Some people eat, sleep and chew gum, I do genealogy and write...

Friday, July 31, 2015

About Books and Libraries and Such

In the 1980s, I was involved in a retail computer business called Mesa Computer Mart. We were an authorized Apple Computer dealer and the business grew rapidly. Of course, during that time period and continuing to the present day, technology was rapidly advancing (changing or whatever). As we operated the store, almost every day we asked the same question: "What business are we in today?" We had to make changes very rapidly to stay up with the market.

Unfortunately, the changes we faced were not only technological in nature, but we also faced fundamental market changes. Beginning in about 1992 or so, all of the computer manufacturers were facing market demand that far outstripped their ability to manufacture their products. Companies like Apple nearly went out of business, not because of technology but because they could not produce their products fast enough. At the store, we had back-orders on computers that were replaced by new models before our back-orders could be fulfilled. Part of this change was caused by the appearance of "big box" stores such as what ultimately became BestBuy and Costco. Now those same "big box" stores are threatened by online distributors such as

Shortly after 1993, Mesa Computer Mart had to close down. Within a very short time, nearly every dedicated computer store and nearly all of the chain stores went out of business. The last one to go in Mesa was CompUSA.

What has this got to do with genealogy? Plenty. I have been seeing a background of heated genealogical community discussion about moving the Arizona State Library's Genealogy Collection from the State Capital to the State Archives. There have been a very few mentions of the issue in the local Arizona newspapers. Here is a quote from the a news article dated 30 July 2015 and entitled, "Our View: Close Arizona's genealogy library? Good Idea."
The genealogy collection averages three visitors a day. The only person inArizona Republic photographs taken at the library Tuesday was a librarian. The room was otherwise empty. Many of the holdings have not been touched in years. 
It’s hard to justify keeping the place open. Yet genealogists, like anyone else enjoying a service at taxpayer expense, passionately complained. But in doing so, the only supported Reagan’s move. The governor’s office reporting getting 93 emails; Reagan received 50. That’s little more than a whisper.
What are they all talking about? Quoting from the same article:
What’s in Arizona's genealogy collection?
  • 20,000 items, including books, manuscripts and newsletters.
  • Reference books that point researchers to U.S. Census data.
  • A popular collection of books on Mayflower families.
  • Free access to online genealogy sites HeritageQuest Online and
  • Books on histories of Arizona families.
  • Individual family histories donated to the state.
There are some serious questions that need to be answered, but none of them have anything to do with the closure of the genealogy library. The most serious question is how many of these items are unique to this particular library? If they are unique, why haven't they been made more available to the general public by digitizing the items and putting them online? I would also point out that some of these categories of reference materials, such as books that point researchers to U.S. Census data are not only online but outmoded.

No where in the huge stream of genealogy comments online do I find a reference to the fact that the Arizona State Library, Archives and Public Records maintains a active, Digital Arizona Library. This online library contains many valuable genealogical resources, such as:

If the physical space is needed so much that it is forcing the closure of a library, then why hasn't the "genealogical community" been legislating to expand the online offerings, which obviously take up much less physical space?

While I am at it, Arizona is one of the very few, perhaps the only, state that has many of its birth and death records online. See Although Arizona is certainly not at all in the same league as Washington State with their online collections, we do have more records than most of the U.S. states.

The reasons here are why I talked about the closing of Mesa Computer Mart. Here is one example. I lived in Mesa, Arizona. The State Library is located in Phoenix, Arizona. On a good day, it would take me anywhere from 45 minutes to more than an hour to drive from Mesa to downtown Phoenix on a freeway going the speed limit (I have a lot to say about that, but that really is not relevant to anything genealogical). Then I have to park. Then I have to walk (in the heat) to the Capital building. I am very familiar with the drive since I spent the better part of a year working on a case that involved lobbying at the State Capital.

Did I ever use the genealogical collection in the State Library? Yes, very infrequently and less when I found that most of what I was looking for WAS ALREADY ONLINE!

Now what about reality. Reality is that the largest and most complete genealogical collection of books, microfilm, records and other resources in the State of Arizona has been closed for over 8 months with barely a notice by the same genealogical community that is now up in arms over the State Library. The Mesa FamilySearch Library in Mesa closed at the end of November, 2014 and remains closed to this day with no information on when it will open. Any mention of this by the present genealogical community uprising?

Here's an interesting fact about the collection of books in the Mesa FamilySearch Library. All of the books that are out of copyright or where the copyright holder gave permission, have been digitized and are now online on's Books collection.

I have written a number of posts recently about the challenges faced by libraries. It looks to me like some in the genealogical community are in the position of shutting the barn doors after the horses have all escaped. Book technology is changing rapidly. State governments are not immune to the changes. The issue here is not where the collection is housed, but whether or not the State will make the information contained in those books and documents available to the entire state and not just to those who are interested enough to drive and park in downtown Phoenix.

The movement to digitize the materials in the State Genealogical Library should have started years ago. Those genealogists around the world who are concerned about the closure of libraries, need to wake up and see that technology has passed them by. My last question is how many of books and other records in the Arizona State Genealogical Library are already online? Anybody know the answer to that question?

If you are a genealogist in the United States, do you know the ratio of what your state has in genealogically important documents to the number online? By the way, when did I ever avoid a controversial topic?

Thursday, July 30, 2015

What Constitutes Publication in a Copyright Case? Part One

This post addresses some unfinished business concerning my recent post about some U.S. copyright issues. There are two very vague areas in the U.S. copyright law: fair use and publication. Neither of these "legal doctrines" are explicitly defined in the statutes. I will first discuss publication and then in a subsequent post, fair use.

Genealogists seem to get into this issue in a big way when they start to worry about who can or who cannot publish an old photo, diary, document or etc. The main concern is that there was and still is an issue with the term of copyright coverage to "unpublished works."

Before I begin, I want to clarify my legal position. I am a completely retired attorney from Arizona. I now live in Utah and I no longer practice law in either state. My opinions are just that: opinions. During the time I was actively practicing law, I was consistently involved in what is now called "intellectual property" law although my main practice was commercial litigation. I have taught a number of classes on both U.S. Constitutional law and Intellectual Property law. What I write is not to be construed as legal advice to anyone for any purpose. That said, here I go again.

In the area of copyright law, one of the most recurring questions involves the issue of when a work is protected. The current copyright law is clear. Quoting from the Frequently Asked Questions on the U.S. Copyright Office website,,
When is my work protected?

Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
This seems straight forward and simple and it is. But the real issues start to arise when we consider works created at some point in the past. The application of the law depends on the law in effect at the time the work was created and copyright law has changed many, many times over the years from its first mention in the United States Constitution, Article 1, Section 8.  The best and most current summary of the U.S. Copyright Law is from Cornell University's Copyright Term and the Public Domain in the United States, 1 January 2015. As this chart explains in a footnote:
"Publication" was not explicitly defined in the Copyright Law before 1976, but the 1909 Act indirectly indicated that publication was when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.
In law, the word "or" is important. The definition from the 1909 Act did not limit publication to the commercial sale but included when the work was "publicly distributed." What does this mean? Hmm. That is the real question. Let's see what the law has said about this issue. One way to begin to find out the status of any legal issue is to review the scholarly journal articles on the subject. Law students and law professors thrive on publishing articles and they sometimes do an adequate job of reviewing the law in any given area.

Unfortunately for those uninitiated to the law of copyright, there is a legal doctrine called "common-law copyright." The definition of common law copyright, like many legal terms, is circular:
Common law copyright is the legal doctrine which grants copyrightprotection based on common law of various jurisdictions, rather than through protection of statutory law, like the federal copyright statute. See Wikipedia: Common law copyright
I have not raised this issue particularly before, because it is somewhat outmoded. Quoting from the Wikipedia article:
In part, it is based on the contention that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property. The proponents of this doctrine contended that creators had a perpetual right to control the publication of their work (also see perpetual copyright).[citation needed
The "natural right" aspect of the doctrine was repudiated by the courts in the United Kingdom (Donaldson v. Beckett, 1774) and the United States(Wheaton v. Peters, 1834). In both countries, the courts found that copyright is a limited right created by the legislature under statutes and subject to the conditions and terms the legislature sees fit to impose.
I left in the cross-references in case you want to investigate this issue further. I would note that Wikipedia is just a convenient starting point for research on any given subject. In many cases, I am compelled to go much further and examine original court documents and decisions.

The U.S. Supreme Court case of Wheaton vs. Peters 33 U.S. 591 (1834) is the beginning point for understanding the issue of publication. The opinion is quite long (not unusual) and addresses the issue of the relationship of the common law (derived from the historic English law) to statutory law or the laws created by the U.S. Legislature. The question, put as simply as I can, is whether or not an individual can claim a copyright to a document under the common law (court decided law) or whether copyright protection originates solely from statutory provisions? The division in the United States is between the law of the individual states and that of the Federal Government. If there is a common law copyright claim, then the right is perpetual. Think about that.

You can search the complete version of the current U.S. Copyright Law from Circular 92, Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code on the website. 

The pertinent amendment to the existing copyright law is as follows:
[CopyrightAmendments], Pub. L. No.102-492,106 Stat. 3145 (amending §107, title 17, United States Code, regarding unpublished works), enacted October 24, 1992.
Here are the basic provisions of the law contained in Sections 102 and 103:
§102 · Subject matter of copyright: In general 
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: 
(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
§103 · Subject matter of copyright: Compilations and derivative works 
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. 
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
 The important provision for the purpose of unpublished works is in Section 104:
§104 · Subject matter of copyright: National origin 
(a) Unpublished Works.—The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.
Section (b) continues with published works.

What then does the law state about the terms of copyright coverage for "unpublished" works? What then constitutes publication? Good questions and the reason for this blog post.

The key provision of the statute from a legal standpoint is in Section 412:
§412 · Registration as prerequisite to certain remedies for infringement 
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for— 
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or 
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
OK, what this means is that in any action for infringement of a copyright, you must follow the provisions of the statute to claim statutory damages or you are limited to your "actual" or provable damages.

Let's suppose you have a photo of your grandmother taken in 1900. There are a series of questions that need to be asked about the application of any copyright claim by the photographer. This list is not complete but should give you an idea of the questions that may be raised:
  • When exactly was the photograph taken?
  • Who took the photograph?
  • Was the photograph ever published?
  • Is the photographer still alive?
  • When did the photographer die?
  • What happened to the photograph after it was taken, assuming it was unpublished?
These are some of the actual questions I would ask you about your photograph if you were to consult with me before I retired. In fact, they are the same types of questions I asked when I took a Federal District Court case involving a copyright claim to a photograph. 

Let's further suppose that someone besides a member of your ancestral family took the photograph. How did the photograph come to be in your possession? That is a crucial question. 

Now, we have a basis for wondering if the photograph was ever published. If we go to the Cornell University Chart, referenced above, summarizes the law concerning works that are never published and never registered (I may get to registration later) as follows:
  • Unpublished works have a term of the life of the author plus 70 years for works from authors who died before 1945. 
  • If the work was anonymous or pseudonymous or "made for hire" i.e. of corporate authorship, then the copyright term is 120 years from the date of creation for works created before 1895.
  • If the work is unpublished and the date of the death of the author is not known, then the copyright term is 120 years from the date of creation for works created before 1895. 
There is a footnote about this that says:
Unpublished works when the death date of the author is not known may still be copyrighted after 120 years, but certification from the Copyright Office that it has no record to indicate whether the person is living or died less than 70 years before is a complete defense to any action for infringement. See 17 U.S.C. § 302(e).
Now it is time to stop for this post and continue in Part Two. 

Mac Version of Ancestral Quest Coming Soon

I recently had an opportunity to talk to Gaylon Findlay, the President of Incline Software, best known as the developers of the Ancestral Quest genealogy program. He showed me a brief demo of the new, Apple Macintosh version of Ancestral Quest. It is running under a customized version of CrossOver Mac, the emulation program that runs Windows software on the Apple OS X operating system computers. The Ancestral Quest Mac version is supposed to be released in the next few days. I am anxious to get a copy and will report on the full program as soon as I have had time to evaluate it.

What I did see was impressive. Ancestral Quest always receives some of the best reviews on the website.

Wednesday, July 29, 2015

The Value of Old vs. New Genealogy or Myth vs. Fact

Genealogy is not technology. It is historical research. Genealogy does not go out-of-date. History does not change merely because we get faster or more powerful computers and computer programs. The digitized records that are going online by the millions, were always there, waiting for a careful and persistent researcher to find and use. I recently was following an online discussion where several disparaging references were made about "old books in the public domain." The focus of the discussion was the assumption that all ebooks were valueless to genealogists because they were limited to old, inaccurate genealogies. Those participating in the discussion, who were supposed to be genealogists, seemed totally unaware of the reality of ebooks and what is happening in the digital world.

Let's start with the Family History Library in Salt Lake City, Utah. The collection in Library is described as follows on its webpage.
The collection includes over 2.4 million rolls of microfilmed genealogical records; 727,000 microfiche; 356,000 books, serials, and other formats; over 4,500 periodicals and 3,725 electronic resources.
Now, the microfilm is being processed and digitized into the Historical Record Collections at an ever increasing rate. There are no current statistics available, but here is a sample of the rate of digitization from 2012 in a post entitled, "Executive Corner: FamilySearch 2012 Accomplishments:"
What Was Added in 2012
  • Digital Images Added: 297,695,589
  • Indexed Records Added: 408,154,952
  • New Collections Added: 381
  • New Countries Added: 10
  • New Books Added: 40,849
From the same post, here is the status of the online collections from FamilySearch at the beginning of 2013. Interestingly, in all of the discussion online that I mentioned above, there was not one reference to FamilySearch. Where I have later numbers, I have included them in parenthesis and in bold.
  • Number of names in searchable databases Over 3.5 billion
  • Number of historic records published online each month Over 35 million
  • Number of digital images published online each month from
  • original source documents Over 33 million
  • Number of searchable historic record collections online 1,363 (current number: 2020)
  • Number of indexed names published per year Over 200 million
  • Average daily page views Over 5 million
  • Average daily visits Over 200,000
  • Average daily visitors Over 85,000
  • Page views since launch Over 16.6 billion
  • Visits since launch 712 million
  • Visitors since launch 308 million
  • Number of online indexing volunteers Over 200,000
  • Number of registered users Over 1 million
  • Number of family history centers 4,600 in 126 countries
  • Number of digital books Over 60,000 (current number: over 150,000)
How many books are in the Family History Library, the largest such library in the world? The number given above from the Library is approximately 356,000. How many of those books have now been digitized? Well, the numbers from 2012 are really out-of-date. The current number of digitized books in the online collection on is well over 150,000. I cannot find a current number; the most current number I have is from October of 2014.

What do these numbers show? First of all, about half of the paper books in the Library have already been digitized and are online for free from If I were to buy into the opinions of the genealogists in the online discussion, I would have to assume that almost half of the books in the Family History Library were inaccurate and out-of-date because they were now in ebook format.

The reality here is clear. The digitization of a book has nothing at all to do with its value to a genealogical researcher. Digitization merely makes the books more accessible. Of course, I have not yet added in the following information about the number of genealogy books on these websites:

  • has thousands of digitized books including some recent publications such as The Great Migration and The Great Migration Begins, 1620-1635.
  • has 120,644 genealogy books completely digitized and freely available online
  • The Digital Library has 13,657,194 digitized volumes and 603,823 of those digitized books come up with a search on the term "genealogy." Many of these are fully digitized and freely viewable online.
  • Heritage Quest Online, which is available through many public libraries, has 28,000 family and local history books online. Many of these are currently published and copyright protected books.
This list could go on and on. I mentioned previously that one of my friends at the Family History Library was surprised that many of the paper books had been removed from the shelves. These were not "old, useless books," but valuable research items. The truth is that all these removed books are now freely available online. Can we assume that all these books are out-of-copyright and useless? No. In fact, the Family History Library and many other libraries are making plans to allow current copyright protected books to be checked out online, just like any other book in the library. 

Some libraries have truly unique and genealogically valuable books and other records. These should be made more available to all of the world's genealogists through digitization. Complaining about the availability of paper books is what is really out-of-date. Rather than complain about the closing of libraries paper book collections, perhaps more effort should be made to allow free access to all books online. 

By the way, if an old "genealogy book" was written a 100 years ago, it does not mean the book has no value or that modern books are more "accurate." You have to understand that when an old book was written about a family, many or all of the people in the book were still alive and could provide their own information. There well may be no listed sources, but the information is first-hand. There is no more guarantee that the current copyright protected book is any more accurate than an old one. It is time to realize that we will all be reading books online or on our mobile devices before long. 

Tuesday, July 28, 2015

U.S. Land and Tax Records Research Guide now on

The third of a series of books that continue to be added to by is the U.S. Land and Tax Records Research Guide. The primary authors of this series are Holly T. Hansen, Arlene H. Eakle Ph.D and James L. Tanner (me). The series also includes the following titles already on

You can find the books on by searching for the book title or by searching for any one of the authors.

These books originate in a continuing series of week-long Research Retreats held in Salt Lake City, Utah with hands-on instruction at the world famous Family History Library. The next event will be held from August 17, 2015 to August 22, 2015. The event includes both hands-on help from the staff, but also classroom training. The next Retreat is as follows:
New England Library Learning Experience
Research at Family History Library / Classroom & Lodging at Crystal Inn Hotel
230 W. 500 S.
Salt Lake City , Utah 84101
The book series has been created as the classroom material for the Retreats. If you cannot attend the classes in person, the entire class offerings will be made available in a live broadcast in the form of a webinar. See the New England Virtual Family History Expo, August 17, 2015 to August 21, 2015. The webinar classes are also recorded and a CD containing the entire class presentations will be available for purchase in addition to the books online on You can keep posted on the upcoming Retreats by going to the Events page on

To see all of the books, including those that will be coming soon to, visit the Store. There you will find the books, the CDs of the recorded webinars and many other helpful genealogically related products.

As I mentioned in a previous post, Holly, Arlene and I plus some others such as Ruth Maness, AG, are the authors of these books. We do get paid for our writing and teaching as we have for many years in our association with If you have attended a genealogy conference over the years sponsored by you have experienced the high level of professionalism of Holly Hansen and her staff. By teaching the classes, helping attendees with their research at the Family History Library, publishing the books and the recordings of the webinars, we hope to reach an even larger audience than we did by holding the conferences.

The Family History Guide added to FamilySearch App Gallery

The website is large and fairly complex. Since its introduction, there has been a need for a "front end" or a way to understand and learn about all of the resources. This new "App" in the App Gallery clearly addresses that challenge. The Family History Guide is described as follows:
The Family History Guide helps you get started - and get farther - with your family history. There are links to over 1,000 videos and articles, all integrated into a step-by-step learning plan for learners of all levels. Projects include Family Tree, Memories, Descendants or Ordinances, Discover (research for over 35 countries), Indexing, Help, and Technology. Classroom materials are also available for instructors who want to teach using The Family History Guide.
This is an organized, structured approach to learning about Quoting from a comment by blogger, Susan Lynne Maxwell:
This is such a great tool for beginners, intermediates and for advanced family historians. It holds your hand while it guide you through a learning process or even refreshes your skills. You have goals that can be tracked using tracker sheets so you know what you have accomplished and what you have left to learn. FamilySearch and others offer such great material and this tool takes you first to some of the most important videos and documents to help you learn. Then as you get more comfortable with the process you can go all the way through the discovery process honing your research skills and and documenting your family memories. This tool is for everyone!
OK, so since when do I praise a new program so effusively? The answer is that this program, The Family History Guide, addresses a need that has been floating around for years.  In my experience, day after day, answering questions from patrons at the Family History Library and others, I have seen a need for this type of product. The Family History Guide is a structured, very professional and complete introduction to genealogy as well as the specifics of

To get started with The Family History Guide, you should watch the short introductory video.

All you need to do from the startup page is to click on the Get Started link. We have already planned to do a series of classes at the Brigham Young University Family History Library specifically on The Family History Guide.

Monday, July 27, 2015

Is historical research intellectual property?

If you have been involved in genealogical research or other historically related areas of study, you have probably heard many references to "intellectual property." We now even have whole law firms that advertise that they practice intellectual property law and you may hear a reference to "intellectual property rights." From my perspective, this is another one of those situations where a vague and undefinable interest is evolving into a "right."

As set forth on the website for the World Intellectual Property Organization, the definition of "intellectual property" is as follows:
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. 
IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
From a legal standpoint, there are significant differences between patents, copyrights and trademarks. Those differences are so significant, that it is very unlikely that you will find an "intellectual property" law firm that has anything to do with patents. It is also important to point out that the United States government separates copyright from patent and trademark practice. Copyright law is administered by the United States Copyright Office. Patents and trademarks come under the jurisdiction of the United States Patent and Trademark Office. Any attorney can practice law in the area of copyrights and call themselves an intellectual property attorney. Patent attorneys, on the other hand, must be registered with the Patent and Trademark Office to practice law in this area. In Arizona, for example, there are about 500 registered patent attorneys and well over 16,000 attorneys in all areas of practice. See American Bar Association, National Lawyer Population by State (2013).

Lumping these different areas of law into an artificial umbrella called "intellectual property" obscures the fundamental differences between these distinct areas of the law. But what is more egregious is the fact that references to "intellectual property" contain references to vague "rights" that are clearly not protected by any legal process or statute. 

Now, as genealogists, we find ourselves in a quandary. We do historical research. We discover documents, most of which are not covered by copyright or any other "intellectual property" protection and we convert those documents (organize, extract, summarize etc.) into our "own work." Some of the documents we use, such as U.S. Federal Census records, are clearly exempt from any copyright protection as U.S. Government Documents. Most of the other documents we consult are either long out of copyright due to the age of the documents or otherwise not covered by any sort of protection. In some cases and in some other countries, the same types of documents may still be subject to copyright claims by the originator or the government. 

The real question, from the standpoint of genealogical research, is not the copyright status of the documents we research, but the extent to which we can claim any rights to the information and to the documents themselves when the source documents are clearly not covered by any claim of copyright? In other words, is historical research per se, intellectual property? My answer is a very definite "it depends." The answer lies in this statement from the United States Copyright Office:
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."
The best summary of the U.S. copyright law is found on the webpage, "Copyright Term and Public Domain in the United States, 1 January 2015" by Peter B. Hirtle of Cornell University.

Does historical research fall into any of those categories? No where in the area of copyright (intellectual property) claims does this issue become more tangled and obscure than with the issue of photographs both old and new. One genealogical issue that is commonly discussed with excessive claims of rights is the headstone photo. If I go out and take a photo of my grandfather's headstone, is my photo subject to my claim for copyright? My first question, of course, is why would you want to make a claim for copyright for a headstone photo? Another question, even more obscure, is whether or not the headstone itself is covered by some claim of copyright? The answer can be yes to both questions. Should we then stop making photos of headstones and publishing them online? Strict and legalistic interpretation of the existing copyright law in the U.S. would seem to mandate a yes to that question also. Sometimes, those hosting photos of headstones try to avoid liability for publishing the photos by disclaimers and other legal language. Are these disclaimers effective? Interesting question.

Let me posit a hypothetical situation. Suppose a photographer takes a photo in 1940 of your great-grandfather. You find the photo among the effects of your father when he passes away. You are surprised and happy to have a photo of your great-grandfather who you never met or knew. Can you publish the photo online for the enjoyment of other family members? Some attorneys would counsel you with a long discussion about copyright and its ability to be inherited and then tell you that the copyright to the photo was still owned by the photographer and that even if the photographer were dead, you would have to have permission from his or her heirs to publish the photo. Why not just throw the photo away and avoid the issue?

Let's look at the reality of the situation. Yes, there is a potential claim for copyright. If we go to the copyright law (See the Summary above from Cornell University), we learn that a work published between 1923 through 1977 must have a copyright notice and that the failure to comply with the required formalities render the work in the public domain. Ha, you say. But then the overly zealous attorney responds, but what if the photo was not "published?" Unpublished works are protected for a period of time equal to the life of the author (photographer) plus 70 years.

This situation poses a number of seemingly unsolvable issues. First, who took the photograph? Unless there is some identifying mark on the photo, such as a the name of a studio or address etc., there is likely no way to determine the photographer. Second, how do you know whether or not the photo was ever published? The U.S. Copyright Office describes publication like this:
Published or Unpublished? Under copyright law, publication is the distribution of copies of a work—in this case, a photograph—to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes publication. 
However, a public display of a photograph does not in itself constitute publication.
The definition of publication in U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published.
You might want to read the Copyright Tutorial from the American Society of Media Photographers.

What about all the photos on Instagram, Flickr and Facebook? Now we are into another huge issue. I cannot give anyone legal advice on this issue. I recommend that if you have a real problem and need an answer that you seek help from a competent attorney who practices in the area of copyright law.

Unfortunately, the status of our copyright law in the U.S. asks more questions than there are answers. If everyone who had a copyright interest exercised their full legal rights, much of what we see today on genealogy websites would disappear and our ability to discover and document our families would be severely curtailed.

The lack of clear and concise guidelines in the U.S. Copyright Law leads some to advise extreme caution. It also encourages genealogical researchers who really have no interest practical or otherwise to a claim for copyright to assert such claims and become irate and abusive when they believe their rights have been violated. In my hypothetical above, personally, I would look at the photo. If there is no copyright mark or claim, I would consider it to be in the public domain. I would suggest that the photo was either taken by your father (in whose possession it was found) or someone else. If someone else, then the fact your father had the photo would indicate to me that it had been published. If your father took the photo, then simply ask any other heirs for their permission to publish the photo.

I cannot council anyone to take such a risk however. What about the copyright claim to a headstone? Yes, headstones can be copyright protected, but the same time limits apply. However, there is also another issue dealing with the ability of a property owner to regulate the activities on their property. Hence, a cemetery owner or operator may restrict photography on the premises.