When you are writing a family history article or book, have you wondered if you could use a photograph, quote, or record image legally? That town map you found might be perfect to illustrate your point in a research report or presentation, but can you use it? With the proliferation of images and information across the internet, plagiarism and copyright issues need to be addressed. As family historians and genealogists we want to be ethical and on the right side of the law. Although copyright law can be confusing there are some general guidelines that aid us in navigating these choppy waters. Additionally, several resources can help us evaluate the sources we use in our genealogy and family history work.
Why Worry?
You may be thinking, “I am just writing this for my family, what does it matter?” Genealogy Standards contains an entire section titled Integrity and Ownership and helps us understand that ethically and legally we should guard against plagiarism and copyright infringement. (1) Any time we share a family history or research report there is a good chance that it will be copied and sent out to others in the family who may then share it online. We have no idea where our work may eventually end up.
When we cite our sources with complete and informative source citations, that protects us from plagiarism, but not copyright. We use a source citation for every fact not common knowledge. For example, when writing a research report, I might reference an article discussing the first settlers in a county. That would need a source citation. I might also state the year the United States entered World War II which is common knowledge and does not need a citation.
A general rule of thumb is to place quotation marks around a direct quote of three words or more. Hearkening back to our college report writing days, a best practice is to study the material then put it into our own words and cite our sources for the information. Two excellent resources can remind and educate us.
– Elizabeth Shown Mills’ QuickLesson 15: Plagiarism—Five “Copywrongs” of Historical Writing provides several examples of the wrong and the right way to use the works of others in our reports.
– The National Genealogical Society has published “Guidelines for Sharing information with Others” that focuses on respecting the work and the rights of others.
Whose Responsibility is it Anyway?
We each need to shoulder the responsibility to learn about and understand copyright issues when it comes to including that image of a map or photograph in our work. Many resources are available to educate ourselves. Judy Russell blogs at The Legal Genealogist and has written and lectured extensively about copyright. If you do nothing more, watch her video from Rootstech 2020, “2019:Year of the Copyright.”
Additional works by Judy Russell include many blog posts on copyright and an entire chapter in the 2nd edition of Professional Genealogy devoted to copyright issues. (2)
What Can We Use?
Several terms to know when it comes to copyright issues are public domain, creative commons, and fair use.
Public Domain
“Public domain” refers to creative works that can be used without obtaining permissions because they are not protected by copyright laws. These works are available to the public.
Two general rules are useful:
1. Materials in the public domain can be used without concern. As of 2020 that is anything lawfully published in the United States before 1925 (rolling year). We must still remember to give attribution in the form of a citation.
2. Anything produced by a federal employee for the U.S. Federal Government cannot be copy-written and is in the public domain. Again we give attribution to the creator.
For any work created after 1925 there are many different criteria to judge whether that work is in the public domain or not. A helpful resource is available through the Cornell University Library “Copyright Information Center.” This resource provides a detailed table to judge whether or not the work is in the public domain and thus free of copyright restrictions.
Creative Commons
Creative Commons is a non-profit organization that provides licenses to creators that they can attach to their work giving permission for public use. The article “About CC Licenses” explains the various Creative Commons license options. If I were to take a photograph and publish it online, I would hold the copyright and under current laws no one could legally use my photograph without my permission. However by attaching a Creative Commons License, I could allow various degrees of permission including putting my photograph into the public domain.
An image online may have a Creative Commons license so we could use it if we met the conditions. Always look for that notice and follow the request. If no Creative Commons license is referenced and the creative work is not in the public domain, we can ask permissions via a written letter or email.
“The Commons” on Flickr provides many photographs with varying Creative Commons licenses and is an excellent website to explore and learn about the various permissions. Many of the photographs on this website are in the public domain and useful for our family history.
Fair Use
You may have heard the term “fair use” which means we can use brief excerpts of materials under copyright in certain situations. Perhaps you’ve discovered a poem written by a family member and you’d like to include a portion of in your family history. If the poem were still under copyright and you published that portion in your book without permission, the poet could take you to court. The judge would then have to determine if your usage fell under “fair use” or not.
The article, “Measuring Fair Use: The Four Factors” provides an overview of the four factors a judge may use in federal court to resolve a copyright case.
The purpose and character of your use
The nature of the copyrighted work
The amount and substantiality of the portion taken
The effect of the use upon the potential market
After studying the principles of fair use, we can use our common sense and decide what’s right and what’s wrong.
Making a Decision
Brigham Young University has made available two websites that will help you to make informed decisions regarding copyright and fair use issues.
The interactive Decision Trail “will walk you through a series of questions to help you decide when you can use someone else’s work legally or when you need to obtain permission.” Videos and examples can help you to understand the issues. The screenshot below shows a portion of the Decision Trail.
BYU Copyright Licensing Office, “Decision Trail” (https://decisiontrail.byu.edu/# : accessed 22 July 2020).
This website first has you fill out personal information if you would like to have a record for your query. This can be skipped if no record of the query is needed. You will then answer a series of questions related to Fair Use. When completed, your answers will be compiled and the Interactive Fair Use Predictor will show how likely your use of an image, quote, etc. falls under Fair Use. In the screenshot below, my query resulted in a prediction that favors Fair Use. As it says as the bottom of the image, this is not intended to be legal advice, merely an educational guide.
BYU Copyright Licensing Office, “Interactive Fair Use Guide,” (https://fairusechecklist.byu.edu/# : accessed 22 July 2020).
Example of Fair Use
Let’s look at an example. In creating my recent presentation on “Settlers of Indian Territory” for the virtual National Genealogical Society Conference, I wanted to include several images and maps. Doing a Google search I located the following map on the Library of Congress website.
United States Bureau Of The Census. Map of Indian Territory and Oklahoma. [Washington, D.C.: U.S. Bureau of the Census, 1890] Map. https://www.loc.gov/item/2012586269/.
The maps in the Map Collections materials were either published prior to 1922, produced by the United States government, or both (see catalogue records that accompany each map for information regarding date of publication and source). The Library of Congress is providing access to these materials for educational and research purposes and is not aware of any U.S. copyright protection (see Title 17 of the United States Code) or any other restrictions in the Map Collection materials.
Note that the written permission of the copyright owners and/or other rights holders (such as publicity and/or privacy rights) is required for distribution, reproduction, or other use of protected items beyond that allowed by fair use or other statutory exemptions. Responsibility for making an independent legal assessment of an item and securing any necessary permissions ultimately rests with persons desiring to use the item.
Examining the details for the map, I saw that it was published in 1890 and thus in the public domain. I was using the map for educational purposes on only one slide of my presentation. I determined this was fair use and I could use the map, giving proper attribution in the form of a source citation.
Example of Seeking Permissions
In searching for additional illustrations for my presentation on Indian Territory I discovered the beautiful maps available on the Oklahoma Historical Society website titled “Maps of Tribal Nation Land.” Viewing each map, I saw the set was produced by Katie Bush and the 2018 copyright held by the Oklahoma Historical Society. These maps were definitely not in the public domain so I reached out to the society through email and asked permission to use the maps in my presentation. They graciously gave me permission in a formal email that I have filed. On each slide I included a complete source citation and the term “used with permission.” You never know unless you ask!
When it comes to avoiding plagiarism and copyright infringement, there is no easy answer. As we educate ourselves, we can learn how best to use various materials in our research reports and family histories. We will be ethical genealogists.
Best of luck in all your genealogical endeavors!
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(1) Board for Certification of Genealogists, Genealogy Standards, 2nd ed. (Nashville, Tenn.: Ancestry.com, 2019), 36, standard 62, “Integrity and Ownership.”
(2) Russell, Judy. “Copyright & Fair Use.” Elizabeth Shown Mills editor. Professional Genealogy : Preparation, Practice & Standards. (Baltimore: Genealogical Publishing co, 2018), chap. 7, pp. 151-172.
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