No, we can’t use it like that. Really.
There was yet another of Those Conversations on Facebook yesterday.
An individual had tried to upload a photograph to FamilySearch, and it had been bounced.
The information in the lower right corner — enlarged and enhanced by The Legal Genealogist below — made it abundantly clear why it had been bounced.
It wasn’t the uploader’s picture. It had been swiped from the BillionGraves website.
And so, the conversation proceeded, what the uploader needed to do was crop out the BillionGraves information and reupload. Or grab any image of the gravestone from FindAGrave and upload that instead.
Sigh…
No.
Just no.
What part of no do these folks not understand?
People, seriously, if it’s not our photograph and we don’t have permission, we can’t grab it and put it on another website.
First off, we’d likely be violating the copyright of the photographer.1
Second, we’d likely be violating the terms of use of the website where we found the photograph.2
And, third, we’d definitely be violating the terms of use of FamilySearch.3
Let’s take these one by one.
Copyright is legal protection given to the creator of an original work, like the person who takes the time to go out and carefully craft a good photo of a tombstone. Copyright law gives the photographer the exclusive right to say what copies can be made of that photo and what can be done with them for a very long time — the life of the photographer plus 70 years. For anyone else to use a copy of that photo, we need the photographer’s permission.4
In some cases, a photographer contributing to a site like BillionGraves or FindAGrave will make permission clear, by stating something like “You may use any photo I post for your personal research” or “You can use my photos but must give me and this website credit.” If we don’t see that, then we have to ask permission.
We can’t simply crop out the copyright statement and use the image anyway. That sort of action proves we knew there was a copyright and deliberately disregarded it — and that opens us up to what’s called statutory damages: a legal penalty of up to $150,000 under the federal copyright statute.5
Terms of use — or terms and conditions — are the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.6
Every website worth its salt has terms of use. Those terms set out what we’re allowed to do with the content on that website, and what our obligations are if we contribute content to that website. You’ll find these terms at every significant genealogical website: at Ancestry.com, at MyHeritage.com, at FindMyPast.com, and — yes — at BillionGraves.com and at FindAGrave.com which — as an Ancestry property — is governed by Ancestry’s terms.
Most sites allow some personal use of the content. Most limit or prohibit commercial use. And none of them wants its content downloaded piece by piece and reuploaded to another website. We need to carefully read the terms, and stay within them.
As for FamilySearch.org, yes, it too has terms of use and, when it comes to uploaded materials, its terms of use couldn’t be clearer:
You represent and warrant that you will not submit anything to this site that violates any third party’s rights (including, but not limited to, copyrights, privacy rights, publicity rights, contract rights, or other proprietary rights). Whenever you submit Contributed Content to this site, you are affirming that you have the legal right to submit that Contributed Content to us … You accept legal responsibility for our use of any Contributed Content you submit. You are solely responsible for all Contributed Content that you submit, post, or otherwise contribute to this site or to any other FamilySearch affiliated site.7
I repeat: if it’s not our photograph and we don’t have permission, we can’t grab it and put it on another website.
Really.
Cite/link to this post: Judy G. Russell, “About that swiped photograph…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 30 April 2021).
SOURCES
- See generally U.S. Copyright Office, “Circular 1: Copyright Basics”, PDF (https://www.copyright.gov/ : accessed 30 Apr 2021). ↩
- See, e.g., “BillionGraves.com Terms of Use,” BillionGraves (https://billiongraves.com/ : accessed 30 Apr 2021). ↩
- “FamilySearch Terms of Use (Updated 2019-12-10),” FamilySearch.org (https://www.familysearch.org/ : accessed 30 Apr 2021). ↩
- See generally U.S. Copyright Office, “Circular 1: Copyright Basics”. ↩
- See “Remedies for infringement: Damages and profits,” 17 U.S.C. §504(c). ↩
- See generally Judy G. Russell, “Reprise: a terms of use primer,” The Legal Genealogist, posted 29 Apr 2015 (https://www.legalgenealogist.com/blog : accessed 30 Apr 2021). ↩
- “FamilySearch Terms of Use (Updated 2019-12-10),” FamilySearch.org (https://www.familysearch.org/ : accessed 30 Apr 2021). ↩
Since you can link to billiongraves and findagrave on Family Search, there is no reason to bother with uploading the photograph.
What about an image of a census page used to illustrate a blog post? Would it have to meet the terms of use of the site you got it from?
Yes — you always need to comply with the terms of use for the website where you got the item even if it’s out of copyright. Note that Ancestry has no issue with using a census image to illustrate a blog post.
Judy – is it these two clauses that allow us to use a census image or something similar in a blog post? I have rarely used anything from Ancestry as I didn’t want to violate the T&C:
2.1…
Not to distribute, republish, or sell significant portions of any Ancestry Content; and,
To contact us to obtain our written permission if you want to use more than a small portion of individual photos and documents that are Public Domain Content.
I just want to be sure I fully understand. As a librarian, historian, and writer, I’m very careful of copyright.
Thanks 🙂
Those are the operative clauses in general, and for census records be aware that they are all public domain (US government documents created by federal employees for the federal government cannot be copyrighted).
Thank you for continuing to point out copyright issues and our obligations. Just because it’s on the web doesn’t mean it’s free to use.
I’m working on a project and have asked people in their local area to take photos for me: a photo of a public garden with an information sign, framed war medals in a Legion Hall, a photo of a lake named after someone, and signage at a war memorial. I will give photo credit to the photographer but do I need written permission from each of them to use their photos for publication?
It’s a very good idea to get written permission — email will do.
And if you re-use material in another way you should obtain permission for that other use too.
In my case I have obtained permission to use certain images in a family history with a few printed copies. But if I publish more widely, or on electronic media, I need to get permission for that extra use. In this case I guess that comes under terms and conditions. But it’s just politeness.
Permissions can be a big part of publishing, so budget a chunk of time for it. And sometimes people reveal yet another image they would be happy for you to use and you would not have found any other way.
Correct. Permission to do A doesn’t mean you have permission to do B.
Thank you for this article. I have been saying this to friends for a long time, but they don’t seem to believe me.
Still trying to figure out how/why the photo portrait of my great grandmother and her 4 children greets me every time I go to Family Search. We own the only copy. We are the only living descendants. I posted it on Ancestry, but clearly someone has uploaded it to FS.
Oh, so many questions. Why do you believe there is only one copy? What is the copyright status of the photo?
I believe (and if I’m wrong I hope Judy will correct me) that even if the original is out of copyright, the copyright of *the digital version* belongs to the person who digitized it. This is what watermarks are for; if it matters, there should be one smack across the middle of the image (to avoid the aforementioned cropping.) I won’t pretend to fully understand NFTs, but if you had questions regarding the value of a digital version of an artwork, the prices being paid should answer that question.
It’s unlikely that a digital copy could have an independent copyright. What’s effectively only a copy of someone else’s work doesn’t qualify for its own copyright.
The majority of the census images I have are from the UK and Canada, not the US. Will check into the copyright for those as well. Thanks for the info 🙂
In the UK and Canada documents like the census are subject to Crown Copyright – almost the exact opposite of the sitaution in the USA which Judy explained above.
The duration of Crown Copyright differs between the UK and Canada: In the UK it lasts for whichever is the smaller period of 125 years from the date the document etc is created, or 75 years from the date it was first made publicly available. In Canada, unpublished Crown Copyright is theoretically perpetual, but once an item has been published it enters the public domain after 50 years.
That said, in the UK in recent times an Open Governement Licence has been made available for a very wide range of items which are subject to Crown Copyright. More details here.
Thanks, Andy – very useful info. I will definitely check out the link. Appreciate your help.
This happened to my daughter today. She’s a photographer, and a local real estate agency took a picture from her Instagram account and posted it on their Instagram account. They tagged her, apparently believing that giving her credit for the photo was sufficient. It took two phone calls and the use of the words “theft of intellectual property” to get them to take it down.
I was about to use a picture of a hawthorn flower from Wikimedia Commons, thinking all photos are available for free use, and saw this: “This file is copyrighted and has been released under a license which is incompatible with Facebook’s licensing terms. It is not permitted to upload this file at Facebook.” That’s the first time I saw that! Link: https://commons.wikimedia.org/wiki/File:(MHNT)_Crataegus_monogyna_-_flowers_and_buds.jpg
All photos in Wikimedia Commons have indeed been released by their respective copyright holders under a “free license”. In this case, it is the Creative Commons Attribution-Share Alike license, which allows you to reuse the image as long as you attribute the author and don’t “privatize” the image or any changes you have made in it (you need to keep it in “the commons”).
The problem some contributors were facing was that Facebook’s terms of use require that “you grant [them] a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post” – and that is something you are not entitled to if you are not the content creator (in this case you have only been apriori allowed to reuse the content by its author, but that does not mean you can license it to others). So people who put up this warning next to their photos (N.B. it is not an extra rule, just their interpretation of how the various rules interact) did so in an effort to explicitely warn potential Facebook reusers that what they were going to do might be illegal.
Interestingly enough, it seems that WIkimedia Foundation’s (preliminary) legal perspective in this matter has matured to the point that they currently do not think there is a problem: https://meta.wikimedia.org/wiki/Legal/CC_BY-SA_licenses_and_social_media It says you may still be breaching Facebook’s terms of use by stating you can provide a license while you cannot, but that the Creative Commons license can effectively be adhered to if you provide the necessary attribution information along with the work you share. See some extra guidance here: https://creativecommons.org/2020/06/15/sharing-openly-licensed-content-on-social-media/
That doesn’t resolve what appears to be inconsistent information about this specific photo, which does have the statement Paul references on Wikimedia Commons.
Definitely, the current state of that photo’s terms is a mess. However, it has clearly been released under a CC BY-SA license. The “not permitted to upload at Facebook” is not a license, but just the author’s interpretation of Facebook’s license terms and their (in)compatibility with Creative Commons. I understand this is probably not very clear to the public, and I suspect the author chose this particularly language specifically to intimidate potential social media reusers due to his personal dislike of Facebook.
However, Wikimedia Commons contributors are not allowed to add any such exceptions to the few public licenses permitted in the project. Specifically, “[r]estrictions on where the work may be used” are not allowed as per https://commons.wikimedia.org/wiki/Commons:Project_scope In my opinion, all this makes that statement void, and it indeed seems that it is going to be rewritten so that it no more sounds prohibitive:
A “deletion request” in relation to these notices has been open since October 2020, but it is a slow but steady process, as everything on Wikimedia. See: https://commons.wikimedia.org/wiki/Commons:Deletion_requests/NoFacebook_templates I have just contributed to that discussion and also linked to this discussion in another appropriate place, so that project contributors realize that this issue has been confusing people and should be resolved soon. However, as Wikimedia projects are collaborative, consensus must be reached through a public discussion, which takes time.
In the meantime, I urge Paul to carry on with his intention, particularly if he was already uploading CC licensed media to Facebook before.
Another twist to stolen photos is when an image is taken from your website and then submitted to Creative Commons to be used free and clear. I don’t even know how to track this to the individual who stole the image, but my dog’s gorgeous face is a money maker for a lot of businesses.
Wasn’t there a problem with Billion Graves where they “CC” all the Find a Grave photos that family members had posted? Thanks
No, it was another site. See https://www.legalgenealogist.com/2018/09/25/some-progress-in-findagrave-image-appropriation/
I have made a blog and use only original pictures, now I see that some bloggers have used my picture. The pictures are a subject to copyright so I can definitely file a case now. I will ask the blogger to remove it else I think I will need the help of the legal aid in Brisbane. This post is very helpful. I know the basics now. Thank you
You have every right to demand they take the images down if they’re your original work.