials can be very different — just because it’s legal doesn’t mean it’s right.
Cite/link to this post: Judy G. Russell, “Giving it away,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 21 May 2020).
SOURCES
- 17 U.S.C. § 102(a). ↩
- U.S. Copyright Office, “Copyright in General: What does copyright protect?,” Copyright.gov (https://www.copyright.gov : accessed 21 May 2020). ↩
- 17 U.S.C. § 102(a). ↩
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 4 (https://www.copyright.gov : accessed 21 May 2020). ↩
- Ibid., PDF version at p. 3. ↩
- 17 U.S.C. §202. ↩
- “Ownership of a copyright . . . may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.” 17 U.S.C. § 202(d)(1). ↩
OK, I understand (or think I do) what you have said here. Now let me ask a related questions: I own two original portraits. One, my 3g-grandmother, was painted about 1835 and has been in my direct family since. The other is of her grandson (not my direct ancestor) and was painted in 1852 in England by a prominent French portraitist; it passed from the subject’s family 50 years ago and was held by a museum for several decades prior to being de-accessioned and bought by me at auction. Obviously the artists and the subjects are long gone. The photo of the first of these was provided to a cousin some years ago and was posted by her (without asking any “by your leave” from me) to Ancestry.com and now appears “attached” to multiple family trees. What are my rights, if any, regarding either portrait or photographic copy of the portraits? How do my rights differ, if they do, from say, the National Portrait Gallery and their Gilbert Stuart portrait of George Washington? If I elect to donate these portraits, what rights will I convey?
You own — only — all the rights to possession and use of the original portraits that you have. You don’t own the copyrights on any of these because the painter has been deceased for much longer than 70 years.
So does that also mean that the Smithsonian, the Metropolitan, or any private collector doesn’t own the copyrights on any of the old art they own, and that I can make and sell copies without any concern for the implicit threat of legal action behind their claims of “all rights reserved” or similar statements? (no, I have no such intention . . . ) And how does that square with your comments that “an archive will require an assignment of rights (including copyright) before accepting materials for donation” ??
Yes and no. Yes, it does mean they do not own the copyrights on materials created many decades ago, where the creator has been deceased for more than 70 years. No, it does not mean you will be able to make or use a copy of their materials. The difference is in the law involved: contract (can you access this item held by this repository and make a copy there) or copyright (can you use a copy you have acquired)? A museum that holds the one and only copy of a 500-year-old document can put any limits it wants on access or use of that document, not because of copyright but because it owns the one and only copy and it will contract with you to see it. If the material IS copyrighted, then the archive needs to own the copyright or have a license to use it, which is why archives usually won’t accept what they can’t get the rights to use.
Do the rules differ with the date of the creation of the letter or photograph, say 1920, 1945, 1970, as they do with published works?
The date of creation isn’t significant for unpublished materials. For unpublished materials, copyright ends 70 years after the creator’s death, no matter if it was created when the person was one year old or 100 years old. The term is life of the creator plus 70 years.
You are such a strong advocate of doing the right thing as far as the law and ethics are concerned, that I was surprised that when I clicked on the link to read your article in my web browser it put up a banner at the bottom that said ‘We use cookies on this website to ensure that the site will work properly on your web browser together with improving the site’s performance. If you click “Yes, I agree”, you are agreeing to our use of cookies.’ The two choices were “Yes I agree” and “Privacy Policy”. I wanted to know what I was agreeing to, so I clicked on “Privacy Policy”. Instead of showing me the Privacy Policy, it just put up the whole page with the same cookie message again in another tab. This does not seem to be an appropriate way to do things.
You’re right that it isn’t working correctly — the plug-in I use isn’t properly redirecting and I’ve asked the plug-in folks to help me figure out why (since I have the settings correctly set). Thanks for letting me know. (I’ve fixed it as a workaround, but if for any reason it doesn’t work now, then in the meantime, the Privacy Policy is properly linked at the bottom of the home page if you’d care to look at it.)
Thanks. I thought that you should know.
Thanks, I hope you tested it after my comment because I think it does go to the right page now.
I also have a related question. My family has had a family archivist since 1880 and I received all these records in 2007. My predecessor used to material to create and publish several family genealogies. When I received these original works after his death I requested his wife provide me a document giving me the right to publish/give away copies of these documents. Would that be sufficient to mean I now own the copyright? Asking for opinion, not legal advice…
I have viewed such items in an archive. I had to give my reasons for wanting to view the items and I could transcribe anything but I could not have copies without express permission from the archivist who had been instructed regarding the family’s wishes. This family is well known in the area and have been business owners since 19th century.I had to give her a good reason for wanting copies and I was not allowed to copy anything where those family members were still alive. I gathered from the archivist that once everyone has passed on then it may be different. Items included photo albums, mourning cards, personal letters, business records etc. I was allowed to copy one personal letter from 1841 to my 2 GGgrandfather from his grandfather i n1841 – that was a thrill to see.
I can’t even imagine how cool that must have been!!!