Find A Grave revisited

Updated terms of use

In June of last year, all that could be said about terms of use at the popular website Find A Grave was…

FAG.TOSThere weren’t any.1

What a difference a year makes.

Because Find A Grave certainly has terms of use now, and they’re causing one reader to scratch her head.

Terms of use, you may recall, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.”2

And in the case of Find A Grave, it’s the terms of use that govern first and foremost what the general web-using public can do with all the content — the words and photos and more — that Find A Grave members upload to the site and, just as importantly, what rights Find A Grave has to that content.

Updated as of 17 June 2013, Find A Grave‘s terms of use say this about the use of its site:

The Website contains graphics, information, data, user generated information, editorial and other content accessible by users (the ‘Content’) and all Content is owned, licensed to and/or copyrighted by Find A Grave and may be used only in accordance with this limited use license. The Website is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. You may access the Website, use the graphics, information, data, editorial and other Content only for personal use, professional family history research or scholarly historical research. Republication or resale of any of the Content or other protected data is prohibited. Bots, crawlers, spiders, data miners, scraping and any other automatic access tool are expressly prohibited.3

And that language is giving reader Debbie Dale pause: “Can you explain their idea of ‘Content?’,” she asks. “Does that include information found on a digital photograph of a headstone? Am I wrong in thinking that only the photograph is protected by copyright and not the birth/death info I transcribed from the headstone — which I had hoped to use in a blog post.”

Let’s start with the really easy part of the question: is there a copyright issue in using birth/death information appearing on the site? No. The purely factual information contained on Find A Grave — the names of the deceased, their dates of birth and death, the places of the burial — are not and cannot be copyright protected. The law couldn’t be clearer that point: only original works with some degree of creativity can be copyrighted.4 “Copyright does not protect facts, … although it may protect the way these … are expressed.”5

Find A Grave doesn’t even try to claim that it has a copyright on purely factual information or on content (like photographs or text) it receives from its members: “No copyright is claimed on non-original or licensed material.”6

What it does claim is what’s called a compilation copyright — a copyright on the site as a whole, the way it looks, the way it works, the underlying code that makes it all come together. In a case like this, the copyright covers “only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any … material, … owned by a third party.”7

So the law isn’t any bar to using the factual information Debbie wants to use.

But what about that limited use license that says “(r)epublication … of any of the Content … is prohibited”?

Sigh…

Here’s where The Legal Genealogist really really really wishes people who write terms of use would stop and think for a minute before they write them.

Because — no matter what the exact words are — there’s no way that Find A Grave really means that a user like Debbie can’t use the purely factual information on the site, giving — of course! — proper credit to the site as the source.

Let’s be serious here. If all we could do was oooh and aaah while reading or looking at what’s on that website, and not use it in our research, write it up, publish it, share it with others, none of us would be taking photos and uploading them and other info to Find A Grave. Reading that language that restrictively is inconsistent with the whole purpose of the website, and Find A Grave itself says that “(f)or User Provided Content, Find A Grave is merely hosting and providing access.”8

Its terms of use for content that users upload explain that:

By submitting User Provided Content to Find A Grave, you grant Find A Grave a transferable license to use, host, sublicense and distribute your submission to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered. Except for the rights granted in this Agreement, Find A Grave acquires no title or ownership rights in or to any content you submit and nothing in this Agreement conveys any ownership rights in the content you submit to us.9

And, it says,

Once you upload content to the Website, it may become accessible by all persons accessing the Website. Other Website users may be able to copy, download, store, edit, change or delete certain content that you post. You may delete content that you previously posted on the Website; however, if others have downloaded or otherwise stored copies of the content, it may still be publicly viewable.10

So my take on this is simple: the “no republication” part has to be read together with the sentence that follows it — “Bots, crawlers, spiders, data miners, scraping and any other automatic access tool are expressly prohibited.” What Find A Grave considers a violation of its terms of use is grabbing all, or even a big chunk, of the content.

Using specific factual information for a blog post, by contrast, is exactly why Find A Grave exists — to make information about our families more accessible and more useful. Not to lock it away.


SOURCES

  1. Judy G. Russell, “Grave terms of use,” The Legal Genealogist, posted 20 Jun 2012 (http://www.legalgenealogist.com/blog : accessed 15 Sep 2013).
  2. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 15 Sep 2013).
  3. Find A Grave Terms of Use,” Findagrave.com (http://www.findagrave.com : accessed 15 Sep 2013).
  4. See 17 U.S.C. §102 (“Copyright protection subsists… in original works of authorship”).
  5. Copyright in General: What does copyright protect?,” U.S. Copyright Office, Frequently Asked Questions (http://www.copyright.gov/help/faq : accessed 15 Sep 2013).
  6. Copyright,” Findagrave.com (http://www.findagrave.com : accessed 15 Sep 2013).
  7. U.S. Copyright Office, Copyright Registration for Derivative Works, circular 14 (http://www.copyright.gov : accessed 15 Sep 2013), at 2.
  8. Find A Grave Terms of Use,” Findagrave.com (http://www.findagrave.com : accessed 15 Sep 2013).
  9. Ibid.
  10. Ibid.
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34 Responses to Find A Grave revisited

  1. Michele Lewis says:

    I am still a little confused, Judy. If I upload a photograph I am agreeing to transfer my copyright of the photograph to Find A Grave? If I want to copy a photograph I now have to ask permission from Find A Grave instead of the photographer? I am not liking that at all if that is the case.

    You quoted, “Other Website users may be able to copy, download, store, edit, change or delete certain content that you post.” Would these “other websites” be violating copyright if they are taking my photographs without my permission (assuming the answer to my first question is that I actually do retain copyright).

    I have 682 photos on Find A Grave so I would like to know if I need to be worried about their new terms of use.

    • Judy G. Russell says:

      (a) No, you are not transferring your copyright to Find A Grave. You are licensing Find A Grave to display your images. Its own terms of use say: “No copyright is claimed on non-original or licensed material.”

      (b) The quoted sentence speaks of other Website users, not other websites. In other words, they’re talking about Find A Grave users being able to copy, download, store, etc., info from Find A Grave.

      (c) Yes, absolutely, anyone who republishes an image you took and uploaded to Find A Grave without your permission is violating your copyright (unless the specific use can be considered fair use, and use of 100% of an item is rarely if ever fair use).

      • Robert says:

        Judy,

        Someone on Ancestry.com’s Facebook group is trying to say that headstone photos posted to Findagrave and other graving websites don’t qualify under U.S. copyright law because they don’t meet the definition of “creative” to be considered. What have courts said on the matter? I was under the impression photos were generally considered copyright protected except in cases of where someone was photographing a copyrighted item and a few other exceptions. Here’s his exact wording.

        “Copyright exists only when there is some evidence of creativity.”

        • Judy G. Russell says:

          The poster is correct that “Copyright exists only when there is some evidence of creativity.” Creativity in photography is usually found by the choices that the photographer makes. If the single choice is “point and shoot,” then copyright may be difficult to assert. More commonly, the choices are angle, lighting, sometimes use of filters and more, and in those cases the requisite “spark” the courts look for is likely to be found.

          • Robert says:

            Thank you Judy. In many cases, Findagrave photos were taken as “point and shoot”. Some are obviously taken in the spirit of creativity. I find many fall in between where I cannot tell if the person did “point and shoot” or not.

            I don’t mind if people use my photos. I find a lot of people do mind so thought I should ask an expert. I always ask if the person has not left a note in their bio or in the photo notes.

  2. Michele Lewis says:

    Thanks for the quick reply. That made it much clearer to me.

  3. Patricia Taylor says:

    When I post a photograph of a tombstone I do so because I want to share it with researchers who may be interested in that person and are not able to travel to the cemetery themselves. Also, I want to preserve the image of the individual’s tombstone so that they will be remembered. Getting credit is not why I do it.

    • Judy G. Russell says:

      Those are my reasons as well, Patricia. But giving credit to the photographer is one very good way to say “thank you” to all those volunteers who go out, selflessly, on their own time and on their own nickel, and slog through the mud and the briars and the snakes. Putting all the copyright issues aside for a minute, it’s just plain the right thing to do to acknowledge their efforts and their contribution to the community.

      • Cathy Gowdy says:

        I am SO glad to hear you say that, Judy. I have been preaching this very thing for what seems like eons. I always say “Photo courtesy of (insert name) and Find-A-Grave” when I copy it for my tree. So my thanks to you for emphasizing the right thing to do.

    • Connie Fairchild says:

      I agree whole-heartedly. That’s why I do it as well, so that present and future family historians may see their relatives or friends memorials and photos. Not for profit – not for recognition.

      • Judy G. Russell says:

        Recognition is appropriate, though, Connie — it’s a kind of formal thanks to those like you who do go take the images.

  4. Deb Shell says:

    Many of the photographs I have personally taken and/or owned, and put on my Find-a-Grave Memorials, turn up on other websites and trees, in particular Ancestry. There have been instances were they were used incorrectly. Am I the owner of the copyright on these photographs, and can anything be done to stop people from posting photographs on other websites – or is “the cat out of bag” on this one?

    • Judy G. Russell says:

      If you have personally taken the photograph, then you own the copyright and you can insist that anyone else not use the image. Merely owning a photo may not make you the copyright holder.

    • Jackie says:

      You can file a DMCA take-down notice to the site or the hosting service regarding unauthorized republication of the photos for which you are the copyright holder (i.e. the photos you personally took). Most companies act very quickly on these by removing the photos in a matter of days. Ancestry takes longer…

  5. Harold McClendon says:

    Could you comment on the obituaries that are posted on some of the pages? I assume that the original poster should obtain the permission of the newspaper where it first appeared. Do I need to get permission to copy the information to my genealogy program? If so, from whom should I request permission? On another point, I am looking forward to meeting you on 9/21 when you speak at RELIC in Manassas, Virginia.

  6. Ann Lamb says:

    I have seen many pages from Findagrave post on Ancestry. Because these show the whole format of the page, picture, structure of the information, I have assumed that that would not be legal, however saving an image or information to your computer and computer and then adding it to you Ancestry page would be. Is that correct?

    • Judy G. Russell says:

      There appears to be a sharing agreement of some kind between Ancestry and Find A Grave in effect there, Ann. There’s certainly some sort of linking system since you can click on a Find A Grave image at Ancestry and it will take you to Find A Grave. No matter how you share an image, however, you must have legal authority to use it on Ancestry — so always get permission of the copyright holder.

      • Jackie says:

        Judy, are you seeing something on Ancestry that I’m not? I do not see “a Find A Grave image at Ancestry” only an *listing from an index*, which links to the Find A Grave memorial. Any Find A Grave image I have seen *on* Ancestry was added by users, not Ancestry.

  7. Jan says:

    Okay, does this mean that I can not make a copy of the Find a Grave Memorial and add it to my FTM program no mater is I added the memorial or someone else did?

    • Judy G. Russell says:

      No. The terms of use say clearly: “You may access the Website, use the graphics, information, data, editorial and other Content only for personal use, professional family history research or scholarly historical research.” (Emphasis added.) So what you propose to do for your own personal research is fine. The only issue would come up if you were going to publish something and were going to include it in what you published. Then you would need permission for anything you didn’t write.

  8. Kip says:

    I think the purpose of it is to protect themselves from those who would just crawl their website, steal all their data, and then use it to make their own competitive grave website. That’s my guess.

  9. Pingback: Friday Finds – 09/20/13

  10. Danny Brown says:

    I’m still not clear on one thing. At Find-A-Grave I might find HUNDREDS of pictures I’d like to use when I publish my own genealogy. Do I have have to get in touch with every photographer on every site to get their permission – Or can I just copy the picture and give them credit in my own genealogy? Can’t I just say “This picture of Great- Grampaw’s Tombstone was found on the “Find-A-Grave Website”?

    • Judy G. Russell says:

      Where you find the photographs makes NO difference in your right — or lack of any right — to re-use them. Find them one by one on hundreds of individual sites or find 100s all together aggregated on Find-A-Grave, the copyright of each photo still belongs to each individual photographer and, if the photographer’s info doesn’t give permission to re-use the image, then you need each photographer’s permission. You may not copy and republish (such as on your own website) the work of someone else without violating copyright. That’s different from, and in addition to, needing to give credit (“photo by…”).

  11. Jane Smith says:

    Oh my word, would you all get a life. I can’t believe this conversation. If you are so possessive about your pictures, then DON’T post them.

    • Judy G. Russell says:

      The web would be a mighty bleak and barren landscape if everyone who owned copyrighted content followed your advice and kept it to themselves. How about just being a good neighbor and asking permission before using someone else’s work?

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