Copyrights for Genealogy, Part 1: The Fair Use Rule

Some important background information: I’ve worked for many years in publishing— as an editor and a writer for books, magazines, newspapers, and technical publications. I’ve had to do a lot of work with copyright issues, and I’ve gained some valuable experience on what a person can and cannot do, and what they should and should not do, when it comes to sharing and using copyrighted materials. No, I’m not a lawyer, but I’ve had enough experience to speak knowledgeably on the subject. In this article, I am focusing on the copyright laws of the United States, since I’m most familiar with those, and how they apply specifically to some common genealogical questions. I will be clarifying some points and addressing more on the topic in a future article.


There is a great deal of misinformation on social media about what is and what isn’t legal, what is and what isn’t copyrighted material, and who really “owns” the photos that are posted online.

Copyright laws involve a lot of “if-then” scenarios and criteria. For example: If it’s a photo or a book, then the copyright lasts for 70 years after the death of the photographer. But if it’s a newspaper article, then the copyright depends on when the article was first published. And there’s also the possibility that the rights were sold to a publisher or studio.

It can all get very complicated and confusing.

For Genealogists, the legal and ethical issues of posting and sharing photos, stories, newspaper clippings, and other material online and in print can be very confusing. There can be some very legitimate concerns about what materials you post online or share with family, especially when it comes to any images and family stories you plan to publish. 

Social media discussions can make the topic even more confusing, and the “Terms of Service” for certain websites not only do not help to clarify the subject, they can make things even more confusing and worrisome.

Even with all of that being said, you don’t have to worry about breaking any copyright laws while doing your Genealogical research, and you don’t have to read a huge volume on the legal ins and outs of the law, as long as you understand one simple thing.

When discussing the subject of how copyright law applies within Genealogy, the most vital aspect — the part of the law which is most important and most relevant — is often the one piece missing from such discussions: The Fair Use Rule.


What is The Fair Use Rule?

As far as Genealogists are concerned, “Fair Use” means that even copyrighted material CAN be openly shared without violating the copyright, as long as four certain factors ALL apply.

The first of those qualifiers is that the material must be used for only certain purposes, one of which is research. Since we’re discussing Genealogical research here, this definitely applies.

The second is the nature of the material you’re trying to share. To keep this article from being even longer, this discussion will focus on materials and items that Genealogists tend to collect, share, and post online (such as photos, newspaper articles, and family oral histories). 

The third is what amount or portion you are using from the total publication or collection. In the cases of newspaper articles, for example, one or two articles are only a small portion of even the smallest newspaper issue. Unless you’re trying to reprint the entire issue, this shouldn’t be a problem for you. One or two photographs from a family album, a large box of collected photos, or a large online tree would be considered a small percent of a collection. 

The fourth is that the person sharing/posting the image or text is not doing so for profit.This qualifier is why I consistently emphasize the concept of publishing “for profit.” 

Basically, as long as you are not selling a newspaper article/photo and passing it off as your own work or as something else’s work (which you would have a legal right to sell), OR publishing it in material that you composed and are trying to publish and sell for profit… then you’re fine. (Published Genealogies and books of family stories, as well as the topic of professional Genealogy, will be addressed later in this article.)

The other very important aspect to this last factor is “the effect on the potential market.” Most likely, if you share a family photo that you found posted on social media, you are not going to impact that person’s income by doing so. They were almost certainly not planning to ever sell the image, they’re probably not a professional photographer, and your use of it in your online tree would not impact any profits from it. However, if you use a school photo originally taken by a photography studio, you might impact their income by sharing an image that you would ordinarily be charged for. There are exceptions, but this is just a generality.

Contrary to popular misinformation and panic on social media, nothing has actually changed much from Ancestry’s previous Terms of Service (TOS). Only two words were added in 2021 to their TOS. Their copyright abilities and limitations are still basically the same as they were in 2019, except that now they have your permission to keep your tree items on the internet for a longer time. (See link below.)

Ancestry CANNOT take away a copyright that was not yours to give away in the first place, so the idea that they’re doing an all-encompassing copyright grab of every photo on their system is impossible and misinformation.

To quote author Douglas Adams, “DON’T PANIC.”

More information on Ancestry’s TOS changes in this article:
“The Molehill and the Mountain” by DNA Geek


A Quick Note About Photographs

The photographer holds any copyrights, by default (unless they have sold and signed away their copyright). The copyright always extends to 70 years AFTER they die (the same timeline is true for book authors for their books). When the photographer dies, the copyright is automatically transferred to their estate. This means that even some Victorian-era photos MIGHT still be covered under copyright protections.

The same protections apply to photos taken by a professional photographer as it does to someone who takes a photo with their iPhone. If your Grandma took a photo of you as a baby, then your Grandma holds the copyright to that photo.

A few other very important points on the subject:

  • Photos that are posted online do not automatically lose their copyright protection. Just because you found it online, that doesn’t mean you can use it however you wish, or without paying for it. 
  • The word “copyright”/a watermark/the name of a studio does not have to be on the photo or scan of it, for it to be protected by copyright law. Copyright is automatically given to any created property. You do not have the right to watermark a copyright with your name, onto a photo you did not take. If you did take the photo, you have every right to watermark your name on it. However…
  • Watermarking a photo and/or owning a paper copy – even having a valid copyright to a photo – does not give you the right to tell other people not to post it to their tree. As long as the Fair Use Rule applies to their use of the photos, you have ZERO right to complain. If they post it, don’t even ask them not to use it; it’s none of your business anymore.
  • When a studio goes out of business, their photos are still covered by copyright laws, in the same way as for an individual photographer.
  • Under the DMCA (Digital Millennium Copyright Act) of 1996, a valid copyright holder can request their Intellectual Property be removed from a website. You need to prove you are the creator and to prove you have the right to control the material. Contact the website directly if you have any concerns about photos or other materials for which you hold a valid copyright, if you wish to remove them from that website. (More about this will be in Part Two of this series.)

See also: “Copyright Fair Use and How It Works for Online Images” (Social Media Examiner)


Newspaper Articles

Newspaper articles are protected by different criteria, depending on when they were first written and first published. Copyright laws pertaining to newspapers changed multiple times over the past 150 years, so some items could be covered under copyright when you would expect them to have become public domain long ago. 

It would take a few thousand more words than I’ve already written to go into all of those scenarios. However, once again, all you really need to know is how the Fair Use Rule applies to them.

Generally speaking, newspaper articles from any archive websites (such as Newspapers.com and others) are too old to generate any revenue for the publisher or copyright holder, or the publishers would not have allowed those sites to share them. (For various reasons, articles found in Google Newspapers might not always adhere to this age statement. But that’s a complicated explanation, which I won’t go into here.)

This is where the distinction of the newspaper paywall (where you have to pay the newspaper directly to see certain articles on their own website) vs the newspaper archive (which carries newspapers from various cities and different publishers) comes in.

Sharing and selling news articles taken from behind an individual modern publisher’s paywall can affect their market and the sales of their publications. Archive website articles cannot. So the paywall articles should not be shared and posted in their entirety, without first requesting and getting permission from the publisher. They definitely should never be used in any book or formally published material you might someday wish to sell, without first getting written permission from the publisher directly. (This situation would be a great time to call one of those aforementioned copyright lawyers.)

In the common online Genealogy situation where you find a paywall article while doing a free lookup for someone else, you should post a link to the website, and give the date and headline for the article. If you make any screenshots at all, share only a small portion of the article’s image (such as the headline with the first paragraph or two), so they can see if the article is relevant enough to their research to warrant paying a subscription fee. Do not screenshot or text-copy the entire article.

If, however, you are doing a lookup for someone (such as in a Facebook group online) and find an article from the 1890s on an archive site (say, Newspapers.com), and that person does not have a subscription themselves, you are NOT violating copyright by posting both the image of (only) that article, along with a link to it and/or the citation information (site name, newspaper name, city, date, page, etc). Posting such images is the same as posting images of screenshots from searches on Ancestry or other genealogy search engine sites. 

However (and this is a big “however”), when you subscribe to some of the archive sites, such as GenealogyBank, you agree to not share the articles you find on their site, unless it is under certain conditions. While you would not be violating copyright to share items from these sites, you are violating your agreement with them, even though you are not violating copyright. Check your Terms & Conditions for at paid sites you are using. Some sites, like Newspapers.com, offer subscribers a route to share articles with non-subscribers via a shareable link to the article you can create on their site.

If you find an article on GenealogyBank or a similar paid site, that you would like to share with a non-subscriber but are not allowed to share in any way, note the issue, date, location, and page. Then go to a free archive site (such as ChroniclingAmerica) and find the article, if it also exists there.

Don’t forget that you can also use Google or another internet search engine to find other free public sites that might carry that article. Be sure to put the headline or the name of the publication in quotes when you do an internet search.

As long as you provide citation credit to the original newspaper (which you will hopefully be doing anyway), you are in keeping with the Fair Use Rule — this is only for research & reference, you are not selling the image, and the image you are sharing is only a tiny piece of their total collection.

More about the Fair Use Rule as it applies to newspaper research for Genealogy can be found here:


Publishing Your Family History

But what if you plan to write a book FOR PROFIT, and wish to use copyrighted material?

If you are planning to write a book or other for profit material using photographs, newspaper article images, quoted family stories, artwork, or anything else you found online or offline… 

Consult a copyright attorney. They will be expensive, but well worth the cost.

Just because you have the original copies of a photograph/artwork/etc. in your possession, or found it posted publicly online on social media, or copied it from someone else’s public tree, or are fairly sure the photographer/author “must be long dead by now”… you don’t automatically have the legal right to use it in your own published work for sale (this is the key distinction here). 

In such a situation, do NOT trust some blog or social media group to advise you about the law! If you want to be a professional author and profit from your writing, then you need to hire a professional copyright attorney and profit from their vast knowledge of copyright law.

If you are publishing your family history in book form, but only charging relatives the cost of printing a copy, you are not publishing for profit, and are safely within the Fair Use Rule.


What About Professional Genealogists?

If you wish to get paid for doing professional Genealogy, and will be using items you found online or in print to give to your clients, all of these are covered under the “Fair Use Rule,” also. 

The important point to make is that you cannot charge your client anything more than a reasonable copy machine charge, for the cost of making paper copies of images, photographs, and/or articles you find online or in print. You can charge them for the time you spent to find the material, but you cannot charge clients for the copyrighted material itself. 

You should, however, take extra care to note for the client every detail of where to find the material themselves in the future (website link, which public library collection, the exact account name and profile name of the Ancestry tree where you found an article, photo, or family story, etc.). This is not only respecting copyright by citing sources, it’s also good business practice for any professional Genealogist. 


An Important Caveat

There is one VERY important detail of the Fair Use Rule that should never be forgotten:

Always, always, ALWAYS… Cite your sources!

Hopefully, you’re going to do this anyway, especially if you do a lookup for someone online. It would be pretty cruel to be doing a lookup on a newspaper site for someone else and say, “I found this great article about your Great-Grandpa’s adoption” without also telling the person EXACTLY where you found it (newspaper name, city, issue/date, page, etc). 

Perhaps you only provide them with a link to go to the free newspaper article themselves. That’s fine. This still counts as citing the source, because they can discover the paper name, date, etc. when they click the link. If you are sharing a photo you found on someone’s tree, be sure to share a link to that tree or the account name and the website. (The caveat here is that they have to be able to access the item via the link you provide. If the item is behind a paywall or requires a subscription to see it, be polite and just give them the citation information along with the image of the article/photo.)

Most subscription newspaper archive sites allow you to generate a link which can be shared externally. This link should allow non-subscribers to view (for free) a clipping you made on the subscription site.  

But whatever you do, cite your source. A vital part of showing respect for copyrights is to cite the source of the material, in order to be in keeping with the “Fair Use Rule” of Copyright laws. 

Under the Fair Use Rule, you can post those article images to your tree and share pro bono look-ups generously in social media posts, without worrying that you’re violating any laws, the same way as you would with any photos you find online or screenshots of any websites. 

Personally, I find it a bit annoying when I post photos and other images online with all kinds of source citation in the captions and comments (newspaper & date, who is in the photo, who has the original paper copy of something, etc), then someone downloads it — losing that source citiation😡 — and uploads it back to their own tree, without that vital information.😭 

Connecting a photo or other media that already exists in someone else’s tree, to someone in your tree, is easy on most genealogy sites. It’s not necessary to download the image, then rename it, then upload it into your tree. That’s also a lot more work.

An example of linking to another user’s media in Ancestry. By clicking on the icons for the other accounts, you can connect to other people who are also researching this ancestor.

When you attach the photo/media to your tree directly in these situations, instead of downloading the image, you also tell the algorithms that you share ancestors with these other accounts. This in turn tells the A.I. that when those other trees are updated in any way, you would be interested in any future sources or images they add or connect to this family line. On most Genealogy sites, you are also given links to those accounts and to their trees, so you can browse and find other shared items and ancestors.

Always use the powerful search algorithms of every genealogy site to your advantage, whenever you can.

This is Part One of a two-part series on copyright laws for Genealogists. Be sure to subscribe to my blog to get alerts for Part Two.


Disclaimer: This article is being written as a general reference about the Copyright laws in the United States, as they apply to Genealogy. Copyright laws and protections vary from nation to nation. If you plan to use copyrighted materials in any work you intend to publish for profit, be sure to consult a copyright attorney about the specific items you intend to use. For the sake of sanity and brevity, I will be limiting my article here to my home country of the United States, and to the specific topic of Genealogy. 



If you enjoyed this blog, please remember to “Like” it (click on the star below) and to “Like” any social media posts/comments where you saw this link. And don’t forget to “Follow” me here on WordPress, for more helpful and concise Genealogy research tips. Your positive feedback helps me to help more people online.

Thank you!

3 thoughts on “Copyrights for Genealogy, Part 1: The Fair Use Rule

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s