Photo by David Ball.

From Dear Rich: An Intellectual Property Blog.

Dear Rich: I’m helping two authors with a manuscript about their experiences researching their ancestors who were slaves. They go back to the slave period and continue up to present day. I am unclear about the legal rights associated with certain material including: 1) publication of information found in public records, 2) publication of information from church records, historical society records, family bibles, etc., 3) publication of information gained through personal communication, other family members, community members, or fellow ancestry.com members, or others doing family research, 4) publication of information about DNA test result sharing on ancestry.com type sites (the information is related to finding other relatives), 5) publication of family photos taken by family/friends, 6) publication of information from personal communications and informal interviews. Relatives are named and identifiable, so their contemporary descendants can identify their ancestors. I am thinking they will want to inform family members, prior to publication, about the inclusion of information/photos in their forthcoming publication that relate to them.

There are sometimes moral and ethical issues when you start digging up the roots of the family tree. (Do you really want the world to know that your mother’s grandfather was charged with indecent exposure?) As for legal concerns, here are four questions to consider:

• Are you violating the right to privacy? Invasion of privacy can occur when private or embarrassing facts are disclosed about a living individual without relation to a legitimate public concern. This is referred to as “Disclosure of Private Facts.” Dead people do not have a right to privacy.
• Have you fact checked any statements that could cause damage to a person’s reputation? False statements can give rise to libel/defamation claims. For example, you falsely claim that a relative was born out of wedlock. As with privacy, the dead cannot be defamed.
• Are you violating copyright law? Copyright doesn’t protect facts or ideas so you’ll have no problems publishing facts found in public records, culled from historical and church records, or provided by an interview subject. Copyright doesn’t protect unpublished works whose authors died before 1947 or published works that were published before 1923. You can obtain more details on copyright expiration at the Cornell website. If you interview someone and want to use more than facts — for example several paragraphs of text—it’s usually best to use an interview release. If you know who holds copyright on a copyrighted photo it’s prudent to obtain a permission agreement. You do not need a photo release from the people pictured in the photos. Finally, if challenged, you have fair use as a possible defense.
• Do you have permission to reproduce DNA results? If the DNA test taker consents to publication, you are safe publishing DNA test results. Sites like ancestry.com have privacy policies that allow you to reproduce your test results.