RootsTech 2014

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

Thursday, February 27, 2014

Newspapers, Obituaries and Copyright -- What is and what is not protected

There have been quite a few blog posts and comments about FamilySearch.org's "Year of the Obituary" Project. However, there are some issues with the availability of current or relatively recent obituaries. I have heard the statement that "All obituaries are in the public domain." I do not know where that idea came from but it is not correct. An obituary is a "work" like any other work under the United States copyright law or the law of any other country that is a signatory of The Berne Convention, the international copyright agreement.

Most newspapers in the United States claim copyright protection for their content. In a post dated 19 March 2012, Judy G. Russell, The Legal Genealogist, wrote an excellent analysis of the application of copyright law to newspapers entitled, "Copyright & the newspaper article." The post was address specifically to the republication of existing newspaper articles. As I have done in the past, Judy also referred to a compilation of the existing U.S. Copyright law made by Peter B. Hirtle of Cornell University. This Cornell article is a must-read for anyone involved in genealogy. The article contains a table explaining in detail all of the time limits for enforcing a copyright in the United States. It is called "Copyright Term and the Public Domain in the United States, 1 January 2014."

If you take the time to review Judy's article and the one from Cornell University by Peter B. Hirtle, you will see that obituaries, when written and published within the time when a copyright claim is valid, are certainly covered by copyright law either from the newspaper itself or from the person who wrote the obituary.

Deciding whether or not a particular obituary or newspaper article is covered by a copyright claim can be extremely complex. They are definitely not automatically in the public domain. Usually in the United States under current practices, the family of a deceased will compose and submit an obituary for publication either through a mortuary or directly to a newspaper. In either case, the mortuary or the newspaper will have an agreement, signed by the parties, often as a routine form, that will allow the mortuary or newspaper to publish the obituary. Some of these agreements assign all publication rights to the newspaper. Some of these agreements are silent on the issue of copyright ownership. In some cases the family submitting the obituary may be assigning all of their rights to the newspaper in other cases, the person or persons who wrote the obituary may still have a copyright claim to its content.

In some instances, the assignment of rights might be considered to be a license. For example, if you submit a photo, document or story to FamilySearch.org, their Terms and Conditions contain the following statement:
Licenses and Rights Granted to Us. By submitting content to FamilySearch, you grant FamilySearch an unrestricted, fully paid-up, royalty-free, worldwide, and perpetual license to use any and all information, content, and other materials (collectively, “Contributed Data”) that you submit or otherwise provide to this site (including, without limitation, genealogical data and discussions and data relating to deceased persons) for any and all purposes, in any and all manners, and in any and all forms of media that we, in our sole discretion, deem appropriate for the furtherance of our mission to promote family history and genealogical research. As part of this license, you give us permission to copy, publicly display, transmit, broadcast, and otherwise distribute your Contributed Data throughout the world, by any means we deem appropriate (electronic or otherwise, including the Internet). You also understand and agree that as part of this license, we have the right to create derivative works from your Contributed Data by combining all or a portion of it with that of other contributors or by otherwise modifying your Contributed Data.
You may technically have some sort of claim to a copyright for the uploaded photo, document or story, but legally you have no way to enforce that copyright against FamilySearch.

In addition, many of the obituaries in the United States are now available in large, online newspaper database programs. I am also aware that some of these programs claim an interest in the newspapers in their online collections. Right or wrong, copying from these databases is limited by their own requirements.

It would be nice if all obituaries were automatically in the public domain, but that is not the case. Maybe this issue should be addressed. Read through Judy's analysis and then look at the Cornell table and tell me what you think.

1 comment:

  1. Look at Randy Seaver's account of an experience with indexing parts of a so-called Idaho obituaries database. The obituary shown has no publication data (Newspaper name, place, date). Without identified specific source for each document, such databases will not be very useful in themselves, and the copyright issues are still outstanding.

    ReplyDelete