Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, August 4, 2015

The Value of Special Collections

Almost every major university and college library in the United States has a section of the library dedicated to "Special Collections." I was recently working through a list of useful websites from my cousin, Van Celaya, who teaches at the Riverton FamilySearch Library in Riverton, Utah and sometimes at the Brigham Young University Family History Library. I ran across a website called "" The idea of this website is to removes the top one million (or fewer) websites from a Google search. I tried it out, using my Great-grandfather, Henry Martin Tanner, as a search term.

I found that the results were very interesting and brought me to the subject of this post. Here are a few of the really interesting websites that the search found. I might add, that normally, when searching directly with Google, I do not see this kind of entry at all:
  • MSS SC 765; George S. Tanner Collection; 19th Century Western and Mormon Manuscripts; L. Tom Perry Special Collections, Harold B. Lee Library, Brigham Young University. Following citations: MSS SC 765, LTPSC.
  • George S. Tanner papers, Accn 1361, Box [ ]. Special Collections and Archives. University of Utah, J. Willard Marriott. Salt Lake City, Utah.
  • MSS 1565; Thomas Parkinson Family Collection; 19th Century Western and Mormon Americana; L. Tom Perry Special Collections, Harold B. Lee Library, Brigham Young University.
  • Tanner, George S. (compiler). George S. Tanner, 1876-1977 . George S. Tanner Collection, Northern Arizona University, Cline Library, Special Collections and Archives Department.
You should note that each of these major collections of documents and letters is in a university library's Special Collections section. 

First, I realized that it might be interesting to search for more about my ancestors with an added search term: special collections. I began to find a lot more items in the Special Collections libraries around the country. I added the following libraries to my list:
By making this one search and adding the term "special collections," I was off on a whole new level of discovery of documents, some of which were located downstairs from the BYU Family History Library, where I frequently serve.

Now, there are 629 public 4-year institutions in the United States, 1,845 private 4-year institutions, 1,070 public 2-year institutions and 596 private 2-year institutions. See Number of U.S. Colleges and Universities and Degrees ... When you consider the fact that the information about my ancestors, who lived in Utah and Arizona, was beginning to be archived all over the country and in distant locations in both states, it should illustrate the need to expand your searches for information about your ancestors. You may have never considered finding extensive historical information in a distant university or college, but my illustration above is a word to the wise. 

Monday, August 3, 2015

Commercial vs. Non-Commercial Genealogy

I recently viewed a summary of a locally held genealogy conference where the presenters were praised for their presentations. I was interested to hear the comments about these "genealogists" because the focus of the comments and the ratings of the presentations were based on the success of the presenter's business enterprises. The comments made about the conference and the specific presentations were not so much about how valuable the information was to the genealogical researchers attending the conference, but rather how successful the presenter was as a business person. In short, the attention given to the presenter was measured not by the value of the presentation, but more by the value of the presenter's occupation or business associations.

There is no real measure of the "success" of a genealogical researcher. Some of the most obscure and unknown people involved in genealogy are the most skilled at research. But if that a person is employed by a major corporation or has their own successful genealogy-related business, then, of course, they are considered more skillful and more authoritative than the quiet, unobtrusive researcher. This is equally true for those who are entertaining presenters. Sometimes, genealogical expertise and the ability to entertain an audience go hand-in-hand, but they are more commonly exact opposites. It is rare to find a person who can sit in a library day after day and do research that is also an entertaining teacher.

I have seen the same phenomena in law and business. However, I am not so sure that success in convincing judges and juries and making lots of money has anything to do with genealogical research. Genealogy conferences obviously rely on "sponsors" and it is natural that the sponsors' representatives get top billing at the conferences. This does not mean that any of the sponsored presenters are particularly expert in genealogy. What I have found is that "going on the conference circuit" drastically limits the amount of personal, serious research I can do.

Now, I am not in any way against the commercial side of genealogy. Most, if not nearly all, the technological advancements and the increased availability of original sources are attributable to commercial or large non-profit enterprises. Many of the best tools we have to do genealogy today are the results of successful businesses making excellent products. My observations are directed more at the genealogical conference phenomena. One example is the "keynote" speaker phenomena. The conferences try to attract a famous or infamous person to boost attendance. Conferences, in general, have a variety of purposes, but unless the sponsoring organization has an agenda that coincides with the conference objectives, they are not likely to keep having an event that loses money year after year.

Part of the strategy to cover costs is to attract entertaining and prominent people to "present." Hence, the presenters at larger conferences receive a "rating" dependent not only on the comments of the attendees, but also on the number of people that attend a given class. More popular presenter's classes are jammed, while often those with more valuable information, but less popularity, are poorly attended.

There are probably some who will argue that the popular presenters are popular because people get what they come for, that is, information. But I would note that some of the presenters at the larger conferences, really have no background or special knowledge about genealogy. Many have risen to prominence because of their association with a particular institution or company. Some are purely entertainers and have no association with research or genealogy at all. So the genealogy conference becomes a show with ratings like movies or TV series.

Those who are attracted to the conference circuit have to decide if they want to spend time preparing and attending the conferences or pursuing genealogical research. Sometimes, that decision is made for them by those who select the participants and arrange the schedules for the conferences. Some of those who believe their job is to educate and teach, soon find themselves on the periphery of the conference, scheduled at odd hours and with less than desirable physical facilities.

I would contrast that sort of environment to the teaching that went on week after week at the Mesa FamilySearch Library (when it was in operation) and the teaching that goes on day after day at the Brigham Young University Family History Library. For the most part, with some limited exceptions, the teachers are not paid employees or associated with any commercial enterprises. They teach because they love to teach. The classes are not judged on attendance and if only a handful of people show up, the class proceeds as planned. Currently, the classes at the BYU Family History Library attract about 100 plus people each set of class sessions. This would be considered a disaster for most conferences, but having this many people each session is considered a success. The reason is that the goal is to teach, not make a profit.

Most of the questions raised by the students are answered in one-to-one consultations with the volunteers (missionaries) that serve at the BYU Family History Library.

Realistically, there are some heads of companies who are knowledgeable about genealogy and there are some obscure researchers who are not at all good at what they are doing. But my point is that conferences involve a different set of dynamics than are evident and needed to do really good genealogical research and it is only, perhaps by chance, that the two dynamics coincide.

A Steep Uphill Battle
One of the latest Pew Research Center studies has an article entitled, "15% of Americans don't use the internet. Who are they?" The factors they found that most influence Internet activity include the demographic variables of age, educational attainment, household income, race and ethnicity, and community type.

Guess what? I find that involvement in genealogical research is dependent on the same factors. Although my impressions are not based on a scientifically structured study, I have come to the same conclusions. Here are the key reasons for lack of involvement from a 2013 Pew Research survey:
A 2013 Pew Research survey found some key reasons that some people do not use the internet. A third of non-internet users (34%) did not go online because they had no interest in doing so or did not think the internet was relevant to their lives. Another 32% of non-internet users said the internet was too difficult to use, including 8% of this group who said they were “too old to learn.” Cost was also a barrier for some adults who were offline – 19% cited the expense of internet service or owning a computer.
Even though I live in an upper-middle class neighborhood, because of my interest in genealogy, I tend to associate more with the over 65 population. I hear exactly those excuses from my associates when I question them about involvement in genealogy. Despite recent efforts to "involve the youth" in genealogical research, I still see the preponderance of the involvement deeply entrenched in the older generation.

Here we see the major problem. Genealogy is becoming saturated with technology with digitization efforts adding tens of millions of records every week to the online repositories. Attempts to conduct genealogical research from a paper-based standpoint are extremely limited and becoming even more so. For example, when was the last time you used a paper-based library catalog? The people who are most likely to be interested in their genealogy are also the people who are least likely to be sufficiently involved with computers and the Internet to even know where or how to start.

I see almost no increase in the involvement or activity level of the youth in genealogy, although I do see an increase in adult participation over time. My observations come from being in a major genealogical library day-after-day, week-after-week. You might argue that my viewpoint is skewed because now the youth can do it all online. But then, I argue, that if there were an actual increase in genealogical research, those doing the research would eventually need to come to a library to continue their investigations. I have seen this time after time as those I am helping run out of online resources. I also run out of online resources and have been spending time recently reviewing microfilm. This primarily happens whenever I am searching more than a hundred years or so into the past.

To summarize, genealogical research is the recent era, nearly saturated with online resources. Online access and the ability to do research online are almost essential to starting a pedigree. However, this saturation extends only a short distance into the past. Researchers will inevitably need resources that are not presently online. This front-end problem of Internet access is a barrier to the older populations involvement in genealogy and those are exactly the people who would be most interested.

I have some suggestions. First, I would focus more on helping the older population gain computer and online skills. This will increase the number of people who are most interested in genealogy and therefore expand the overall involvement. Second, I would continue the efforts to move as many records as possible to the Internet and make them more freely available. This will allow those who believe that "all the genealogy records are online" to do research further back in time. My last suggestion is more complicated.

One of the barriers to involvement by both the youth and those who are much older is the scattered nature of genealogically important records on the Internet. Even though the youth have the computer skills to access the Internet, they are sadly lacking in research skills and the interest to keep searching. I have seen a glimmer of hope in this regard. Brigham Young University has implemented a "myFamily History Youth Camp" which appears to be about the best idea yet for helping the youth become involved. Here is the description of the camp from the website:
This is a four-day camp where youth ages 14–18 can come to BYU and be taught the fundamentals of family history research, gain hands-on experience, and acquire an understanding of the importance of this work. We hope this camp will prepare all participants to be independently motivated to continue working on their own family history and to inspire and assist those around them with their family history. Participants will leave the camp prepared to serve as family history consultants, if called to do so. This camp is for students who are seeking a BYU experience and are willing to take an active role in helping individuals in their quest for eternal life as families. We also believe this camp will provide valuable and fulfilling employment opportunities for BYU students interested in family history. is trying to do the same thing for adults. Here is the description from their website:
Come to Salt Lake City for a unique onsite learning experience at the Family History Library! You will receive one-on-one research guidance. Enjoy an extensive classroom experience, where in-depth research skills are taught. We help you locate and use record sources beyond the basics. Bring your personal research and let our pros give you assistance that makes a difference! Click here for testimonials.
Now, we just need to figure out how to motivate those with the time and the money needed to take advantage of these opportunities to do so.

Sunday, August 2, 2015

What Constitutes Publication in a Copyright Case -- Part Two

Two of the least understood and usually badly confused areas of copyright law are the issue of whether or not a work has been published and the subsequent fair use doctrine. Publication and fair use are called "doctrines" because the bulk of the law comes from court decisions. There is very little statutory law defining either what is a publication of a work or what is fair use of a work. In my first installment of this series, I started to write about the issue of publication in the area of copyright law. This post continues that series.

All my disclaimers in the previous post still apply. I would note that over the past couple of years, there have been a number of online references from genealogy bloggers about the issues involved in deciding the copyright protection of photographs, documents, letters, journals or whatever inherited from some ancestor. My perception of these posts is that in almost all cases, they give an opinion without explaining the real legal issues involved. There are both practical and legal considerations when approaching the issues raised in publishing a work (i.e. photograph, journal, diary, letter etc.) created by an ancestor or anyone else in the past. That is the reason for this series and will likely be the basis for a series on fair use.

If you find yourself in a situation that involves a copyright issue or any other legal issue, I would suggest seeking legal advice from a competent attorney who practices in the are of your concern. Do not rely on either self-help websites or any general discussions about the law (such as this series of posts) in deciding the merits of any specific legal issue.

The major problem in writing a general discourse on the law, is that the application of the law is fact specific. Every case or controversy that comes forward is unique. I can speak of generalities all day and never answer one specific question. I can show you how the law works, but I cannot predict, nor can anyone else, exactly what will happen if any particular fact situation and the legal issues pertaining to that specific situation were to be decided by a court action. It is not unusual, as I have learned over and over again, for a judge to disregard precedent and decide to change the way the law is applied in a specific case. It is also not unusual, as shown by some of the more prominent recent decisions of the U.S. Supreme Court, for the highest court in the land to decide to change the law. In this way, law is often less predictable than the weather. But as President Harry Truman is reported to have said, "If you can't stand the heat, get out of the kitchen."

Before we get too much further into this subject, it is important to understand the term, "work." In copyright law, the word "work" is used in its broadest sense. I am back to the Copyright Law of the United States and Related Laws Contained in Title 17 of the Unites States Code aka Circular 92. Title 17 of the USC (United States Code) has a lot to say about various "works" but never actually defines the word. The closest idea about the definition of a work is contained in Section 102 as follows:
§102 · Subject matter of copyright: 
In general 
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
In short, the term "work" is used collectively to refer to anything original that is "fixed in any tangible medium of expression." The word "tangible" has been extended to computer programs and online images and writing. Sub-section (b) expresses the limitations of what is not included as a work. As you can guess, this definition give wide latitude to those who want to argue about the law and its application to any given fact situation.

Let me start with a quote from a journal article entitled, "Copyright Publication: An Empirical Study" by Deborah R. Gerhardt an Assistant Professor of Law at the University of North Carolina School of Law published in the Notre Dame Law Review, Vol 87, No. 1, 2011.
Notwithstanding the dispositive importance of “publication,” the copyright meaning of the term is not clear, and can be difficult to pinpoint. Especially in cases involving non-textual works or original documents, the moment of publication is not often apparent. Another source of ambiguity is that “publication” has a specific meaning in copyright jurisprudence that can be different from a lay understanding of the term. The ambiguous nature of “publication” in copyright law can lead to results that appear to defy logic. A unique sculpture or painting displayed in an art gallery may be found to be “published,” while Martin Luther King’s “I Have a Dream Speech,” though broadcast internationally and reprinted in news media, was found to be “unpublished.” [See footnotes in the original].
Gerhardt, Deborah R., Copyright Publication: An Empirical Study (December 1, 2011). Notre Dame Law Review, Vol. 87, No. 1, 2011. Available at SSRN:,
This 70 page article is a valuable starting point for understanding the ambiguous and contradictory court decisions on publication as it applies to the acquisition of copyright protection. I suggest that anyone who wishes to obtain any insight into the issue of publication, read the entire article. In addition the author has added extensive footnotes with numerous valuable sources.

Beginning with the Copyright Act of 1976, all works were and are protected from the date of creation. Therefore, with regard to works created after the effective date of the Act, January 1, 1978, the issue of when publication occurred is moot. Additionally, with the adoption of the Berne Convention by the United States on March 1, 1989, all works subject to copyright in the United States became automatically protected upon creation whether or not a notice of copyright claim was included on or in the work. Here is a quote from the U.S. Copyright Office regarding International Copyright protection:
There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the world. Protection against unauthorized use in a particular country depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions. There are two principal international copyright conventions, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the Universal Copyright Convention (UCC). 
The United States became a member of the Berne Convention on March 1, 1989. It has been a member of the UCC since September 16, 1955. Generally, the works of an author who is a national or domiciliary of a country that is a member of these treaties or works first published in a member country or published within 30 days of first publication in a Berne Convention country can claim protection under the treaties. There are no formal requirements in the Berne Convention. Under the UCC, any formality in a national law can be satisfied by the use of a notice of copyright in the form and position specified in the UCC. A UCC notice should consist of the symbol © (C in a circle) accompanied by the year of first publication and the name of the copyright proprietor (example: © 2006 John Doe). This notice must be placed in such a manner and location as to give reasonable notice of the claim to copyright. Since the Berne Convention prohibits formal requirements that affect the “exercise and enjoyment” of the copyright, the United States changed its law on March 1, 1989, to make the use of a copyright notice optional. U.S. law, however, still provides certain advantages for use of a copyright notice; for example, the use of a copyright notice can defeat a defense of “innocent infringement.”
For genealogists, these changes only make the determination of copyright coverage for older works (documents, photos etc.) that much more difficult. For all works created before 1978, we still have to be concerned with the issue of publication. This determination can only be made on a one-by-one basis. There is no general rule that will apply in all or even most of the cases.

As I have mentioned several times in the past, a good place to start any inquiry is the Cornell University, "Copyright Term and Public Domain in the United States 1 January 2015," chart. However, with respect to the issue of publication, the Chart is only a starting point. The extreme position, and apparently that advocated by some genealogists, is that everything is copy protected and the risk to use any old photo or document is too great. Of course, this position would effectively paralyze genealogical research. I suggest a more moderate view.

Before getting too upset with the whole process, look closely at the Cornell Chart. Any unpublished work, under any circumstances or eventualities, will be out-of-copyright and in the public domain if the author died before 1945 and the work was created before 1895. If you are still concerned, I suggest following the footnoted requirement that:
Presumption as to the author's death requires a certified report from the Copyright Office that its records disclose nothing to indicate that the author of the work is living or died less than seventy years before.
The requirement is further explained by the Copyright Office as follows in Circular 92:
(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire. — In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person's interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation.
The Circular goes on to explain:
(e) Presumption as to Author's Death. — After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefit of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title.
What does such a report cost? Here is the schedule as of the date of this post:
Searches of Records
Estimate of search fee (credited to search fee)$200
Search report (per hour, 2 hour minimum)$200
Expedited report (surcharge per hour for first two hours plus $200 per hour base fee)$300
Each additional hour in addition to the charge for the first two hours (three-hour search is $200 + $200 + $300 + $300 + $500)$500
Certification of search report (per hour)$200
Looks like a classic situation where the genealogist needs to do some research into the date of death of the author (photographer etc.). OK, so let's suppose you find an old photograph. When was the photo taken? See, more research. Who made the photograph? Once again, more research. Realistically, let's suppose that you have a family photo, taken in the 1920s. Is there a copyright issue? Well, yes, but the question is more a practical one than a legal one. Let's further suppose that the photo was taken by a family member. Who "owns" the copyright? Was the photo published? From all I have written, I would suggest that neither of these questions can be determined definitively. So there is a risk that some one will make a copyright claim. You need to evaluate the risk and decide what you are going to do with the photo.

There is no certainty and anyone who tells you otherwise is misinformed. Before 1989, remember that a notice of copyright on the work was necessary for protection. But, the publication issue still exists.

For the previous installment of this series, see

Friday, July 31, 2015

About Books and Libraries and Such

In the 1980s, I was involved in a retail computer business called Mesa Computer Mart. We were an authorized Apple Computer dealer and the business grew rapidly. Of course, during that time period and continuing to the present day, technology was rapidly advancing (changing or whatever). As we operated the store, almost every day we asked the same question: "What business are we in today?" We had to make changes very rapidly to stay up with the market.

Unfortunately, the changes we faced were not only technological in nature, but we also faced fundamental market changes. Beginning in about 1992 or so, all of the computer manufacturers were facing market demand that far outstripped their ability to manufacture their products. Companies like Apple nearly went out of business, not because of technology but because they could not produce their products fast enough. At the store, we had back-orders on computers that were replaced by new models before our back-orders could be fulfilled. Part of this change was caused by the appearance of "big box" stores such as what ultimately became BestBuy and Costco. Now those same "big box" stores are threatened by online distributors such as

Shortly after 1993, Mesa Computer Mart had to close down. Within a very short time, nearly every dedicated computer store and nearly all of the chain stores went out of business. The last one to go in Mesa was CompUSA.

What has this got to do with genealogy? Plenty. I have been seeing a background of heated genealogical community discussion about moving the Arizona State Library's Genealogy Collection from the State Capital to the State Archives. There have been a very few mentions of the issue in the local Arizona newspapers. Here is a quote from the a news article dated 30 July 2015 and entitled, "Our View: Close Arizona's genealogy library? Good Idea."
The genealogy collection averages three visitors a day. The only person in Arizona Republic photographs taken at the library Tuesday was a librarian. The room was otherwise empty. Many of the holdings have not been touched in years. 
It’s hard to justify keeping the place open. Yet genealogists, like anyone else enjoying a service at taxpayer expense, passionately complained. But in doing so, they only supported Reagan’s move. The governor’s office reporting getting 93 emails; Reagan received 50. That’s little more than a whisper.
What are they all talking about? Quoting from the same article:
What’s in Arizona's genealogy collection?
  • 20,000 items, including books, manuscripts and newsletters.
  • Reference books that point researchers to U.S. Census data.
  • A popular collection of books on Mayflower families.
  • Free access to online genealogy sites HeritageQuest Online and
  • Books on histories of Arizona families.
  • Individual family histories donated to the state.
There are some serious questions that need to be answered, but none of them have anything to do with the closure of the genealogy library. The most serious question is how many of these items are unique to this particular library? If they are unique, why haven't they been made more available to the general public by digitizing the items and putting them online? I would also point out that some of these categories of reference materials, such as books that point researchers to U.S. Census data, are not only online but outmoded.

Nowhere in the huge stream of genealogy comments online do I find a reference to the fact that the Arizona State Library, Archives and Public Records maintains an active, Digital Arizona Library. This online library contains many valuable genealogical resources such as:

If the physical space is needed so much that it is forcing the closure of a library, then why hasn't the "genealogical community" been legislating to expand the online offerings, which obviously take up much less physical space?

While I am at it, Arizona is one of the very few, perhaps the only, state that has many of its birth and death records online. See Although Arizona is certainly not at all in the same league as Washington State with their online collections, we do have more records than most of the U.S. states.

The reasons here are why I talked about the closing of Mesa Computer Mart. Here is one example. I lived in Mesa, Arizona. The State Library is located in Phoenix, Arizona. On a good day, it would take me anywhere from 45 minutes to more than an hour to drive from Mesa to downtown Phoenix on a freeway going the speed limit (I have a lot to say about that, but that really is not relevant to anything genealogical). Then I have to park. Then I have to walk (in the heat) to the Capital building. I am very familiar with the drive since I spent the better part of a year working on a case that involved lobbying at the State Capital.

Did I ever use the genealogical collection in the State Library? Yes, very infrequently and less when I found that most of what I was looking for WAS ALREADY ONLINE!

Now what about reality. Reality is that the largest and most complete genealogical collection of books, microfilm, records and other resources in the State of Arizona has been closed for over 8 months with barely a notice by the same genealogical community that is now up in arms over the State Library. The Mesa FamilySearch Library in Mesa closed at the end of November, 2014 and remains closed to this day with no information on when it will open. Any mention of this by the present genealogical community uprising?

Here's an interesting fact about the collection of books in the Mesa FamilySearch Library. All of the books that are out of copyright or where the copyright holder gave permission, have been digitized and are now online on's Books collection.

I have written a number of posts recently about the challenges faced by libraries. It looks to me like some in the genealogical community are in the position of shutting the barn doors after the horses have all escaped. Book technology is changing rapidly. State governments are not immune to the changes. The issue here is not where the collection is housed, but whether or not the State will make the information contained in those books and documents available to the entire state and not just to those who are interested enough to drive and park in downtown Phoenix.

The movement to digitize the materials in the State Genealogical Library should have started years ago. Those genealogists around the world who are concerned about the closure of libraries, need to wake up and see that technology has passed them by. My last question is how many of books and other records in the Arizona State Genealogical Library are already online? Anybody know the answer to that question?

If you are a genealogist in the United States, do you know the ratio of what your state has in genealogically important documents to the number online? By the way, when did I ever avoid a controversial topic?

Thursday, July 30, 2015

What Constitutes Publication in a Copyright Case? Part One

This post addresses some unfinished business concerning my recent post about some U.S. copyright issues. There are two very vague areas in the U.S. copyright law: fair use and publication. Neither of these "legal doctrines" are explicitly defined in the statutes. I will first discuss publication and then in a subsequent post, fair use.

Genealogists seem to get into this issue in a big way when they start to worry about who can or who cannot publish an old photo, diary, document or etc. The main concern is that there was and still is an issue with the term of copyright coverage to "unpublished works."

Before I begin, I want to clarify my legal position. I am a completely retired attorney from Arizona. I now live in Utah and I no longer practice law in either state. My opinions are just that: opinions. During the time I was actively practicing law, I was consistently involved in what is now called "intellectual property" law although my main practice was commercial litigation. I have taught a number of classes on both U.S. Constitutional law and Intellectual Property law. What I write is not to be construed as legal advice to anyone for any purpose. That said, here I go again.

In the area of copyright law, one of the most recurring questions involves the issue of when a work is protected. The current copyright law is clear. Quoting from the Frequently Asked Questions on the U.S. Copyright Office website,,
When is my work protected?

Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
This seems straight forward and simple and it is. But the real issues start to arise when we consider works created at some point in the past. The application of the law depends on the law in effect at the time the work was created and copyright law has changed many, many times over the years from its first mention in the United States Constitution, Article 1, Section 8.  The best and most current summary of the U.S. Copyright Law is from Cornell University's Copyright Term and the Public Domain in the United States, 1 January 2015. As this chart explains in a footnote:
"Publication" was not explicitly defined in the Copyright Law before 1976, but the 1909 Act indirectly indicated that publication was when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.
In law, the word "or" is important. The definition from the 1909 Act did not limit publication to the commercial sale but included when the work was "publicly distributed." What does this mean? Hmm. That is the real question. Let's see what the law has said about this issue. One way to begin to find out the status of any legal issue is to review the scholarly journal articles on the subject. Law students and law professors thrive on publishing articles and they sometimes do an adequate job of reviewing the law in any given area.

Unfortunately for those uninitiated to the law of copyright, there is a legal doctrine called "common-law copyright." The definition of common law copyright, like many legal terms, is circular:
Common law copyright is the legal doctrine which grants copyrightprotection based on common law of various jurisdictions, rather than through protection of statutory law, like the federal copyright statute. See Wikipedia: Common law copyright
I have not raised this issue particularly before, because it is somewhat outmoded. Quoting from the Wikipedia article:
In part, it is based on the contention that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property. The proponents of this doctrine contended that creators had a perpetual right to control the publication of their work (also see perpetual copyright).[citation needed
The "natural right" aspect of the doctrine was repudiated by the courts in the United Kingdom (Donaldson v. Beckett, 1774) and the United States(Wheaton v. Peters, 1834). In both countries, the courts found that copyright is a limited right created by the legislature under statutes and subject to the conditions and terms the legislature sees fit to impose.
I left in the cross-references in case you want to investigate this issue further. I would note that Wikipedia is just a convenient starting point for research on any given subject. In many cases, I am compelled to go much further and examine original court documents and decisions.

The U.S. Supreme Court case of Wheaton vs. Peters 33 U.S. 591 (1834) is the beginning point for understanding the issue of publication. The opinion is quite long (not unusual) and addresses the issue of the relationship of the common law (derived from the historic English law) to statutory law or the laws created by the U.S. Legislature. The question, put as simply as I can, is whether or not an individual can claim a copyright to a document under the common law (court decided law) or whether copyright protection originates solely from statutory provisions? The division in the United States is between the law of the individual states and that of the Federal Government. If there is a common law copyright claim, then the right is perpetual. Think about that.

You can search the complete version of the current U.S. Copyright Law from Circular 92, Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code on the website. 

The pertinent amendment to the existing copyright law is as follows:
[CopyrightAmendments], Pub. L. No.102-492,106 Stat. 3145 (amending §107, title 17, United States Code, regarding unpublished works), enacted October 24, 1992.
Here are the basic provisions of the law contained in Sections 102 and 103:
§102 · Subject matter of copyright: In general 
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: 
(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
§103 · Subject matter of copyright: Compilations and derivative works 
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. 
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
 The important provision for the purpose of unpublished works is in Section 104:
§104 · Subject matter of copyright: National origin 
(a) Unpublished Works.—The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.
Section (b) continues with published works.

What then does the law state about the terms of copyright coverage for "unpublished" works? What then constitutes publication? Good questions and the reason for this blog post.

The key provision of the statute from a legal standpoint is in Section 412:
§412 · Registration as prerequisite to certain remedies for infringement 
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for— 
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or 
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
OK, what this means is that in any action for infringement of a copyright, you must follow the provisions of the statute to claim statutory damages or you are limited to your "actual" or provable damages.

Let's suppose you have a photo of your grandmother taken in 1900. There are a series of questions that need to be asked about the application of any copyright claim by the photographer. This list is not complete but should give you an idea of the questions that may be raised:
  • When exactly was the photograph taken?
  • Who took the photograph?
  • Was the photograph ever published?
  • Is the photographer still alive?
  • When did the photographer die?
  • What happened to the photograph after it was taken, assuming it was unpublished?
These are some of the actual questions I would ask you about your photograph if you were to consult with me before I retired. In fact, they are the same types of questions I asked when I took a Federal District Court case involving a copyright claim to a photograph. 

Let's further suppose that someone besides a member of your ancestral family took the photograph. How did the photograph come to be in your possession? That is a crucial question. 

Now, we have a basis for wondering if the photograph was ever published. If we go to the Cornell University Chart, referenced above, summarizes the law concerning works that are never published and never registered (I may get to registration later) as follows:
  • Unpublished works have a term of the life of the author plus 70 years for works from authors who died before 1945. 
  • If the work was anonymous or pseudonymous or "made for hire" i.e. of corporate authorship, then the copyright term is 120 years from the date of creation for works created before 1895.
  • If the work is unpublished and the date of the death of the author is not known, then the copyright term is 120 years from the date of creation for works created before 1895. 
There is a footnote about this that says:
Unpublished works when the death date of the author is not known may still be copyrighted after 120 years, but certification from the Copyright Office that it has no record to indicate whether the person is living or died less than 70 years before is a complete defense to any action for infringement. See 17 U.S.C. § 302(e).
Now it is time to stop for this post and continue in Part Two. 

Mac Version of Ancestral Quest Coming Soon

I recently had an opportunity to talk to Gaylon Findlay, the President of Incline Software, best known as the developers of the Ancestral Quest genealogy program. He showed me a brief demo of the new, Apple Macintosh version of Ancestral Quest. It is running under a customized version of CrossOver Mac, the emulation program that runs Windows software on the Apple OS X operating system computers. The Ancestral Quest Mac version is supposed to be released in the next few days. I am anxious to get a copy and will report on the full program as soon as I have had time to evaluate it.

What I did see was impressive. Ancestral Quest always receives some of the best reviews on the website.