Why I Re-Write Obituaries – June 26, 2019

Standard Disclaimer:

I am not an attorney and any comments I post are not intended, nor should they be construed, as legal advice. If you need legal advice, please consult a legal expert who is familiar with the area of legal expertise you need.

My main goal with regularly posting about copyright and Federal Trade Commission (FTC) affiliate link guidelines is to help bloggers and vloggers avoid the mistakes that so many others are making. For every blogger / vlogger I see follow copyright law and FTC guidelines, I see a lot more not following them. It’s worse for the FTC guidelines as many of the bloggers / vloggers will link to the FTC guidelines, but don’t appear to have read them, based on how they aren’t following them.

When I add an obituary to Find-A-Grave, Ancestry.com, or elsewhere, I re-write it.  I do it to avoid copyright issues. Yes, at least in the U. S. and many other places, obituaries are subject to copyright law. A simple death notice, like John Doe died April 35, 2075 (yes I added a non-existent date intentionally), may not be covered by copyright as long as it’s pretty simple in language. Throw in a bit more detail –  John Doe died April 35, 2075 while in the middle of swimming the Pacific Ocean in blue swim trunks and taunting sharks. Then, you are dealing with copyright issues if you quote it. Contrary to popular belief, including one graving website that shall remain nameless, giving credit doesn’t protect you from a copyright lawsuit. It will protect you from a plagiarism lawsuit, but that’s it. Note: facts are not copyrightable, but how they are presented can be copyrighted.

Who owns the copyright to an obituary? That depends on who wrote it, if they are an employee of a company (newspaper, funeral home, etc.) doing it in the performance of their work duties – the employer owns the copyright, family member, combination of one or more of the above. In rare cases, some newspapers require you share copyright with them if they publish the obituary. Most  newspapers don’t go that far, but a small percentage do. I will distinguish work for hire as most people get this wrong. Hiring somebody to do something is not automatically a work for hire situation. They may be considered an independent contractor in which case the copyright belongs to the independent contractor unless the contract specifically states work for hire.

“Fair use” is a very limited exclusion in U. S. copyright law. Not all countries have such an exclusion. In fact, most people claiming the “fair use” exclusion have not read, or if they have read it, they don’t understand why their use is not “fair use.” Plus, using it on a commercial site like Ancestry.com, YouTube, etc. tends to invalidate the “fair use” exception.

For example, a photo studio took photos of my daughter years before the Internet was something that most people could access. The contract didn’t address online usage, but the contract made it clear the photo studio retained copyright, a pretty common feature with most photo studios and professional photographers. Should I add one of those photos online and the studio become aware of it, I would get hit with a take-down notice and a copyright lawsuit. Which is why I haven’t added her photos from that studio online anywhere.

The U. S. Supreme Court (SCOTUS) made that clear in rulings where they defined work for hire. Briefly, here’s the U. S. Copyright Office’s PDF on the subject: https://www.copyright.gov/circs/circ30.pdf. It’s important to understand that employee in the performance of their duties is more about the employer (the photo studio in my last paragraph) owning the copyright than me, the customer, owning the copyright.

When I graduated from college, a photo studio took my graduation photographs. One of the options they included was the right to share copyright. It cost $80 for me to purchase the shared copyright and I only got the proofs with online versions of the photos, but it meant that I could do what I wanted with the proofs they sent me.

The other advantage to me re-writing the obituaries is that I now own the copyright to my versions of the obits. I follow a significantly different format from the standard format used in most obits; it is my own style. I also refrain from flowery language used in the original obit.

Just a warning, both Find-A-Grave and Ancestry.com make it clear that if they are sued for any copyright violations you make, you are responsible for their legal costs. You also agree that you won’t violate Intellectual Property (IP) rights by anything you add to the sites.



About Wichita Genealogist

Originally from Gulfport, Mississippi. Live in Wichita, Kansas now. I suffer Bipolar I, ultra-ultra rapid cycling, mixed episodes. Blog on a variety of topics - genealogy, DNA, mental health, among others. Let's collaborateDealspotr.com
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1 Response to Why I Re-Write Obituaries – June 26, 2019

  1. Pingback: Fake Reviews and Plagiarism: Spilling the (Skimm) Tea — The Bibliofile | Ups and Downs of Family History V2.0

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