Friday, November 15, 2013

Why All The Footnotes?

I am aware that some of my readers are wondering, “Why all the footnotes?” in some of my posts. No, it’s not because I’m a lawyer and used to putting cites after everything. Or, not entirely.  I use them for three reasons.

The first has been drummed into me from all the reading I’ve done on genealogy, “Always cite your sources!”  The purpose of citation is to make sure you can find the source of each of your facts again; it also helps you (or someone else) judge the quality of your evidence and thus its credibility, and, if necessary, allows the research to be duplicated.  There is a specific approved format for genealogical research. I don’t know it yet. I just try to make sure that someone else can find it based on what I put in the citation. (I’ve ordered a book on how to do it the right way.)

The second reason is that I’m trying to avoid committing a copyright violation.  Bearing in mind that I am not a copyright lawyer, I’ll try to explain this. [Requisite legal disclaimer: I *am* a lawyer, but not *your* lawyer. This shouldn't be considered legal advice and does not form a lawyer-client relationship. If you want a real legal opinion, retain and speak to a lawyer who regularly works with copyright issues.]

The Copyright Act grants five rights to a copyright owner: the right to reproduce the copyrighted work; the right to prepare derivative works based on the copyrighted work; the right to distribute copies of the work to the public; the right to perform the work publicly; and the right to display the copyrighted work publicly. It essentially prevents the unauthorized copying of a work of creative authorship.  There are some limitations on this right, and I’m only going to address those that come up in genealogical research and blogging about it, briefly. [If you’re interested in a more in depth discussion, see:  Copyright Fundamentals for Genealogy by Mike Goad and Copyright and the Old Family Photo by Judy G. Russell]  All that’s protected under copyright is the author’s original creative expression.  Facts and ideas can’t be copyrighted; but how one arranges those facts, and chooses to express the facts or ideas is, as long as there is some level of creativity involved. Another limitation is the concept of “fair use”, which has been developed through years and years of case law but has now been codified in Section 107 of the Copyright Act. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is to be considered fair: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect of the use upon the potential market for, or value of, the copyrighted work. It’s not always easy to determine whether something will be considered fair use or not, there are rooms full of long decisions parsing this out. There is no magic number of words, lines, or notes that may safely be taken without permission, and acknowledging the source of the copyrighted material does not substitute for obtaining permission if such permission is required.  The safest course is to get permission before using the material (an emailed request to the copyright holder can save a lot of angst and stress).

Copyright can expire; when it does the item is then considered to be ‘in the public domain’ and anyone can use it. The duration of copyright protection depends on when the item was created, because the law has changed several times. Happily, for genealogical research, if it was created before 1923, there is no copyright on it anymore, so long as it was published (newspapers, magazine, yearbooks, books, etc.).  If it wasn’t published, it might still be protected by copyright.  The latter arises mostly with old photos, and the problem there is the copyright goes to the photographer and not to the owner of the photo unless it was assigned to the owner at some point.  And then there are about five discrete blocks of time with differing expiration times and conditions in the years since 1923. There’s a nice explanatory chart of those different effects, here.

So what is the punishment for violating copyright, you wonder? The copyright holder generally has to assert the copyright first and if you don’t take it down, then punishment can apply if your calculation as to “fair use” or “in the public domain” was off.  The punishment can range from fines ($200 to $150,000) and court costs to jail time.  
So the reason there were so many cites in the post on Myrtle Bailey was that the source of much of my information was newspaper articles (creative work subject to copyright) published since 1923 and through 1976. Now looking at the laws in effect then, I think most of it was in the public domain and I probably didn’t have to be that obsessive, but I hadn’t really looked it up until I wrote this post. I read a digest of  the copyright law over before starting blogging, but I didn’t refresh my memory before that post. Some of the newspaper articles were written late enough to be still covered, and, while I think my use ought to be considered fair use, I would have cited to the paper anyway.  In the future my posts will probably look a bit less like a treatise.

 Basically, in my blog, I’m going to try to avoid using copyrighted material, but if I do use it, I will cite to the original piece and author if I know it and hope that it falls under the fair use exception. If someone with claim to the copyright protests, I’ll remove whatever I’ve quoted, or the picture I’ve posted. Pictures of family posted in a family history blog that is not written for any sort of profit probably fall under fair use; I’ll still attribute the photographer if I can figure out who it is, to be safe. As I write more about people who lived before 1923, I’ll be less obsessive on the blog, but citations as to evidence will remain important to me in my research.

….Oh, right, the third reason I use cites is that I’m a lawyer and used to putting cites after everything! ;)

[There are no cites in this article because its a mix of facts and my own creative arrangement to those facts. I hold the copyright to this article (for my life plus 70 years!) which is why I have a "Copyright Information' paragraph on the Home page of the blog.] 

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