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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.
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.
ReplyDeleteWhat is the harm in posting obits from pre 1920? sometimes it's hard to link families together and those obits do help. I see obits posted to www.findagrave.com quite often.
ReplyDeletethanks for any help.
Pre-1923 there are no copyright issues at all for U.S. Newspapers.
DeleteWhat kind of legal text can a person include in their own or their family member's obituary or its signed publication agreement to preclude the funeral home, newspaper, or any other entities from claiming copyright? Has anyone ever tried to copyleft their own or their family member's obituary under GNU GPL or Creative Commons CC0? There should be an ironclad way to put your own or close family member's obituary in the Public Domain in perpetuity, regardless of where the obituary is subsequently published and copied.
ReplyDeleteGenerally, publishing an obituary involves making an agreement with the publishing entity, i.e. for payment. The answer to your question is quite complicated. Too bad you didn't just contact me for an answer and posted anonymously. But I think I will use your question for the topic of another blog post sometime soon.
DeleteI have got a major beef with this issue. I worked as pressman, reporter and I informed our publisher I had put GNU copyright stating my name had to be accredited for some of my pictures. He told me the paper paid me so that relinquished my rights.
Delete*- Well here we go. We the people pay the newspapers to print our obituaries AND we pay the paper for a copy of their newspaper. Obituaries are often times the only documents containing Our Family History and the newspapers are asking to be paid a third time for the right to place these obituaries in our FindAGrave and Ancestry memorials !?!?! ... The plain fact that an obituary is an integral part of personal family history And that they were paid to print them should Completely relinquish their copyrights to all obituaries.
Obituaries are NOT copyrighted "works" -- the newspaper or magazine or book which contains the obituary is the copyrighted work. Posting a single obit for research or educational purposes is an example of the FAIR USE exemption to an exclusive copyright. You can NOT copy an entire work but you can copy a minuscule portion, like an obit, for research or educational use.
DeleteUnder the provisions of the Berne Convention, adopted by the United States in 1988, all works whether or not notice is give of a copyright claim, are automatically covered by copyright. Yes, obituaries are copyright protected and depending on the agreement between the creator or author of the obituary, the copyright would be held either by the author or the publisher. The statement made by Anonymous is only partially correct in that there is a claim for fair use. If you search online for obituaries and copyright, you are likely to see this article as the results.
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