Obituaries and Copyright Law – September 26, 2020

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.

I sometimes see managers on Find-A-Grave say the obit needs to be as written. The problem is obits are covered by copyright law. Whoever wrote the obit owns the copyright. In rare instances, newspapers require shared copyright to publish an obit. Also, an obit may be in the public domain, but if you take a screenshot of an obit that is part of a collection on Ancestry, GenealogyBank, or some other website, that image is generally protected by the website’s copyright. For most obits post-1963, the copyright is still in force. If the obit is for a famous person, then the copyright could extend as far back as 1925.

If you read Ancestry’s Terms and Conditions (T&C), you agree that you are not violating Intellectual Property (IP) rights for any things you add to any of the Ancestry websites,including Find-A-Grave. In addition, if your actions include Ancestry getting sued, you agree to cover its attorney fees.

Where people often make the mistake is assuming that owning a photo means they own the copyright. I have photos of my daughter taken by a major photo studio. Dad taught me to read the fine print in contracts. In the fine print of this contract, it said the photo studio retained the copyright to the photos. Most people would assume it’s a work for hire as I paid the photo studio, but the Supreme Court of the U. S. (SCOTUS) addressed the issue in a case where the contract has to state it’s a work for hire or you have to be their employer. As a result, I haven’t posted photos of my daughter online as I know copyright is on the side of the photo studio.

For my college graduation, a different photo studio offered me photos with the standard disclosure it owned the copyright. In looking at the studio’s deals, I noticed an option where I only got the proofs, but they offered a deal. I could purchase shared copyright for $85. To me, that was a great deal. This meant I could post them online without having to deal with being sued for copyright violation.

Before someone assumes they won’t get sued for posting an obit still under copyright online, I wouldn’t rely on that. I see people on Find-A-Grave routinely posting recent obits online. At some point, they will post an obit where the copyright holder takes exception to it being posted.

I re-write any obits I add to Find-A-Grave in my own words. This also applies if I add an obit to any genealogy website. This includes if someone sends me an obit or adds an obit image to a memorial. I also reference the newspaper. I also remove living names if it’s likely the people are still alive as Find-A-Grave doesn’t want them listed. In essence, I create my own copyright as I avoid using the words used in the obituary. I also use my own format on how I layout the obit. This format is different than how most newspapers format their obits. While facts can’t be copyrighted, how the facts are presented can be copyrighted. I also look for other information that isn’t in the obit. I see the spouse has an obit that includes things not mentioned in the first obit. Again, I re-write the facts in my own words.

I regularly see people saying copyright lawsuits aren’t that common. They are very common. A lot more common than most realize. You often don’t hear about them as frequently the lawsuits are settled with a confidentiality agreement.

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
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