Who Owns the Copyrights on Obituaries?

According to the Times-Tribune, a newspaper in Scranton, Pennsylvania, the newspaper owns the copyrights on all obituaries that they write. I'm no lawyer, but I think that newspaper has a strong case.

It seems that the Times-Tribune sued the Wilkes-Barre Publishing Co. and The Times Leader on Wednesday, claiming the Wilkes-Barre paper plagiarized more than 50 obituaries written and published in The Times-Tribune starting in late October. The suit, filed in Lackawanna County Court, lists seven claims, including misappropriation, unfair competition, fraud, breach of contract and unjust enrichment.

The Times-Tribune is asking a judge to award damages in excess of $210,000 for lost profits, lost customers, loss of good will and damage to existing business relationships. The suit also asks that The Times Leader be barred from copying Times-Tribune obituaries or any other content from its newspapers or Web site.

You can read more about this interesting lawsuit at http://tinyurl.com/eogn2.

My thanks to Hank Loftus for letting me know about this lawsuit.

Comments

[Cedric]

Ouch.
Does that mean I have to obtain permission from a newspaper when I quote a death notice or obituary in my family database, if I am going to give other family members a copy of my database?
I routinely remove living people from my database prior to giving out copies, but this raises another issue.

I am interested in Australian law, but there are a lot of similarities between jurisdictions, so would also be interested in US &/or Canadian law, especially if I copy something from a Nth American paper relating to a family member who lived & died there.

[Israel Pickholtz]

If I am not mistaken, in the old days, local papers with an obituary that referred to another city (the deceased lived there previously or family members lived there at the time), would add at the end of the obituary "[city name] papers, please copy."

I always assumed that this was a courtesy, not for compensation.

[Mo]

That's surprising, I thought the family or whomever actually wrote the obit and just submitted it for publication, like an ad. I didn't realize the newspaper wrote them. While they've been invaluable in my research, I'd personally rather not have anyone write about me when they've never even met me. Wierd. That's like having a total stranger write a personal ad for you with you telling them what to say.

[Douglas]

It did used to be a courtesy, when times were different and morals better. Manners ruled the day - but they are disappearing daily and profit becomes the rule.

[Ifor Jackson]

I think it depends what kind of obituary we are talking about. Those in local papers are, at least in Britain, often written by family or friends. Those written by a 'stringer' or staff member are clearly the copyright of the paper.

National papers, writing on a public figure, are very clearly part of the newspaper and under copyright.

I am sure that in all cases a courtesy email or memo would readily give permission for family history use.

[Gail]

In our area, the funeral home writes the obituary from information that the family gives, and the family has to pay the paper for publishing it. The paper shouldn't own the copyrights on obituaries that we paid for!
I have a lot of newspaper clippings that my parents kept and I have no idea which paper they came from. Unfortunately they didn't write the date or the newspaper on them. Should I not be able to use them for information?

[jacqui]

Some newspaper obituaries will be out of copyright anyway due to the time limits which are probably different for each country. It is a difficult area but I would have thought that as long as you acknowledge the source there shouldn't be any problem and where the source is unknown if they contact you to say it is theirs then you have gained another bit of information and they might be able to give you even more.

Realistically for the average family historian is this really a problem?

[robinkaspar]

This is very timely for me. I host a USGenWeb county site and have for many years. Early on, I elected not to post full-text obituaries for anyone who died within the past 75 years. I really didn't think it would happen, but I didn't want to be a legal test case. I maintain an index of current obits and provide a link to the submitter so that copies of the obit can be exchanged privately. But in conversations with fellow county coordinators in my state, the general feeling is that it isn't a problem and I was just about to relax my moratorium on them when this came up. Still, my chances of being sued by a paper are probably pretty slim, but I suppose I should err on the side of caution.

Oh, and when my mother-in-law died in Los Angeles a few years ago, I wrote her obituary and the family paid the $400 to publish it. I would argue that I/we hold the copyright to at least the content.

[Chris]

I also host a USGenWeb site with obits. The difference here seems to be that another newspaper was using the obits. So, they can claim they were being hurt financially.
I don't think they are so interested in lowly genealogy sites where people contribute their family obits.
Chris

[Linda Johnston]

For years, I have collected the obits from our local newspaper. At the end of each year, I type them and put them in our local library's genealogy section. I provide a hard copy, in top-loading plastic sleeves and a big D-ring binder. In addition, now that they have computers at the library, I also provide a CD of the same data. After listing the deceased person's name, I always put the name of the newspaper and the date that the obit appeared.

Before I ever started this project, I contacted the owner of the newspaper and got his permission to do this. I wanted to avoid any problems with copyright laws. I've never had a problem, since I began. I make no money from the project. In fact, it costs me for the plastic sleeves, notebooks, paper, ink, and CDs. I do it as a way to "pay back" for all the others, in the area, who've contributed to the ever-expanding resources of our genealogy section at the library. Obits can be such rich sources of information for those, who may not have been "close" to the deceased.

[Ida]

I agree with Gail. My sister wrote my grand-mothers obit and we paid for it. If they would put their historical papers on-line for a fee they could make some money like many others do. Ida

[Gary Mokotoff]

The owner of the copyright would be the person who created the words, unless they released the right by contract. Also, it is entirely proper to index obituaries independent of who wons the copyright.

[Judy Newman]

An obituary, which is written by the newspaper, is different from a death notice, which is written by the family, and usually submitted by the funeral home. Death notices are paid for while obituaries are not.

I would think that adding an obituary to a family data base would come under fair use.

The fact of death is just that a fact and not copyrightable.

[geezer]

Dick,
Where'd you get the personalized tinyurl?

[Dick Eastman]

From http://www.tinyurl.com

It is one of the options they offer.

[Dick Eastman]

---> I have a lot of newspaper clippings that my parents kept and I have no idea which paper they came from. ... Should I not be able to use them for information?

You can always use information for your own personal use without worrying about copyrights. The copyright laws become an issue only when you republish information.

- Dick Eastman

[Barbara]

We have two very different situations here. A newspaper clearly holds copyright to anything published in their paper. For another paper to make a profit by plagarizing information is truly unjust. I doubt that most newspapers care whether genealogists archive or copy obituaries.
As a former freelance writer for a large daily Indiana newspaper, the stories and obits that I wrote were held under an agreement that the paper had firt time publisher rights while I retained the copyright. As a safety measure I recently requested and graciously received permission from the newspaper to archive and publish stories and photographs of historical interest.
In fact, the local genealogical society has been actively collecting and archiving obituaries for several years with the blessing of the newspaper.
Obviously preserving history and making a profit by plagarizing information are clearly two different issues. I really don't think genealogists need to worry. After all, a gracious line of communication between readers and societies result in enhanced advertising for the newspaper-and, in fact, helps them to archive their own material.

[Concetta]

Barbara,

The newspapers can and some do go after online archives of obituaries. It depends on how big they are, how current the obituary is, and how much of a loss is had. With so many newspapers selling access to their archives for $2.95 an article (or more), this can be a significant loss for them. I've seen instances of papers intentionally misspelling things so they can nab reprinters/republishers of their obituaries.

The new wrinkle is the online obit archives like Legacy.com and such. They can add a whole new level of complexity towards republishing obits.

Obviously, you can't copyright the facts, but most newspapers can and do hold copyrights. They may share those rights with the family that wrote the obit, but it is covered under the full newspaper copyright of anything printed in their pages.

Luckily, most newspapers with a quick letter or phone call attesting that the site they are being posted to or the group they are being collected by is non-profit in nature, most newspapers will gladly allow their information to be used. One contacted this week was actually glad someone was working on it since they dismantled their online archive.

I'm just as worried about people publishing full text obituaries younger than 75 years old, since they would be publishing names of living people. There could potentially be a new source of lawsuits there.

[Joy Rich]

The editor of the Times-Tribune has written this in "Readers Comments":

"Editor's note: Obits are, in fact, written by Times-Tribune personnel and are the creative property of the newspaper."

Who writes the obituaries can vary from one newspaper to the next, but in this instance, they are written by the newspaper's employees, so the newspaper holds the copyright.

For links to articles about copyright and genealogists, see the Association of Professional Genealogists' website at http://www.apgen.org/organization/policies/copyright.html .

[Tim]

Barbara said, " A newspaper clearly holds copyright to anything published in their paper." That's not necessarily true. Unless the paper has a clause stating that any submissions to the paper becomes the property of the paper, the copywrite remains with the writer. That wold be like saying that a publishing company owns the rights to every book they publish. They may have a contract to publish exclusively for a certain number of years, but the author owns the rights to the work. Most probably have such clauses now, but who reads the fine print in situations like that?

In this case the Times-Tribune wrote the obituaries, so they own the rights. Papers have their writers sign agreements that anything they write for the paper while under the paper's employ belongs to the paper. The charges and claims of loss from obituaries by the Times-Tribune seems questionable, though. Few paper-written obituaries that I have seen merit copywrite protection; adding a few words between names and dates to make them read like a real sentence doesn't require a lot of imagination, nor does it add anything creative to the work. Placing "was" between a name and a birth date does not a masterpiece make.

[Suzanne B. Huffer]

In our area of Arizona, obituaries (except perhaps for the famous) are written, submitted and paid for by the inch by someone related to the deceased.

[Jim McMillen]

If I have no connection with the newspaper, write an obituary, and the newspaper publishes it without getting my permission, can I sue it for plagary?
Unless one has signed his rights away, anything he writes is automatically copyrighted in his name. Or she and her. The copyright symbol, etc, are probably required if a law suit is contemplated.

[Leonard McCown]

Over the past 20 years or so, I have personally written obituaries for close family members and submitted them to the newspaper. I would think my words and research belong to me and the family and NOT the newspaper. For the most part these were published as written with little or no change in the smaller town newspapers. ALSO, the information comes from the family unless the person is a celebrity, and then most of the newspapers are taking it from reference books.

[Alexa]

I think what the article is referring to are the obituaries written by newspaper staff about famous people or local persons of note, the ones that can run three and four columns long. It isn't referring to the little death notices submitted by the families through the funeral homes or directly to the newspaper which normally are little more than 2-3 inches long. The obituaries are those long, newsy columns written for FREE by someone on the newspaper staff or a hired freelance writer. A death notice is what the family members submit to the newspaper and pay through the teeth for nowadays.

So the long newsy obit written by newspaper staff is free and copyrighted by the newspaper. The little death notices submitted by family of the deceased are paid for by the family and should be copyrighted to the family. These little death notices are commonly mistakenly referred to as "obituaries", that's why there is some confusion.

[Kris]

It would appear from the article that the newspaper isn't suing over obituaries that their staff actually wrote -- as in the case of a public figure -- but rather obituaries that the paper simply published. And this is an important distinction.

"Staffers at The Times-Tribune spoke to funeral directors involved with the 50-plus obituaries in question. The directors indicated they did not send any obituary information to The Times Leader and did not request that the obituaries be published in that paper, according to the lawsuit."

Most obits are written by the funeral directors or the family members and published in the newspaper because the column space has been paid for by the family. This does *not* transfer the copyright to the publishing newspaper and *every* newspaper I have contacted about copyright issues with regards to obituaries has confirmed this. Every single one. Without exception they have told me that the family holds the copyright to those obits. (Some of them also mentioned that the reason they exclude poetry and the like from published obituaries is due to potential copyright issues and the difficulty in confirming whether the verse is, indeed, an original work -- so they just don't allow it at all.)

I have an aunt whose obituary appeared as an article which was written by a staff member of the newspaper, as evidenced by the by-line, and the copyright to that article *is* held by the newspaper. But this is because a staff member wrote it, not because the newspaper published it.

[barb]

Strange since we actually wrote mom's obituary in the funeral home and PAID the paper to publish it. Since we paid for it, isn't it in effect an advertisement/notice?

[Fred Stuart]

In Portland, Maine the Portland Press Herald charges a hefty amount to publish an obituary written by the funeral home or family member. They can only be submitted via a funeral home and they get a cut of the cost. I wrote my mother's and father's obituaries and I am the copyright holder as they are my original works. The paper only published my works. Death notices are free and are a public service for the newspaper. Some obituaries that are done by the paper without charging the family are copyrighted by the newspaper.

[GMF]

Our society has become too litigious. Maybe with the Recession some of it will die a natural death. OTOH maybe some will see it as a means of a fast buck.

Obits should be widely available and with no strings attached.

[James W. Crippen]

Let me toss this one out for comments. The Michigan State Library holds nine 16mm rolls of Crippen family history compiled by cousin Katherine Crippen Warner. I requested loan of the nine rolls to transfer to a CD using a local firm often employed by the library. The library pleaded that they could not comply with my request due in part to the obits being published in local Michigan newspapers. They now owned the materials, hence the copyrights. After careful review we discovered that of the seven obits included in the files, all had been published in long since defunct newspapers. According to your logic between the two Pennsylvania papers, one was technically stealing copyrighted materials. I agree this would stimulate an interesting legal discourse. However, I have great difficulty in believing that copyrights are the property of libraries when they store obituaries published in local newspapers. The Michigan State Library defense team, and others, in my opinion, are no different than the Pennsylvania newspaper caught stealing. They do not own, can not administer, copyright protections on items that they did not actually publish. How then can a major State library assume an ownership position in obituary publications. The question digests down to ownership of family history data. Can a library assume an ownership position on family history and refuse to allow review, due to some latent copyright?

[W David]

I secured permissions from two newspapers for one of my USGenWeb Project county sites before I started.

[Adele Just]

I wrote a lengthy and highly personal obituary for my former husband earlier this year that was very well-received by his large extended family, and published in a West Coast city newspaper. I believe the newspaper charged $400. Clearly mine! My son went online to a Midwestern newspaper and filled in the blank fields in the newspaper form, the only option available at this paper. More like a legal notice than an obituary as we know them or hope to find. What I found irksome, during a brief period when three people died with whom I had been closely connected, was the very short interval that the obituaries were available to read online before payment had to be paid for access. But I was a researcher long before genealogy became an industry--before photocopy machines in archives--and perhaps while newspapers still published obituaries to help sell their papers.

[Adele Just]

I wrote a lengthy and highly personal obituary for my former husband earlier this year that was very well-received by his large extended family, and published in a West Coast city newspaper. I believe the newspaper charged $400. Clearly mine! My son went online to a Midwestern newspaper and filled in the blank fields in the newspaper form, the only option available at this paper. More like a legal notice than an obituary as we know them or hope to find. What I found irksome, during a brief period when three people died with whom I had been closely connected, was the very short interval that the obituaries were available to read online before payment had to be paid for access. But I was a researcher long before genealogy became an industry--before photocopy machines in archives--and perhaps while newspapers still published obituaries to help sell their papers.

[RICHARD A DOHERTY]

the ad belongs to who ever paid for it.the newspaper sold the ad or obituary.to the buyer.

[Katherine]

Having recently paid over $100 each to have obituaries for two family members printed in the local papers (I wrote them myself)I had darn well better own the copyrights! And I freely give anyone who wishes permission to use them.

[Gerald Eberwein]

Copyright infringement rarely includes partial quotes of a printed document so long as the source is either named in the text or footnotes (not an advertisment for Dick's other love) as part of the document where the quote is used. If it were then every reporter and college student that writes an article or paper would be in deep trouble.

Having said that, may I suggest that rather than using the full text or the obituary we use only those parts that substantiate the facts we are proving.

It is not an infringement to make an electronic copy of any document we pay for from a newspaper or subscription service as a reference to substantiate any claim made related to families. And, the infringement occurs when that copy is offered for sale as a commercial venture. Not when I give it to Aunt Httie who is also researching the same family.

Dick it was great to meet you at the Mesa Conference. The conference was very useful for me and I came away with more ideas than I can hardly remember.

[Sandra Logan]

I believe that if a newspaper charges a fee to run an obituary, then anyone should be free to copy it.