Can I Use FamilySearch Scans of Probate Documents in a Book?
I'm writing a book about one of my ancestors who died just after the turn of the 18th century. Can I use scans of his probate documents from FamilySearch in my book?
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yeh - I dont know the details of this case. Nor do I know the details of the contract between FS and the original data owner nor with Ancestry.
BUT just because Familysearch photographs a given item - doesnt mean they have the legal right to do whatever they wish with those photographs. the act of scanning/photographing does not usually grant copyright to the scanner. Nor does the real document ownership really transfer legal ownership - unless the contract specifically said so.
which is why even though FS has photographed billions of images - For those that are NOT in the public domaiin the true authors almost always retain copyright and legal control -- but based on the terms of the contract.
For those items that are public domain -- and if they are free of any "terms of use" (which I think this case they may be) --- anyone is free to copy and use. and technically even charge access to if they thought they could. but Im not sure about cases of FS sharing their photos of an entire project with other (especially for profit businesses) though I don know.
I guess Ancestry is free to provide hints, links to other sites - as much as they wish.
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In FS it totally depends on the "terms of use" for the specific resource" by the people who created it. (which in most cases is not FamilySearch - but the third parties that they have contracts with. )
That being said - most items prior to 1923 are considered to be free of copyright -- though "terms of use" can still apply that may restrict usage.
But I would guess most copies of original probate documents would be public domain and used without issue - but it is the responsibility of each user to findout terms of use etc. this is not legal advice.
In many cases if an item has restrictions - FS would prevent you from downloading if there were serious limitations. But that is not always the case.
Note -- Most probate records would be created at the county level.
One of the most important things is merely to cite your sources.
Personally I have posted numerous probate records on line. I consider them public domain.
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You will find the full Terms and Conditions, specifying what you can use and where at https://www.familysearch.org/legal/terms
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In the USA, probate documents are usually owned by the town, county or state / colony (or all of the above). Sometimes the documents have meandered into private collections, of deceased judges' libraries, for example, and then there is a legal issue for use of those. If you see a probate document, I would contact the lowest political entity and ask.
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yes probate records are usually at the county level.
even if a copy of a probate had meandered into a judges private collection - or anywhere else - if you get your copy from the source (the county) and if they say it is in the public domain (which it should be in most cases) then anywhere else it exists shouldn't matter,
and if you get it from FS and they dont advise of any usage limitations and you contact the county and they dont either - than you should be fine.
but again -- anything pre 1923 is NOT under copyright. (though it can fall under terms of use contracts)
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the "terms of use" is often totally misinterpreted by many (due to its very misleading verbiage)
in the below paragraph when thy say "you may not post content from this site" - they are referring to any content that is owned by FamilySearch (stuff they have copyright on - things they have actually authored)
in the vast number of cases digital items from historical records are not things that FS has copyright over - and is NOT the content that is being alluded to in this terms of use.
I have brought this very confusing language to the attention of FS and they agreed with my point - but they still leave the terms of use just as confusing as ever.
From The Terms of Use
Unless otherwise indicated, you may view, download, and print materials from this site only for your personal, noncommercial use (including such use in connection with your calling in the Church), or for your use as a volunteer indexer in connection with the FamilySearch Indexing Program pursuant to the FamilySearch Indexing Program Terms and Conditions or the FamilySearch Indexing Software License Agreement.
You may not post content from this site on another website or on a computer network without our permission. You may not transmit or distribute content from this site to other sites. You may not use this site or information found at this site (including the names and addresses of those who have submitted information) to sell or promote products or services, to solicit clients, or for any other commercial purpose.
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Thank you for your opinion.
Yes, the probate documents were recorded in 1704 in Bristol, Colonial Massachusetts---which today is Bristol, Rhode Island---and were for some time physically housed in Taunton, Mass. A man named Peter Rounds created a book called Abstracts of Bristol County, Massachusetts Probate Records, 1687-1745, and mentioned in his introduction that there were two groupings of materials, both of which had been photographed by FamilySearch: 1) materials that were used in the bound probate volumes; and 2) loose materials that were in envelopes, stored alphabetically by Last Name, First Name.**
In some situations where there are old documents such as these, the documents themselves are (supposedly) in the public domain, but photographs/scans taken of them could still be copyrighted by the photographer or entity doing the scanning. That's why I'm wondering whether these could still be labeled "created content" by FamilySearch.
On the other hand, the Massachusetts goverment allowed FamilySearch to photograph the documents in order to limit physical access by the public; because of the age of these materials (now 318 years!), the more they are exposed to air and light, the faster the deterioration, and physical handling by the public would accelerate this even more. So FamilySearch has been given access to the documents so that the public will have access to their ancestors' records. I don't even know that they are making any money from this that could be harmed by an infringement. (FamilySearch membership is free. They also allow Ancestry to use them, which DOES make money, and uses FamilySearch's photos to do so!)
So, this thing is VERY complicated!
*) Public domain documents photographed by another entity but only allowed access by their serving in a capacity to allow public access. That's the way I see it. So it's very "mushy" as far as copyright by FamilySearch.
*) FamilySearch then provides the document photographs to Ancestry. I'm not sure whether they pay FamilySearch anything, such as to help cover costs. I just looked at the probate documents within Ancestry, and note that in the bottom righthand corner it says "[Copyright symbol] 1997-2022 Ancestry.com." So FamilySearch created the content, but Ancestry is claiming copyright. Ancestry takes the documents through a process to turn them into black and white with sharp contrast, which they might consider "enhancement," and thus copyrightable. (I can do this myself with FamilySearch's images, with my own software, after download.)
** For years I could find only the materials from #2, which held only an estate inventory and a bond document, and nothing else! I was finally pointed to the will and court hearing journal via an exchange of email with officials in Massachusetts. It turned out that nobody can read the handwriting in the will---specifically the old English 'e' which looks like a cursive 'o'. (For example, the name Pope would be read and indexed as "Popo"! They have done this consistently throughout.) Also, the name of the deceased in the index was two first names extracted from the will (William Thomas), the probate date was incorrect, and the man's son by same name was grabbed by Ancestry for the hint. This happens way too often with the indexes. I suspect that Ancestry hires the cheapest foreign labor possible to create its indexes. (These are people who not only can't read the script, but are not familiar with older given names, such as Josaiah.) Ancestry then hopes that the public will make the corrections to add value to the content so that they can monetize it. (I refuse.)
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Id be interested in learning more about your statement about Familysearch providing items to Ancestry. what was your source on that?
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also any times that I have obtained probate records directly from county courts -- I have never been told it was copyrighted or that I had to acquire permission to re-post it. They have given it to me - as if it was a "public domain" item (albeit at a nominal cost which I dint mind paying).
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Ancestry provides "hints" that lead right to the same FamilySearch documents. (Because it was FamilySearch who photographed the documents, according to Peter Rounds, the author of Abstracts of Bristol County, Massachusetts Probate Records, 1687-1745, I'm assuming that these records belonged to FS, unless they photographed them and then gave them as a gift to Massachusetts??) Both have the same number of images in the filmset, and the same image number of the will document.
I made the assumption from this that there is some arrangement where FS is allowing Ancestry to share these documents. But, as I said, the documents on Ancestry have a different appearance (black and white and high contrast) and they provide their own (crappy, useless) index.
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