Not copyrightable
It’s the kind of information a genealogist may spend hours or days or even weeks ferreting out.
Hunting through courthouses and archival back rooms for county records that don’t exist that far back in time.
Trudging through court records that don’t even contain hints of marital status.
Sifting through a whole raft of utterly inaccurate family trees for clues.
All for the tiniest hint that might lead to the fact we want to prove — that Peter McCune married Christiana O’Brien in Monongalia County, Virginia, in January 1781.1
And once all the work is done and the effort put in, does the genealogist who uncovers the proof have the right to say: “this is my fact, I uncovered it, I can copyright it so nobody else can use it without my permission”?
Nope. Not in the United States.
Because the fact that Peter McCune married Christiana O’Brien in Monongalia County, Virginia, in January 1781 is just that.
A fact.
And, under United States law, facts can’t be locked up under a copyright.
On that point, the U.S. Copyright Office couldn’t be clearer: “Copyright does not protect facts, … although it may protect the way (they) are expressed.”2
The Copyright Office goes on to explain:
Originality is “the bedrock principle of copyright” and “the very premise of copyright law.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991) (citation omitted). “To qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author” and it must possess “at least some minimal degree of creativity.” Id. at 345 (citations omitted). …
Facts are not copyrightable and cannot be registered with the U.S. Copyright Office. “No one may claim originality as to facts … because facts do not owe their origin to an act of authorship.” Feist, 499 U.S. at 347 (internal citation omitted). A person who finds and records a particular fact does not create that fact; he or she merely discovers its existence. As a result, facts “are never original” and Section 102(b) of the Copyright Act “is universally understood to prohibit any copyright in facts.” Id. at 356. “[This] is true of all facts—scientific, historical, biographical, and news of the day.” Id. at 348.
For the same reason, theories, predictions, or conclusions that are asserted to be facts are uncopyrightable, even if the assertion of fact is erroneous or incorrect. See, e.g., Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 978-79 (2d Cir. 1980); Nash v. CBS, Inc., 899 F.2d 1537, 1541 (7th Cir. 1990).3
Now the way a fact is expressed — that can be copyrightable. Take our factual assertion about Peter and Christiana and think about it. There aren’t very many ways to say the fact. Peter married Christiana at a place and time. Christiana married Peter at a place and time. At a place and time, Peter and Christiana were married. It’s all the same fact, isn’t it?
And not copyrightable.
Now change it to this:
He was resplendent in a coat of blue, faced with red, and a “mcarnona [macaroni] hat such as soldiers wore.” She was just 14, so young that a witness to the wedding jokingly advised her to roll up handkerchiefs and stuff them in her dress to give herself the appearance of having breasts. The time was January 1781, the place Richards’ Fort in Monongalia County, Virginia – a dangerous time and place for a young couple to begin their life together. … But for Peter McCune and his child bride Christiana O’Brien, the dangers were for another day. This was their day, to join together, to celebrate…4
See the difference? That’s a whole different story, isn’t it?
So don’t go thinking that the Begats-type entries in our family trees are protected by the law. Names, dates, places — they’re facts, and not copyrightable in the United States no matter how much effort we put into finding the facts.
Only when we go beyond the facts into a creative expression will copyright come into play.
Cite/link to this post: Judy G. Russell, “Factually speaking…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 6 Jan 2021).
SOURCES
- See, generally, Christiana McCune, widow’s pension application no. W.7412, for service of Peter McCune (Pvt., Col. Gibson’s (9th Va.) Reg.); Revolutionary War Pensions and Bounty-Land Warrant Application Files, microfilm publication M804, 2670 rolls (Washington, D.C. : National Archives and Records Service, 1974). ↩
- U.S. Copyright Office, “FAQs: What Does Copyright Protect?,” Copyright.gov (https://www.copyright.gov : accessed 6 Jan 2021). ↩
- U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §§303, 313.3(D) (3d ed. : 2017); PDF online, Copyright.gov (https://www.copyright.gov : accessed 6 Jan 2021). ↩
- Judy G. Russell, Frontiersmen, Fighters and Farmers: The McCunes of Western Virginia (n.p. : p.p., 2012). ↩
Would it be possible to read your “Frontiersmen, Fighters and Farmers: The McCunes of Western Virginia”. I note that it is not published, was it a submission for your CG?
I always love reading your work and have family that was allegedly in Monongalia County in that same time period.
Thanks for all you do for the genealogical community. We are all a little better at it because of you.
Thanks for the kind words! It was for my certification work, yes, but then was privately published for the family on which it focused, so I don’t feel comfortable making it generally available just yet.
I wish this post would have been written about 30 years ago, when I was (I thought) working collaboratively with a person. Our families intersect rather closely so I freely exchanged my information with her, and she freely exchanged her information with me–or so I thought. I posted my tree on RW. She flamed me (badly and numerous times) on a Rootsweb list serve, saying 1.) these were HER ancestors and that 2.) I had stolen her work and 3.) she had promised “her people” that she wouldn’t post it on the internet. She said she was going to her lawyer. Everyone was very sympathetic to her, until I had to point out 1.) I only posted facts, 2.) I had researched many of those same ancestors and had gotten my own information and 3.) I never promised my ancestors I wouldn’t put them on the internet (we aren’t talking about living people here; only the dead ones were posted.) I sent her back her email to me with the family information in it she declared was “hers” and pointed out there were no caveats listed; and I would be glad to talk to her lawyer. Over the years, I have reduced my attributions to her work to a small handful of citations….and happily so. I would have loved to have cited this post, but I cited something else instead….I forget what. As you can see, it is still the raw wound taken by a baby genealogist.
People do get ridiculously proprietary over information that is truly free and available to all. I’m glad your frustration over this experience didn’t put you off from genealogy!
Judy G,
As you probably aware by now, I like to try and give your postings a UK slant where appropriate, as I suspect you have many readers on this side of the Atlantic also. American readers may choose to stop reading at this point!
Thanks to our former membership of the European Union, in 1997 Britain brought onto its statute book something called database right. This is a somewhat unique right which I don’t think many other nations outside the EU (and, somewhat surprisingly, Russia) have felt the need to copy.
A qualifying database is just a collection of data – some could be facts but equally opinons, images, sounds or fictional items could also be among the data. And none of the contents need to be in copyright, and the database itself does not necessarily need to be in digital format, although this format is the most vulnerable. All that is required for database protection (which lasts for 25 years from the point at which the database is completed), is that the maker(s) of the database must have expended a reasonable amount of resource (money, time, skill) in assembling, checking, ordering and presenting the data. That sounds pretty much like a description of what most genealogists spend their time doing, so not unnaturally, many family research results made within the European Union (and now, separately, the UK) will qualify for database right. This right sets out to protect against the extraction or re-utilization of substantial amounts of the contents of a database without permission from the maker, although nowhere does the word ‘substantial’ get a meaningful definition, other than that it can be measured in either quantitative or qualitative terms.
There is very little caselaw and certainly no landmark decisions to provide guidance on how database right should work in practice, quite possibly because so few people know about it, as compared to copyright, for instance. The intention behind the original EU Directive was to find a way to prevent the wholesale harvesting of expensively acquired data from one enterprise by a rival, where other existing intellectual property rights such as copyright, trademarks, design patents etc provide insufficient protection. For that reason I doubt if any indivdual genealogist runs a risk of infringing anyone else’s database right in the normal course of family history research, but it pays, at least, to be aware that such a right exists.
The compilation copyright is the closest analogy in US law — but even that requires some tiny spark of creativity. It will be interesting, when the EU/UK law finally gets tested, how close it is interpreted to the US compilation copyright. The essential difference between the two concepts is the “sweat of the brow” theory — recognized in Europe but not in the United States.
Thanks Judy. Another excellent and very useful blog post as was Andy J.’s comment about database rights in the UK. In Australia, as with the USA, we can’t copyright facts.
@Thereze.
Just to be clear, facts are not subject to copyright in the UK either. Database right is a stand alone right (referred to as sui generis in legal jargon).