Is it legal if I upload an image I take myself and edit?

+4 votes
Specifically, if I go to an FHC and view a deed (or other record) on the computer, then take an image of that deed and do some cropping, etc., is it okay to upload my edited image to Wikitree? Does my own taking and manipulating the image turn it into my own image? Or is it problematic because I took the image of a source and I don't know if that source is public domain?

I think, in particular, of the lawsuit brought against Shephard Fairey over the "Hope" poster, which he created by doctoring a photo of Obama, which was not his own photo. But what if I pull out a phone and take an image of a computer screen, so it is my own photo, and then upload that?
in The Tree House by Barry Smith G2G6 Pilot (220k points)

This excerpt from the FamilySearch terms of service would seem to answer the question:

  • 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. 
That's not clear to me. You can post a transcription of content, so what does it mean "you may not post content from this site." Is my photo of an image included under "content from this site", or isn't it? Especially since the content wasn't generally available to users of the "site", even those who have logged in.

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.


 This directly contradicts the use of the citations offered by fs that they quite obviously expect people to copy and post elsewhere.  The "content" of the documents viewed on fs is / are public domain.  You cannot copyright freely available information.

Rather than arguing the point here, this is the contact information posted with FamilySearch terms of service:


For further assistance or information regarding Church trademarks and copyrighted materials, you may contact the Church’s Intellectual Property Office at:

Phone: 1-801-240-3959 or 1-800-453-3860, ext. 2-3959 
Fax: 1-801-240-1187 

Updated: 2019-12-10

4 Answers

+4 votes
Best answer

Edison has provided a comprehensive discussion of the copyright issues (or lack thereof).  To summarize, a reproduction of a public domain document is not eligible for copyright protection in the U.S.  Full stop.  Importantly, FamilySearch (nor Ancestry) makes no copyright claim for the public domain documents they image.  FamilySearch’s Terms of Use prohibit almost any sharing from their site, even in ways they clearly don’t intend as Melanie pointed out. Their references to “further assistance or information regarding Church trademarks and copyrighted materials” and Permission to Use Church-owned Content don’t apply to public domain documents by definition.

I have asked FamilySearch in the past about posting public domain documents from their site on Wikitree.  The first example was a U.S. census document; their reply was “The U.S. Census is not a copyrighted material.  As such, you can do and copy, print or whatever you wish with it.  It should matter not, where your copy came from.”  A second time I asked, their response was (paraphrasing from memory), “FamilySearch doesn’t own most of the documents on the website.  We license it from others.  You would need to ask the records custodian.”  Please understand that the license terms are between FamilySearch and the licensor.  The license may limit what FamilySearch can do with the records, but it doesn’t apply to anyone else.  Permission from the records custodian is not needed to use public domain documents as they’re in the public domain which means they are free to use by anyone for any purpose.  The entity that has physical possession of original public domain documents may try to restrict access to them, but they have no say in what happens to copies not in their possession. 

If FamilySearch believes a user is violating its Terms of Use, they are free to restrict access to that user.  Those Terms are no doubt written by a lawyer (or team of lawyers) who are trying to retain as much control as possible, even if doing so inhibits FamilySearch’s genealogy mission.  Regarding Wikitree, it complies with copyright laws.  It has no restriction on the posting of public domain documents obtained from any source.  Trying to restrict the sharing of public domain documents and information is bad for genealogy.  Having said all this, in most cases it’s unnecessary to post images to Wikitree that are readily available via link to FamilySearch.  For a recent similar discussion regarding, see I seem to have acquired a volunteer net-nanny.

by Kerry Larson G2G6 Pilot (166k points)
selected by Edison Williams

Well, fraggle rock! So I simply could have telephoned you about this question, let you answer it, and saved myself all that typing...

Not my question (and it's still unclear to me if the original documents Barry is using are in the public domain), but I think this answer is the one that deserves the gold star.

I wondered why my phone wasn't ringing.  And we all know that you need to generate at least 5x what you wrote here every day just to keep your typing fingers in shape.  While I have your attention, I hope someday to learn more about giving up your license to practice medicine in Alabama. You know it's a crime to impersonate a doctor (well, maybe not in Alabama)?*

*Note:  The above comments are intended to be facetious and to not violate G2G rules, or as a slur against Alabama, or even against Edison.

Gotcha on speed-dial now for next time. wink

Alabama: a case of a very common surname and abbreviated first name and, somehow, the Alabama Medical Licensure Commission storing an exact email address in their records...mine rather than the practicing Dr. Williams. Received three reminder notices for license renewal between August and November, and contacted the state commission each time to tell them they had an incorrect email address, evidently to no effect. After the third mailing, I took it upon myself to locate and contact the correct Dr. Williams. Young guy, just a few years out of school; unfortunately we would never be confused in person. Got a fourth notice from the state commission in December. So I never took action to renew that license to practice in Alabama...but the good news is that the correct Dr. Williams did. First time I've ever had a state medical commission aggressively pursuing me to renew. I'm tempted to set some of my email to forward to Alabama's Dr. Williams, but I don't know him well enough yet to guess whether he'd find that as funny as I would...

I've heard that licensure standards have been practically eliminated during the pandemic.  Maybe they were aggressively pursing you!  They probably figured you had enough degrees and letters after your name to qualify.
+6 votes
The copyright of the image you take of the deed still belongs to the FHC - so NO you cannot upload their image no matter how much you have manipulated it.

You CAN however TRANSCRIBE the information and post those details to the profile, along with a link to the webpage where the original information is held.

My understanding is that the layout of the deed or other record is what is under copyright, The actual infornation is not copyrighted because those are FACTS and FACTS cannot be copyrighted. Thus the reason why transcription is allowed.

If you were to create a new and different layout for those facts then you would hold the copyright for the new record layout. Except for whatever facts get uploaded to Wkitree. Wikitree holds the copyright to the profile layouts.

And if you did create a new layout for those facts, it is of course not considered to be an original or a legal source.

Transcription really is the best way to go.
by Robynne Lozier G2G6 Pilot (944k points)
Robynne, of course I agree with you 100% about photographing an image of a deed - the image is most likely copyrighted.  My problem is that Barry did not identify "FHC", so I don't know where he's going to access the deed, although from what he wrote, it looks like he photographed the actual deed, rather than an image of it.

If it is the actual deed that he is taking a photograph of then he will be the copyright holder of that image, provided that whatever repository the deed resides in permits images to be made of their documents.
Family History Center. It was their digital image displayed on a computer screen, and I photographed the screen.

THANX for the clarification, Barry.  Whether you are permitted to photograph or otherwise copy their image and what you are allowed to do with your copy of it is going to depend on their copyright statement and terms of use.  I have never been to a Family History Center, but I gather they are run by the Mormon Church and would expect their copyright/terms of use policies are the same as, in which case Robynne's answer that you cannot use your copy of their image is correct.  In fact, it is possible that you are not even permitted to make your own copy of their image.  

My personal opinion is that it would be appropriate - as well as very nice - for these repositories to freely share their documents and images thereof for non-commercial use. Even when this is permitted, however, it puts us into a gray area because WikiTree is a for-profit corporation, but I have found that if I write to the places that have these images and explain that I want to use them to enhance a WikiTree profile, in every case they have granted me permission.  For one example of how I have done this, see Cesia Honig's profile.

How would it work, then, if the images family search has were actually photographed by a different entity?
Family search acquired the rights to the image from whoever scanned/photgraphed/whatever it or they were granted the right to use it in whatever way they are using it (maybe with the proviso that they not permit anyone else to help themselves to it from family search's website) - or else they are violating the law (but, of course, that's none of our business).  If the document itself is old enough to be in the public domain, that doesn't matter - the image of it that family search has is the property of whoever owns the image and that has probably not aged out of copyright.

If you pay whatever fees may be involved to acquire a document from some government office that stores these things and if that government office does not prohibit you from publishing an image of the document (there are at least a couple of United States states that claim exclusive ownership of their documents like that) ... then, you would have the right to scan or photograph the document and upload it to WikiTree, claiming that it was scanned from your personal collection.  In such a case, YOU would be the copyright owner of the image.
Let me update - my understanding of FHC at the time I posted my response was a Family History Society - NOT one of the Mormon church's Family History Centres. That never even entered my head.

I apologise for the confusion.

I still think Transcription is the best way to go with any BMD record - just to avoid these kinds of questions.
+8 votes

Copyright and intellectual property laws can get very tricky, especially depending under which jurisdiction the origination and the use occur. That's why there are intellectual property attorneys that get the big bucks.  wink

Pertaining to the United States, home to the Family History Centers and, of course, the U.S. government-created material (which, by definition is in the public domain if it is made public), I think an excellent answer to consult would be one from Chase Ashley back in 2015: I'm with Chase on this one. But then, I am in no way an attorney.

If the photo you are taking is of a scan or other exact reproduction of a U.S. census image, my vote is that the scanned image cannot, individually, be under copyright. There was a keystone case in 1999 U.S District Court for the Southern District of New York, Bridgeman Art Library v. Corel Corporation, that set a baseline precedent. Full text of the first adjudication in that case available here from Justia; the judgement on the appeal is here. Bridgeman's lawsuit was overturned both times, with the court ruling (paraphrasing) that an exact reproduction of two-dimensional works such as paintings and photographs  already in the public domain cannot be considered original enough for protection under U.S. law. "A photograph, which is no more than a copy of a work of another as exact as science and technology permits, lacks originality. That is not to say that such a feat is trivial, simply not original."

In other words, the Family History Centers or cannot (in my opinion as not an attorney) claim copyright of public domain documentation if their reproduction of it is unmodified. At least under U.S. law. If that reproduction includes modification adequate enough to be deemed a creative work--e.g., presenting the original with new annotation or formatting, or printing the original image on a T-shirt (in which case the printed shirt, not the original image used, would be subject to copyright)--that new work then becomes the copyright of the creator, or to whomever the creator has given those rights. An interesting read commenting on the Bridgeman case a few years after it was rendered is by Robin J. Allan in the University of Pennsylvania Law Review (Vol 155, pp. 961-989; link is to a PDF).

However, there is also a term in publishing called "compilation copyright": a "work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." For example, if I were to take all the U.S. census images for a small county in Nebraska; include, say, frontmatter, an introduction, and an index; reformat the census images to fit on an 8"x10" printed page and arrange them into chapters; and then print the result as a bound book, that book is now my copyright. But not the original images. In that same vein, when presents a digitized collection of public domain material on their website, that collected presentation is their copyright. But not individual images that are faithful reproductions of the originals.

Similarly, a compilation of facts or information cannot be copyrighted. As Robin noted, we're free to transcribe material that is in the public domain. A compilation can be copyrighted if there is a creative or original act involved, i.e., in the selection, arrangement, and/or presentation of materials. The protection then is limited only to the creative or original aspects of the compilation, not to the source material that was compiled. For reference: Title 17, Chapter 1, Section 103, United States Code.

by Edison Williams G2G6 Pilot (316k points)
Thanks, Edison. Unfortunately, it is probably some smaller municipal organization, not the US government, who created the deed books I was consulting.

Yeppers. And therein comes some of the copyright T&C (tedium and complexity). laugh

Most municipal governments will defer to their state's copyright policies...but if the state's laws don't force them, they don't have to. And the policies of some individual states aren't what you might call exactly Waterford-crystal clear.

Regardless, though, I would say that the matter of copyright as described really would have little to do with the FHC, but would reside with the governmental entity since the original material is of their creation. And as of January 1, all works published in 1925 shifted to the public domain in the U.S. regardless of whether or not they were federal documents. So we're now cool for all things pre-1926. Fitzgerald's The Great Gatsby, Hemingway's In Our Time, Virginia Woolf's Mrs. Dalloway, and many more are now in the public domain.

But there's still a heap o' complexity surrounding all things post-1925. For example, umpteen works fell out of copyright in the past 60 years because of the "renewal trapdoor": if a work was first published prior to 1964, and actual copyright renewal had to be filed during the 28th year following that publication or no more copyright. The process and expense of filing for scads of state/municipal records caused a lot of those to go out of copyright. But you can't know unless you research the specific category of records.

And prior to 1978 all works had to be published or separately registered to receive copyright protection at all (which requirement was removed by the 1976 Copyright Act).

I chimed in mainly because I feel there are some misconceptions about copyright law (at least U.S. law) and a lot of the digitized documents we use in genealogy, i.e., the pre-1926 stuff. Anyone can slap a © symbol on anything. Doesn't mean it's enforceable, actionable, or even applicable.

When I download a U.S. census page from Ancestry, for example, Ancestry has added zero creative work to the image. Ergo, under the Bridgeman v. Corel precedent, I feel perfectly free to save and use that image elsewhere. These are mostly for personal use only, or in the private area of my one-name study website. Mind you, this has nothing to do with WikiTree's internal policy, and it doesn't mean that if I started displaying thousands of those images publicly that Ancestry might not become perturbed with me and cancel my membership. But I've seen nothing in the law that indicates any such thing is prosecutable. And federal documents--from census to taxation to BLM records--are by law in the public domain; not Ancestry or FamilySearch or anyone can claim a copyright for merely reproducing them unless it falls under the value-add or compilation areas I mentioned.

Kinda like DNA: in some areas it's more complex than either-or, yes-or-no answers.

But then, nothing I say can be construed in any way as professional advice. I am not a lawyer, and since I didn't renew my state license, as of 1 January 2021 I can no longer practice medicine in Alabama.

A big question in my particular case is that the deed books I am looking would be classified as unpublished. If I could view them at home, then I suppose they would count as being published by FamilySearch. But when I go to the FHC, I use that precious time only to view images that can only be viewed at an affiliate of the Family History Library. I believe that may leave them classified as unpublished, but I’m not sure. And I don’t remember encountering a discussion of what US copyright law says about unpublished works.

Yeah; I can't comment other than to note that after the 1976 Copyright Act went into effect, the simple creation of a work and fixing it in a communicable form constituted copyright protection. In other words, it ain't copyrighted if you only thought about the exact music to Journey's Don't Stop Believin; you had to have written it down, recorded it...something, if you want to have a copyright case. The U.S. statute defines publication this way (which is only nominally helpful in the 21st century, but still):

"Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication."

Thing is, publication of a work by some entity other than the original creator of the work does not transfer copyright ownership to the publisher unless the creator has specifically granted some or all of his or her rights. What I do have a little past background with is book publishing, and negotiating, acquiring, and selling rights therein.

In other words (my opinion only), if records of a property deed or survey (the latter as a work for hire) were created by Mayberry County, USA, the mere distribution of the records in a scanned, digital form on the internet would never automatically transfer copyright authority to the distributor. The county might sign over all rights to the FHL--which seems a somewhat odd thing for a state/county/municipal entity to do--but without an express grant of rights the FHL would never be copyright owner of the original material, regardless of whether or not they were the first to "publish" it or allow "private" access to it at their libraries. If the material is in the public domain (which includes never being registered with the copyright office per the pre-1978 standards), the act of publication doesn't equal creation: the publisher can't claim copyright unless what they are offering has been materially changed from the original, a creative value-add. Otherwise, Project Gutenberg would now own the copyrights for everything from the King James Bible to Shakespeare.

Or Google would own them. surprise

When we see commandments of "thou shalt not copy or share" from entities who post scanned images of public domain documents or books, it's their internal policy only. In most instances (again Bridgeman v. Corel), legal precedent says what they're demanding has no connection to legality. It can be their policy, but it isn't enforceable copyright law.

I suspect that they would still be public records even if they weren't compiled by the US Federal Government.

Edison, the bigger question here is who took the pictures. The pictures, according to the Bridgeman Art Library decision, could be construed as adding originality to the original (which was just a piece of paper). I'm not sure if this has been tested anywhere in the U.S. court system, but it leaves ambiguities. Whether photos of public domain documents constitute an original work that is protected by copyright law would be the relevant question here, in my opinion. Does the act of photographing a document create a new work that has a whole new copyright life?

And if that's the case, then it depends when the microfilms were made - and again whether digitization of microfilm produces a new original work.

This is why I hate copyright and think we should completely get rid of it!!

Actually, the Bridgeman decision seems to me to be strongly on the other side of the issue, that any reproduction of material in the public domain without "distinguishable variation" is not newly copyrightable. At the heart of the Bridgeman case were paintings in the public domain that Corel Corp. took photographs of and then sold as royalty-free stock art. I actually own a couple of those CDs; used one of the images as the basis for a book cover back when I had a small book publishing business. Corel didn't attempt to claim copyright for the photographs they took, but Bridgeman tried to claim that they had already reproduced the paintings in photographic form and, therefore, Corel had infringed copyright. The U.S. District Court dismissed Bridgeman's claims initially in 1998 and in appeal in 1999.

In my not-a-lawyer opinion, there is far more opportunity to add originality to photographs of old-master paintings hanging in a museum than there is in the faithful reproduction of public domain documents or books. I'd go so far as to say that, in Barry's example, if he posed a model beside the FHC computer monitor, gesturing to it, and took a photograph of that staged setting, he could claim copyright for the resultant image, even though the image contained, in part, public domain material. But as I'll cite in a minute, I believe we have precedent that copyright protection isn't extended "where a photograph of a photograph or other printed matter is made that amounts to nothing more than slavish copying."

And the "slavish copying" thing (unfortunate term; not mine; quoting) doesn't always apply to just two-dimensional original material like a painting or a document. In ruling against the 1999 Bridgeman Art Library appeal, the court cited the 1976 L. Batlin & Son, Inc. v. Snyder case that involved the company's claim to copyright for a plastic reproduction of an old mechanical cast-iron coin bank that had passed into the public domain. That case decision was, in part:

"Absent a genuine difference between the underlying work of art and the copy of it for which protection is sought ... the constitutional demand could hardly be served. To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work. Even in Mazer v. Stein ... which held that the statutory terms 'works of art' and 'reproduction of works of art' ... permit copyright of quite ordinary mass-produced items, the Court expressly held that the objects to be copyrightable, 'must be original, that is, the author's tangible expression of his ideas.' 347 U.S. at 214, 74 S. Ct. at 468, 98 L. Ed. at 640. No such originality, no such expression, no such ideas here appear."

The Bridgeman decision also cited Burrow-Giles Lithographic Co. v. Sarony (1884) because, even though a century old, in it the Supreme Court held that photographs are "writings" within the meaning of the then-extant copyright law. At issue in that case, however, was not a photograph of a static, public domain item; it was a portrait and the photo was deemed sufficiently original by virtue of the subject's pose, the lighting, arrangement of background items and accessories in the photograph, etc.

It was later suggested that the 1909 Copyright Act protected all photographs independent of their originality, but that view was eventually rejected by the Supreme Court (Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350-53, 111 S. Ct. 1282, 113 L. Ed. 2d 358; 1991). In that decision the Supreme Court noted that "sweat of the brow" alone is not the "creative spark" which is the "sine qua non of originality." Which would seem directly applicable to, for example, the expense and effort of producing exact digital copies of, say, many thousands of census records, BDM, or land records, and then making them available to the public free or for-fee.

In the Bridgeman decision also was a reference to Nimmer on Copyright, by Melville B. Nimmer and completed by his son, David. This is a multi-volume set dealing with U.S. copyright law that has been cited in over 2,500 court decisions:

"As the Nimmers have written, there 'appear to be at least two situations in which a photograph should be denied copyright for lack of originality,' one of which is directly relevant here: 'where a photograph of a photograph or other printed matter is made that amounts to nothing more than slavish copying.' The authors thus conclude that a slavish photographic copy of a painting would lack originality, although they suggest the possibility that protection in such a case might be claimed as a 'reproduction of a work of art.' But they immediately go on to point out that this suggestion is at odds with the Second Circuit's in banc decision in L. Batlin & Son, Inc. v. Snyder."

The Bridgeman decision goes on to clarify that the mechanism of reproduction of public domain material also isn't relevant, whether a photograph, photocopy, digital scan, or microfilm:

"The requisite 'distinguishable variation,' moreover, is not supplied by a change of medium, as 'production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection.'" (citing Past Pluto Productions v. Dana, 627 F. Supp. 1435, 1441; S.D.N.Y. 1986)

The conclusion of the Bridgeman case was: "Plaintiff's motion for reargument and reconsideration of this Court's order granting summary judgment dismissing the complaint is granted. Nevertheless, on reargument and reconsideration, defendant Corel Corporation's motion for summary judgment dismissing the complaint is granted."

And again, my observations have nothing to do with WikiTree policy and terms of use. WikiTree disavows any knowledge of my actions. smiley I'm trying to address only the legality of using an existing copy, or making a new copy, of material already in the public domain.

Edited: Darned typos; tiny keys. Good thing I was never a surgeon. And the "edit" link is pretty close to the "hide" link. Just sayin'...

+2 votes
The short of it is: it depends. The longer story is largely the same. It depends dramatically upon the particular circumstances of the recreation of the image - and what this would lead to in a courtroom scenario is anyone's game. If we take the most dramatically cautious approach, then there are tens of thousands of potential copyright violations on Wikitree already. I'm not a Wikitree admin, so I don't know anything about the legal notices they get sent, so I have no clue how many or whether any get acted upon. But we I believe Wikitree administration has some sort of policy in place in regards to reproductions of texts, images, etc.

Some relevant discussion in the legal literature:

Copyright Protection for Computer Screen Displays by Jeffrey R. Bensen (

Derivative Rights and Derivative Works in Copyright by Paul Goldstein (
by E. Logan G2G6 Mach 3 (35.3k points)

A few more notes:

I don't think FamilySearch has any copyright over the actual deed books or their microfilmed copies thereof - what they have is indices of those deed books. The copyright would belong to the creator of the deed books. 

It's worth noting the concept of fair use here (

If we consider the four factors:

1) Purpose/Character of Use: It's very clearly educational, but the fact that Wikitree is not a nonprofit throws a wrench into things

2) Nature of the Work: I don't know what sort of deeds we're talking about. Recent ones would be government created and would be public record (indeed - we can all go look at copies of deeds). Older ones the compilation of is a different question (one I don't know the answer to), but the more relevant part is the distribution - was the deed "intended for public distribution"? I doubt that's the case, but the fact that old deed books are produced before 1926 would probably make them public by now anyways. 

3) Amount of the work used: It's only one deed from a collection of deeds. But whether we consider the "work" at hand the entire collection of deeds (or just from a single year, a single location, a single individual) or the individual deed is fairly ambiguous. 

4) Effect of the use on the potential market: Given that I don't think the deed books are being reproduced and sold, there would be no impact whatsoever. Family History Center's aren't selling access to their archives, to their websites, etc - what market exists for the deed books, deeds or images thereof?

Other relevant discussions (none of which are legal or academic):

The most relevant discussion in the first post is that of the Bleem! vs Sony case:

Take a wild guess which company instigated the fight that resulted in the current law regarding fair use and screen shots... none other than the Founding Father of Fair Use, Sony Corporation of Japan America. In the 80s, Sony was all about fair use as a defense to its controversial Betamax machines, but fast forward about twenty years, and Sony and fair use had an ugly divorce when Sony decried two-man company Bleem's claim of fair use when Bleem put side-by-side screenshots of Sony-copyrighted Playstation games on its advertising materials to demonstrate the Bleem emulator's superior rendering ability via a PC. Result?

Round One, 1984: Sony won. Fair use is fair enough for Sony Betamax.

Round Two, in the year 2000: Sony loses. Fair use is still fair enough for Bleem to use screenshots of Sony's copyrighted games. Talk about trying to have your cake and eat it too.

You can read a history of the case here. The relevance here is that Bleem! directly screenshotted a scene from a copyright game Sony had created and not only reproduced it, but used it in advertising and commercial sales. 

However, the actual composition of a "screen shot" of a video game and that of an image are very different, so it's hard to see a direct comparison. 

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