

Thursday, August 14, 2014

Can you steal my ancestors? Work Product, Facts and Compilations

Usage of the verb "to steal" and its nominative, dative, and other grammatical forms, always imply ownership. Ownership is a complex cultural, societal and legal concept. There is an old, often quoted and completely false statement, that "possession is nine tenths of the law." Well, under some circumstances possession does imply ownership; but the opposite may also be true. Sometimes possession itself is a crime and ownership is not even a consideration.

The verb "to steal" is defined as taking another person's property without permission or legal right and without intending to return it. See Google. In analyzing this definition, I would have to define each word in its legal sense. Theft is the generic term for all crimes in which a person intentionally and fraudulently takes someone's personal property without permission or consent and with the intent to convert it to the taker's use (including potential sale). See The Free Dictionary, Theft.

I am visiting this issue again because I keep hearing complaints from genealogists concerning the fact that someone stole their family tree information either from a posting on the Internet or by using a file that was shared in a way unanticipated by the creator of that file. I assume, for the purposes of this post, that we are talking about genealogical information about a particular set of ancestors developed and researched by someone for whatever purpose. In other words, I am making a distinction between information obtain and recorded as a results of historical research and work created from the imagination or experience of the researcher i.e. facts vs. creative writing.

Fortunately, in the United States, this issue has been clearly decided by the United States Supreme Court case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). In this case the Supreme Court held that information alone without a minimum of creativity cannot be protected by copyright. Simply put, you do not own facts in the United States. Arguments surrounding this issue are often called "sweat of the brow" claims. See Wikipedia: Sweat of the brow. Quoting from the Feist Publications case concerning the definition of a "compilation:"
The purpose of the statutory definition is to emphasize that collections of facts are not copyrightable per se. It conveys this message through its tripartite structure, as emphasized above by the italics. The statute identifies three distinct elements and requires each to be met for a work to qualify as a copyrightable compilation: (1) the collection and assembly of pre-existing material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an “original” work of authorship. “This tripartite conjunctive structure is self-evident, and should be assumed to 'accurately express the legislative purpose.'” Patry 51, quoting Mills Music, 469 U.S., at 164.
If I write a "story" based on my historical research, whether or not the story is fiction or an attempt to create a history, that writing would be an original work and protected by copyright. However, it is clear from the Supreme Court decision that the "facts" are not covered by copyright law. So, if you or I write a story about our ancestors and include dates, places, relationships, occupations, etc. then these facts are not protected by law. I could copy all the facts from your "story" and use them anyway I chose.

In this context, you may have heard the term "work product" thrown around. The definition of work product is anything you complete as a results of the requirements or instructions of a person who has hired you. Work product has nothing at all to do with copyright, it has to do with employment. The concept of work product arises frequently in a legal context because the law gives attorneys a limited exclusion from the legal discovery of their work product in court cases.

In the context of genealogy, the issue is whether or not you acquire some kind of ownership of the information you acquire through your research? Do your years and years of searching historical records give you some kind of ownership interest in the information you produce? The answer is no. This would be especially true if your compilation consisted solely of the facts you had gathered in the standard genealogical format i.e. Personal Ancestral File or some other program. As the Supreme Court states in the Feist Publications case,

Not every selection, coordination, or arrangement will pass muster. This is plain from the statute. It states that, to merit protection, the facts must be selected, coordinated, or arranged “in such a way” as to render the work as a whole original.
In essence, you cannot copy the arrangement or selection of the facts from another work. The law in this area is far from settled. I have yet to find a law case supporting the concept of ownership of genealogical information. From my standpoint, the ultimate argument against such a claim is the simple fact that many other people have the same ancestry. It seems utterly impossible to argue that anything you can do would give you "ownership" of facts about my great-grandfathers' life or anyone else in my family tree, even if we shared that relationship. How do you acquire a greater interest than any of your relatives? In short, you cannot.

In this particular discussion, I have not considered the case of the ownership of intangibles. That is another post. But going back to the initial comments I made here about stealing and theft, using these words is entirely inappropriate because there is no ownership interest to steal and using either term in conjunction with a copyright claim is inappropriate.


  1. IMHO lots of people would be less annoyed about this kind of thing if the person using the material gave credit to the person who did the original work and took the trouble to preserve its integrity.

  2. So to copyright your family tree all you need to do is fabricate some of it, thus rendering it "creative work". Of course, doesn't this mean many/most family trees are copyrightable

    1. But the content would still not be subject to copyright protection, only the design.