Copyright and the obit

A society’s transcriptions raise questions

Reader Steve Dahlstrom was surprised when he ran across a website run by a local historical society that had transcriptions of a large number of obituaries from a local newspaper. The dates on the obituaries ranged, but many of them had been published well into the 1950s and so, he thought, would be covered by copyright. “My understanding of copyright would not allow websites … to transcribe and republish these obituaries without permission from the newspaper, when the original was published after 1922,” he says. And, if the newspaper did give permission, “should the webpage note this fact?”

Ah, yes. That oh-so-common, oh-so-murky question of whether newspaper obituaries are covered by copyright and when, where and how they can be used. Just about every question connected with obituaries and copyright law has to be answered with that most wonderful of The Legal Genealogist‘s answers. You know the one I mean. The one that has us all tearing our hair out.

It depends.

Oh, the “should the website say it has permission” part is easy. Sure it should. It always makes things easier. But the one Steve came across didn’t say whether it has permission. So now what?

Let’s start by going over some copyright basics.

First, anything that was published in the United States before 1923 is now in the public domain.1 That means there is no copyright restriction on it of any kind and you are free to use it in any way you’d like.2

So as far as any obituary published before 1923, it’s fair game and nobody has to be concerned about it at all.

Second, if something was published between 1923 and 1963 with a copyright notice — and most newspapers did include some kind of copyright statement somewhere in their pages — that copyright ended 28 years after publication unless the newspaper renewed the copyright by filing a registration with the U.S. Copyright Office and paying an additional fee.3 It may not be the easiest thing in the world to check to see whether a newspaper renewed its copyright — the records exist in an enormous card catalog in the U.S. Copyright Office at the Library of Congress — but my bet is that the vast majority of American newspapers didn’t bother renewing their copyrights on their archival editions.4

So assuming that the newspaper whose obituaries were transcribed by this local history group didn’t bother renewing its copyrights day by day after their initial term, any obituary published between 1923 and 1963 became public domain — fair game — 28 years later. An obituary published in 1950, for example, went into the public domain in 1978; an obituary published in 1960 went into the public domain in 1988.

Third, the fact that the obituary ran in the pages of a newspaper that was copyrighted doesn’t mean the obituary itself was covered by copyright — or, at least, not by the newspaper copyright. Remember that facts by themselves can’t be copyrighted.5 There has to be some spark of creativity for copyright protection.

So a newspaper that used a fill-in-the-blanks form and printed nothing but facts might very well not be able to claim copyright in the obituary at all.

Fourth, just because the newspaper published the obituary doesn’t mean the newspaper owns the copyright. Here again remember that whoever actually contributed that creative spark, that original expression, is the author and it’s the author who owns the copyright unless the author signs a written agreement giving the copyright to somebody else.6

The obituary used here as an illustration happens to be my own grandmother’s obituary. It was published in 1995. But the newspaper that published it doesn’t own the copyright. It didn’t write one word of that obit. It was written by the family. I can even tell you specifically who in the family wrote the sentence about where my grandmother was born (because there has only ever been one cousin who kept insisting that my grandmother was born in Sugarland, even though my grandmother said she was born in Eagle Lake). And those of us who did contribute to writing it never signed an agreement to give the copyright to the newspaper.

This is a pretty typical example. Most obituaries aren’t written by newspaper staff — they’re written by the family or by the funeral home with information from the family. There are exceptions, of course — and you should be especially wary of using anything that ran with a by-line, that little section under the headline that identifies the writer.

So maybe the local historical society would need to ask us for permission to transcribe the obit and put it on a website. But it wouldn’t need to ask the newspaper.

And if those aren’t enough “maybes” for you, let’s throw in one more big one. It’s called the fair use doctrine, and it’s set out in federal law at 17 U.S.C. § 107:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means …, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.7

Even if something is copyrighted, you can still use some part of it if your use qualifies as a fair use. How does this use stack up against the statutory test?

• Transcribing old newspaper obits for a historical society to give away sure looks like a nonprofit educational purpose.
• The obit itself is mostly factual, so the nature of the work is given less protection.
• All of the obits ever published by one paper probably aren’t very much of the contents of the newspaper as a whole.
• And unless the newspaper is selling transcriptions, there’s not much effect on the market for the obit, is there?

So the transcription could very well be a fair use even if the newspaper does have a valid copyright. (By the way, I suspect most uses of single non-bylined obits of your own family members in things like blog posts would be considered fair use as well. Just sayin’ …)

And so, after all that, the answer to the question of whether the local historical society was violating the newspaper’s copyright is — brace yourself, you know it’s coming — it depends.

And we haven’t even considered whether the particular newspaper involved would think that having its name attached to every one of those transcriptions was a form of free advertising for its current editions … or that suing a local historical society over 50-year-old obituaries would be bad for business…


SOURCES

  1. See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 11 Sep 2012).
  2. See generally “Where is the public domain?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 11 Sep 2012).
  3. U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at p. 2 (http://www.copyright.gov : accessed 11 Sep 2012).
  4. Do NOT take my word for it if you decide you’re going to go off and publish huge numbers of copies of pre-1963 newspapers. This isn’t legal advice and I won’t defend you. See
    Judy G. Russell, “Rules of my road,” The Legal Genealogist, posted 18 Feb 2012 (http://www.legalgenealogist.com/blog : accessed 11 Sep 2012). Make sure you check that card catalog!
  5. See “What Does Copyright Protect?,” Frequently Asked Questions, U.S. Copyright Office (http://www.copyright.gov : accessed 11 Sep 2012) (“Copyright does not protect facts, … although it may protect the way these things are expressed”).
  6. See “Who is an author?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 11 Sep 2012).
  7. “Limitations on exclusive rights: Fair use,” 17 U.S.C. § 107.
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17 Responses to Copyright and the obit

  1. Thank you so much for addressing this topic. I’ve downed a fair amount of Rolaids recently trying to understand copyright as it applies to blogging so that I can stay on the right side of the law. I love your blog and I always learn so much .

  2. Judy, as I understand it, it would be all right for someone to transcribe their ancestor’s obit from the actual printed newspaper (provided it meets the criteria above), but it’s not all right to transcribe the exact same obit using a PDF version found online(GenealogyBank, NewspaperArchives, Chicago Tribune Historical Newspapers)? Or is there a legal distinction between transcribing the information and publishing or posting that transcription?

    • Judy G. Russell says:

      Linda, there’s no question that you can transcribe the obit from the actual printed newspaper and, most likely, ANY transcription of the obit would qualify as what’s called a transformative use — a concept that’s part of the overall fair use test applied by the courts, because of the combination of the change in the format and the change in the use. (Caveat: I wouldn’t re-post or publish a transcription of every word of a by-lined, copyrighted obit without getting permission.)

      The question as to where the obit came from is governed not by copyright law but by contract law. What do the terms of use of the particular website say? GenealogyBank‘s parent company NewsBank has said that text transcriptions are permitted under its terms of use; we’d have to carefully examine the terms of use of the other websites to see what they say.

      And yes, there is almost always a difference between your own personal transcription, for your own personal use in, say, your genealogy database, and publishing or posting the information. Just about every website says in its terms of use that you can download and store snippets for your own personal research. It’s the re-posting or publication where the restrictions come in, and it’s important to read the terms of use or terms of service to see what’s allowed and where you’ll need to ask permission.

      • Concetta says:

        >>And yes, there is almost always a difference between your own personal transcription, for your own personal use in, say, your genealogy database, and publishing or posting the information.

        Judy, this is where I have most of my confusion on. If I post a personal photo of a newspaper obituary, for example, in my FTM its one thing. But what happens when we use a cloud genealogy program such as Ancestry Member Tree? Doesn’t that change things because more than one person can see it (although I do have my tree private on there, there’s roughly 40 researchers working on it).

        • Judy G. Russell says:

          For copyright purposes, yes, Concetta, putting it out in public does make a difference because it’s the reposting, republication or copying that’s the issue under the law. And making it available to 40 people might well be enough to constitute publication. So if it is copyrighted, the absolute safest course is to ask for permission. It’s a rare case where permission isn’t given.

  3. JD says:

    “Most obituaries aren’t written by newspaper staff”
    That’s the convention TODAY. In times past, obituaries were typically written by the funeral home or by the newspaper, based on facts provided by the family.

    “Transcribing old newspaper obits for a historical society to give away sure looks like a nonprofit educational purpose.”
    That’s a stretch, and you know it. Publishing old obituaries on the Web may be informational, but it’s hardly instructional or pedagogic.

    “we haven’t even considered whether … suing a local historical society over 50-year-old obituaries would be bad for business”
    Are you implying that it’s OK because you won’t get caught?

    • Judy G. Russell says:

      (a) That’s why the answer is “it depends.”

      (b) Fair enough — you can add in the scholarship and research purposes if educational alone doesn’t float your boat.

      (c) No. I’m implying that the risk in the inevitable risk-benefit anaylsis of relying on fair use may be minimal at most.

  4. Great post, great topic!

  5. Hi.
    I manage the Facebook page and am assistant editor of our state’s newsletter, The Carolina Herald, as well as the Old PEndleton District Chapter Newsletter. I would like to reproduce your post/article “Copyright and the Obit” in its entirity in our printed newsletters. May I do so with full credit being given to you and your site?

    Thank you for your consideration.

    Lesley Craddock

  6. Jeff says:

    Btw, did that cousin and your grandmother ever get in an “argument” on where your grandmother was born? I can almost see the “fight” now!

    • Judy G. Russell says:

      Nope, the cousin took her position about where our grandmother was born after our grandmother’s death! Trust me on one thing, when it came to any issue, my grandmother won.

  7. BGH says:

    Can you explain to me how several websites manage to sell subscriptions to obituaries? This is mind boggling to me. Seems to me if an obituary is basic public knowledge about a deceased person then there should be no question about it, it is reusable for what ever purpose you want. Provided there is no by line author.

    One such site charges $35 a month and advertises they have over 50,000 obituaries from my home state. I stopped and thought about that for a moment, heck, there’s more than 50,000 in books in the public library’s genealogy room and they were collected by the historical society and they state plainly inside the fron cover who to contact for a copy and how much that copy cost.

    I think it would be absolutely awesome to have a website with all the obituaries ever published in any newspapers from all across the USA on it. That would take a tremendous amount of work on someone’s part and they should receive payment for their work. Collecting anything off old microfilm or even current news papers is time consuming. Plus the transcription efforts and then uploads to a website. No one wants to work for nothing.

    Even historical societies make books of obituaries every few years and they sell them for a profit and the money is used for the historical society’s benefit. I haven’t seen an obituary book under $35.00

    Even cemeteries are now collecting pictures and obituaries and making books to sell for profit to help with the up keep on cemeteries.

    I realize it’s just an obituary, not rocket science or brain surgery, and I also realize that same obituary is also an historical document. One I feel should be more easily accessible than it is today. But OMG what an undertaking it would be!!!!

    Let me know your thoughts,
    BGH

    • Judy G. Russell says:

      It’s simple: as you say, “what an undertaking it would be!!!!” And because somebody has undertaken part of it at that somebody’s cost, they’re allowed to charge for your access to their efforts.Otherwise, you’d have to spend many times as much going to the location where the obituary was published, finding the newspaper in hard copy or on microfilm, and making your own copies. It’s no different from Ancestry charging for access to the census records, which are public federal records. You don’t HAVE to subscribe to Ancestry — you can go to the National Archives nearest to you and use the microfilm there. We’re paying for convenience.

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