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.
The inspiration for this week’s Tombstone Tuesdays is Find-A-Grave. Unfortunately, none of the Find-A-Grave admins understand copyright from what I see. They expect people uploading photos, scanned obits, or adding information in the Bio section to understand copyright. Both Find-A-Grave, acquired by Ancestry, and Ancestry make it clear that you should only add items that you own the copyright to, you have permission from the copyright holder, or the information is in the public domain.
For public domain, anything published in the U. S. before 1925 is in the public domain. However, there are exceptions. When Ancestry, another genealogy website, or any newspaper archive site adds scanned images (PDFs or JPEGs) to their collection, the original image is still in the public domain, but the scanned image now has a separate copyright. Using those scanned images is a violation of the new copyright created by the website. On the off-chance, you can get access to the original document, you can use it without a problem. Using a scanned image in this case violates the copyright of the company that scanned the image as even if you take a photo or screenshot, you don’t create a new copyright for yourself.
When I see an obit, I re-write in my own style and my own words to avoid copyright issues. As Find-A-Grave requires removing names of living people, I remove those names unless I verify they have died. My style is significantly different than a standard obit. While the facts can’t be copyrighted, how they are written can be. In essence, I create a separate copyright for my version of the re-written obit.
Likewise, for photos, there is a separate copyright. At some point, Find-A-Grave and Ancestry will get sued for copyright violation. A little known clause in both websites is if either site gets sued because of your violation of copyright, you agree to pay their legal fees. I haven’t checked, but I am sure those fees will be substantial. With photos, the Supreme Court of the United States made it clear photographers and photo studios own the copyright to anything produced by them or their employees unless there is a clear “work for hire” exception in the contract. It’s why I don’t upload my daughter’s photos taken by what used to be a major photo studio chain. In their contract, it specifically states they own the copyright to any work done by them or their employees. A point often missed by people who aren’t familiar with copyright. Just because a photo studio releases stills for use as publicity stills doesn’t mean that you as a private individual can take those stills and post them to Ancestry or Find-A-Grave.
When I did my college photo studio photographs, the photo studio offered an option where I can purchased shared copyright. Other than the proofs I received, I didn’t get any new photos, but I went ahead and purchased the shared copyright as that meant I could them however I wanted.
It’s also why I stress learning about copyright. The lawsuit or legal fees you may avoid can be substantial. I researched copyright for several years before I wrote my first blog post. I saw where a blogger had gotten sued because they thought it was fair use. It went to trial, but they reached an agreement with the plaintiff before trial reached a judgment. I see many people wrongly assume that’s once something is posted online, it’s in the public domain. You will find it nowhere in copyright law. While the U. S. Copyright Office won’t answer questions about copyright, there are a good source for copyright: https://www.copyright.gov/.
I want to point that basic copyright in the U. S. is almost useless. You want full copyright as your ability to sue for damages requires full copyright. You can file a takedown notice with basic copyright, but you won’t receive damages for any violations.
Previous Tombstone Tuesdays posts: https://upsdownsfamilyhistory.wordpress.com/tag/Tombstone-tuesday/