The terms of use control
The announcement this week that the popular website Find A Grave has been sold to Ancestry.com has prompted an outpouring of response from the genealogical community.
On one side are the contributors, such as a reader who wrote: “I am a top contributor to FAG and am very disturbed by this as I am not nor will I ever be a fan of Ancestry. I believe firmly that genealogy resources should be always available free to anyone that purses their interest in genealogy and family history. This certainly changes my feelings and am not sure as of this time what my future will be with FAG.”1
On other side are the pragmatists, who remind us that few of the contributors “considered who even owned or operated the website. Did any of those volunteers think of how the website was being financed? Who was paying for the computer space? Who was doing the programming? Who maintained the site and upgraded the hardware as the site grew in an astonishing way?”2
Realistically, there isn’t any way to resolve the fundamental differences between these two viewpoints. People who create and contribute resources as a labor of love without compensation surely have a right to control their contributions and what’s done with them… but somebody has to pay the bills if information is going to be made available online.
So the question The Legal Genealogist today reviews is a small subset of the bigger issue. The question here is: what are the contributors’ rights now?
First and foremost, they’re governed by the terms of use of the website. Terms of use, remember, 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.”3
And in the case of Find A Grave, it’s these terms of use that govern not just 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 but, more importantly for today’s question, what rights Find A Grave has to that content.
As of today (and since 17 June 2013), the relevant Find A Grave terms read:
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.4
So each and every contributor under the terms of use has to agree to let Find A Grave use and show and distribute anything uploaded to the site. It’s a license — your agreement to let the site use your materials.
And the terms of use make it clear that it’s a “transferable license.” Transferable. In other words, yes, absolutely, under the terms of use, Find A Grave is entirely within its rights to take the entire site, or in fact any part of it, and sell it (transfer it) to somebody else. Like, oh, Ancestry.com.
But that provision has to be read with the Frequently Asked Questions:
(Q.) I don’t want to submit my information and then see it for sale here or on another site. Will Find A Grave always remain a free site?
(A.) Find A Grave has been around for over fifteen years. Our stated goal has always been to remain a free site for everyone. We have no plans on changing that. Additionally, we claim no copyright or ‘ownership’ of any photos that are posted to Find A Grave. They remain your property. If we were to turn evil and start charging people to view YOUR photos against your wishes, you would have every legal right to demand that we remove them. But we’re not planning on turning evil, so it shouldn’t be an issue.5
That language — with only one word’s worth of difference — has been on the site for years. In 2008, for example, that particular item read:
(Q.) I don’t want to submit my information and then see it for sale here or on another site. Will Find A Grave always remain a free site?
(A.) Find A Grave has been around for over ten years. Our stated goal has always been to remain a free site for everyone. We have no plans on changing that. Additionally, we claim no copyright or ‘ownership’ of any photos that are posted to Find A Grave. They remain your property. If we were to turn evil and start charging people to view YOUR photos against your wishes, you would have every legal right to demand that we remove them. But we’re not planning on turning evil, so it shouldn’t be an issue.6
So… has anything changed in terms of contributors’ rights with the sale of Find A Grave to Ancestry.com?
No.
The deal as announced includes this statement by Ancestry CEO Tim Sullivan:
We will maintain Find A Grave as a free website, will retain its existing policies and mode of operation, and look forward to working with Jim Tipton and the entire Find A Grave team to accelerate the development of tools designed to make it even easier for the Find A Grave community to fulfill its original mission to capture every tombstone on Earth.7
Two key promises there:
• Ancestry “will maintain Find A Grave as a free website;”
• Ancestry “will retain its existing policies.”
Find A Grave‘s founder Jim Tipton said the same thing:
What will change at Find A Grave?
• The short answer is: nothing. The site will remain free and continue to operate as it has for the last eighteen years. …
Will the site remain free?
• Yes. Find A Grave will continue to remain a free site.
Will Ancestry require you to register or pay to view content on Find A Grave?
• No.
Will contributors still retain copyright ‘ownership’ of their photos?
• Find A Grave plans to continue its focus on honoring user’s privacy and protecting their user generated content. As always, any photos you add to Find A Grave will remain yours and neither Find A Grave nor Ancestry.com will own them.
• The current copyright policies of Find A Grave will remain in place. Contributors will retain copyright over any photos added to Find A Grave. It will still be wrong for someone to ‘steal’ a photo from Find A Grave and post it other websites as if it were their own.
Will Find A Grave submissions still show up on other websites?
• The current copyright policies of Find A Grave will remain in place. Contributors will retain copyright over any photos added to Find A Grave. It will still be wrong for someone to ‘steal’ a photo from Find A Grave and post it other websites as if it were their own.8
The bottom line here is that there’s no reason for any Find A Grave contributor to do anything because of this sale. The site will remain free — answering the concerns of contributors like the reader who wrote in — and its bills will be paid, answering the concerns of the pragmatists.
And lest you think I don’t put my money where my mouth is, let me add this personal note as we all contemplate our options in the wake of this sale: I am personally a Find A Grave contributor. I was promised, as we all were when we contributed to the site, that it would remain free. And only if the site were “to turn evil and start charging people to view (OUR) photos against (our) wishes … would (we) have every legal right to demand that (they) remove them.”
Under this deal as announced, my contributions are staying on Find A Grave.
SOURCES
- (Name withheld for privacy), email to the author, 30 Sep 2013; privately held. ↩
- James Tanner, “I’ve a feeling we’re not in Kansas any more ,” Genealogy’s Star, posted 1 Oct 2013 (http://genealogysstar.blogspot.com/ : accessed 3 Oct 2013). ↩
- Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (https://www.legalgenealogist.com/blog : accessed 3 Oct 2013). ↩
- “Find A Grave Terms of Use,” Findagrave.com (http://www.findagrave.com : accessed 15 Sep 2013). ↩
- “Submitting Information / Creating Memorials,” FAQ 71, Frequently Asked Questions, Find A Grave (http://www.findagrave.com : accessed 3 Oct 2013). ↩
- Ibid.; as of 28 Aug 2008, via the Wayback Machine, Internet Archive (http://archive.org : accessed 3 Oct 2013). ↩
- “Ancestry.com LLC Acquires Find A Grave, Inc.,” Press Releases, posted 30 Sep 2013 Ancestry.com (http://corporate.ancestry.com/press/ : accessed 3 Oct 2013). ↩
- Jim Tipton, “Find A Grave/Ancestry FAQ,” Find A Grave (http://www.findagrave.com : accessed 3 Oct 2013). ↩
I have been a subscriber of ancestry.com for many years and joined findagrave over a year ago. I do find it very helpful to find the findagrave link listed on ancestry.com while doing research. (Some of which have been information that I posted to findagrave). If findagrave remains free as stated, Isn’t it good to have another link to help with our family search and therefore have the correct information listed on our websites. I have “met” many wonderful relative through the internet and especially recently through findagrave.
Those of us who subscribe to Ancestry are least likely to see this as a potential problem, Susan, but even those who don’t-won’t-can’t-afford-to subscribe have no cause for complaint unless the rules change. Then we can all join in complaining.
Mine are too, Judy, and I intend to keep adding more.
🙂
Judy,
Thank you for posting this. I had hoped you would.
Like Mr West and yourself, It’s busy-ness as usual.
Thank you,
Russ
🙂
Thank you for clarifying the legal terms.
Glad to help!
Deja vu … Rootsweb…and others. Just be careful where you click.
Rootsweb is still there … and still free.
I too am a frequent contributor to Find A Grave and plan to continue that activity. My efforts in linking the memorials I create represent many hours of pro bono research and the photo volunteering is a labor of love. For me, it is a way to giving back to the genealogy community. I think Find A Grave has always been a ‘for profit’ site. A free resource to users, it is funded through advertizing revenue and donations. Since it is to remain free and continue its existing policies, I expect those [not too] annoying ads to continue and I’m totally OK with that!
Timely, as always, Judy! Thanks!
Skip
Thanks for your thoughts, Skip!
Thank you, again, Judy. I’d really like to see you, or someone else we trust, discuss for those who don’t seem to understand how much it really does cost to maintain a site such as Find-A-Grave that we all love, so much, to have available, free to both the contributors and the users. I was involved in this in the early days, but not for years. The costs must be very high, these days. Perhaps this is an unreasonable request, but it seems this part of the discussion has been missing – but it is critical, and crucial, to understanding this and similar situations.
I’m not sure I have a handle on all the costs, Bill… but look at it this way: this one website has to support at least one full-time employee. How much is a good laborer’s hire — with salary and benefits — worth these days? Then you can start adding on those minor little details like hosting and the like!
And, based on the press release, there are multiple employees. That ‘hosting’ for site this size, as you suggest, is not ‘minor.’ 😉
Judy, what does this mean for people who “delete” their contributions? Can FindAGrave restore them from a backup, for instance? Contributors did give FindAGrave a license to use and distribute, so does that mean a perpetual license? Thanks
The language does not (yet) provide that a contributor grants an irrevocable license. So once the contributor deletes it, that should be it. I can imagine cases where Find A Grave does a restore thinking that the deletion was in error, but under its terms of use the license is not irrevocable.
Greetings Jean and Judy,
If I may make a comment here… first off, I am a contributor but have no ‘connection’ otherwise with Find A Grave.
The ‘meat and potatoes’ of the site (names and dates) are public info and cannot be copyrighted (this conversation has come up many times in the forums).
Therefore, any contributor that deletes their memorials should expect them to be un-deleted (up on request of others) with the ‘meat-and-potatoes’ info only. This has happened in the past.
Their personally-written Bios and photographs would not be restored, as they are copyrighted to the contributor.
However, if a memorial had a photograph taken by a different contributor, that photograph (unless otherwise denied), should be restored.
Thank you for your article… it was well written 🙂
Absolutely agreed, Franz: there is absolutely no copyright claim to be made as to ordinary facts. The way those facts are expressed can be copyrighted if there’s that creative spark involved, but not the facts themselves.
“The language does not (yet) provide that a contributor grants an irrevocable license”
But neither does it say it’s revocable – just a “license”. Is it well settled under law that it is indeed revokable, or is that something you’d have to litigae? “Tell me, Mr.Plantiff, where in this Terms Of Use you agreed to, does it specify an expiration date?” (fun to watch these arguments as long as you’re not sitting there yourself sweating the outcome, and paying dearly for it.)
If the license is revoked, does that mean his Evil Action (he has “no plans” to be Evil, but plans can change tomorrow) must be undone, or that he just must stop doing it? Did you really suffer any damage?
I like FindAGrave, wish them luck and they can peddle my pictures on the corner if they’d like, but it’s interesting to consider the fine print – The large print giveth and the small print taketh away.
Bob
It’s well settled. A license is never irrevocable unless (a) it expressly says so and/or (b) you were paid for the work.
Thanks,Judy. You’re always there with the answer. I can rest knowing that my 90 year old shoebox snapshots are well protected.
I especially liked your discussion some time ago about the copyrights still possibly existing on ancient pictures snapped by professional photographers of Granny at the state fair, etc, and now in our shoeboxes.
Bob
Thanks for the kind words, Bob!
Thanks for the clarification. Jim Tipton posted an explanation about his decision in the “Lounge” forum at Find-A-Grave. If I read between the lines correctly I get the sense that he was approaching that threshold of being totally overwhelmed and perhaps frustrated at not being able to manage the site to his high expectations. He seems really excited to finally have the time to work on some mobile apps and other features and let Ancestory do the “heavy lifting” of managing the site. I give him high praise for figuring out a way to keep the site free to researchers -in today’s economy it can’t be cheap
It boggles the mind that he managed to keep it free and privately owned as long as he did.
Brava, Judy. Thanks for allaying concerns with your expertise.
Thanks for the kind words.
I had suspected that something like that would happen, or had already happened, since Ancestry.com has added links for Find A Grave on its shaking leaf hints. I do believe that they will in essence remain two separate entities, although owned and opperated by the parent company. I think it’s Ancestry’s way of linking resources to its family tree application. They have the same connections to Fold3 for some military records as well. And since Ancestry.com members receive a discount on Fold3 membership, I wonder if they too are not under the Ancestry.com umbrella.
Fold3.com and Newspapers.com are both owned by Ancestry.
Judy, many of us are concerned with our photos appearing on Ancestry.com. As I understand it, at some point in time, the “save” button may save our photos onto Ancestry or the photos will otherwise appear, attributed to the photographer, on Ancestry. For many, including me, that is simply unacceptable.
If that ever happens, as more than merely a link, then any contributor who does not want that to happen should by rights be able to take the photograph down.
I’d just as soon be pro-active and remove them before they are on Ancestry’s servers. From experience, I know how slow Ancestry is to respond to take-down notices or anything to do with removal. By the way, Jim Tipton did say he hopes the photos will be on Ancestry’s servers in the future.
There’s a HUGE difference between the images being on Ancestry’s servers (that’s hardware) and being on Ancestry.
If the photos are stored on Ancestry’s servers, they could easily be displayed on Ancestry.
If the photos are stored anywhere online, they could easily be displayed on Ancestry — or anywhere else online. That’s just the way the web works.
Which, of course, would be a violation of copyright as well as a violation of Ancestry’s Terms & Conditions. I’m not talking about users copying photos to their trees. I’m talking about Ancestry displaying the photos in accordance with the the licensing agreement in Find A Grave’s TOS “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…“
Yeah, and? Clue me in here, okay? Right now, I’m on Ancestry. There’s a link that says: “Find A Grave marker for Joe Yotz.” If I click on that link, explain to me EXACTLY what the difference is (a) to me, (b) to the photographer and (c) to Joe Yotz, whether clicking on that link takes me to Find A Grave, Ancestry or HellWarmedOver.com. As long as somebody who is NOT on Ancestry can get to that image free, what difference does it make and why in the world would anybody care?
I choose not to contribute photos to Ancestry so why should I not object to them being on Ancestry?
If it bothers you that much, take them down. I can’t imagine why you would, but hey… whatever floats your boat.
Thank you for a calm, well reasoned presentation of the facts.
Thanks for the kind words.
My husband and I contribute to Find-A-Grave because we enjoy taking photos and creating memorials for the people represented by the stones. What we don’t understand is how anyone can get upset over gravestone photos. Anyone can take them – even badly – but let’s face it…they’re stones. Just don’t understand the furor of having the photos appear on Ancestry or any other site. Personally, I couldn’t pick my gravestone photos out of a lineup. Any thoughts?
My two (slightly inconsistent) thoughts on this: (1) why would folks contribute to a site like this if they did NOT want the images used and shared? and (2) why would anyone use someone else’s contribution without giving that person credit? I suspect if everyone did the latter, nobody would worry about the former…
I may be one of the few who do not mind if people use the photos of graves I have posted or any of the information I may have added. I feel it is a way of paying back to those who have helped me learn about my family. I don’t need credit or even really want credit. It’s not why I do it.
Good for you! (But I still suspect if people did routinely give credit, about 99.9% of the complaints would disappear…)
Some people, at least, are concerned about portraits and family photos being copied … this I understand. I have also considered removing a few from Find a Grave, for that reason. But gravestone photos? I really don’t care if they are copied (individually, anyway), but I guess some people are just so angry about Ancestry being the buyer that they want to withdraw all they can of the value of what Ancestry bought. I was feeling a bit betrayed myself, at first, but I am getting over it, I guess!
I have a bit of trouble understanding the brouhaha over gravestone photos myself, Jane. I suspect that you’re right — the real issue is Ancestry, not the photos.
“… my contributions are staying on Find A Grave.” Just make sure you download a backup of them.
Why would I need to download a backup? I had the copies before they did… 🙂
Great article! As you say, I suspect that the real issue is dislike / distrust of Ancestry – or with any corporate genealogy site. I imagine many people would still be freaked out if the buyer were Family Tree DNA or 23andMe.
Find A Grave has been a huge help in my family history research. I am delighted with this purchase as I believe it secures their future as best they can today. I just made my first contributions to the site last month, and more should be on the way in a few weeks.
Ensuring that Find A Grave stays around appears to have been a major motivator in the sale — and is the best reason I can think of.
Thanks for a very sensible and appropriate article 🙂 Like you, I see a bunch of people making up stories then getting upset with their own made up stories. I think it’s silly for people to get so steamed up about it. My goodness, there are so many better things to do – like take photos and working on our family history, which will take the rest of my lifetime and then some. I don’t have time for the ‘drama’ of worrying about what others ‘might’ do. I take photos because I want to share and because so many others have shared with me. I give blanket permission on my Findagrave.com profile for anyone to use my photos any way they wish for their own private use. If they give credit, that’s great. If not, I don’t care either. I’m tickled when someone finds a photo I took or a memorial I created, and it is someone in their family. That alone is worth whatever time and gas and energy I spent to create it or take the photo. I’m very pleased that Jim Tipton created Findagrave.com and kept it alive for so long, and has now found a way to protect it and give him some resources to do what he loves to. That’s a win/win/win for everyone.
It sure does look like this should be just fine, Barbara — and thanks for all you and all volunteers do in contributing content.
I expect that this Find a Grave purchase will follow the path forged when Ancestry purchased Rootsweb. Rootsweb was and is a free site.
However, I’ve noticed, over the years, a general decline in the quality and quantity of the material on Rootsweb. It just isn’t a go-to site for me anymore. I still keep an updated family tree posted there but it has been years since anyone contacted me regarding the information I’ve posted.
I don’t see how the quantity could reasonably decline on Find a Grave short of a massive boycott. I can, however, see a lessening of excitement and belonging as the Ancestry presence become more manifest. How it happens I don’t know but Ancestry has to do something to avoid losing money on this deal. As it does so, interest and contributions will inevitably decline.
Rootsweb and Find a Grave (and Genweb) were all started and run by people with a passion for what they were doing. The problem is that people with passion get tired, get sick, die, and otherwise have to deal with life. One way to deal with that is to sell to managers. We see how it has turned out for Rootsweb. We’ll see for Find a Grave.
I’ve seen the same diminished use from Rootsweb, but suspect it’s due in large measure to the volume of original records coming available online. That may be an oversimplification, but… All we can do here is wait and see… and hope for the best.
Hi Judy, is it legal for the uploaders on these sites to upload photos of graves that are not their family’s??? I was just shown my grandparents resting place was on display on “Find A Grave” for the world to see, and it gave their location and everything. This is legal? Without that families permission??? I felt super weirded out and invaded. :/
Yes, it is absolutely legal. And it may seem a little weird, but it’s sure no worse than having Google Maps photograph your home!
It is called Public Domain! You do not own your ancestors. If a grave is marked then it is there for all the world to see. Folks who take photos are not morbid. This is what I have seen many times. People are interested in where they came from. Prior to 1918 unless there was a family Bible or gravestones, you may not have any record but Census that the women ever lived. So this makes a person seem more alive to their living relatives. It will become more useful as the modern day gypsies leave home and move away from parents. Divorce also places a wedge on families who never see one of their parents.
I am also a contributor to Findagrave. As far as I can tell, any changes to Findagrave are rumor driven. Personally, I took pride in the realization that my cemetery transcriptions, once added, totally completed different cemeteries. I was careful to go over them and not purposely double post. Now, due to alarmists who are removing their entries, there will be cemeteries that will have missing people in them, and I will not know who is missing without going through the entire list. I personally have more of a concern about the mess that they are making than the possibilities of what Ancestry may or may not do to Findagrave. I, too, wonder about Ancestry eventually changing it to a pay site. I will become concerned when I hear of something other than rumor. I have read many articles about this buyout, but this one is by far the most informative that I have found. I have absolutely no plans on removing the memorials that I have uploaded. Didn’t we all do this because we love genealogy and want to give back in some way? Well, apearantly not all. Thanks for the great article. It is the best and the most informative that I have read.
Thanks for joining in the discussion, Bob. I’m very sorry to see that some folks are taking entries down from Find A Grave. That’s really quite a shame.
Can Findagrave lock them out to protect the memorials? I know that we, as contributors, own the memorial, but don’t they have some say in it as well? It is their website. Haven’t we given up some rights to them by them owning the website?
Not without changing the terms of use, Bob. Find A Grave expressly provides that each user may delete any information he/she has contributed.
I just found out the site has been sold and that a new researcher was asked for a credit card to log into the site?? FREE ??
This is a very bad thing – May 2014
Nope nope nope. No credit card needed. Make sure you’re going directly to Find A Grave at http://www.findagrave.com/ and not to Ancestry (which is commercial and now owns Find a Grave). No log-in is required.
Without the submitters there would be no rootsweb.com, no ancestry.com or a find a grave. We do not get paid for submitting, but ancestry.com makes money off the submitters by what they submit, the photos, the information. I enjoyed doing my family history. However, it changed. I started getting insults about my work and the work done by family before me. I doing my own search and not from those sites.
I have been a contributor to FAG for years. I have great respect for them because there are a lot of bullies on the site. But there are many problems with the new search on Ancestry! After this year I am going to cancel my membership with Ancestry. It takes too long to do any research on Ancestry! I do not care to wade through all their crap to find what I need. One other thing that is needed when one contributes to FAG, the way the search engines work, you need to add where they died and were born if it is known. Most of the newer memorials are taken from obituaries so in most cases it is known. This is very helpful for folks who have a common name when 50 show up!
At this time (2016) Find A Grave does require one to register to use the site.
To contribute to or to comment on something at the site, yes, but NOT to simply search for information and view a record.
I have to admit that a few weeks ago when I first confirmed the truth regarding the purchase of FAG, I was very upset, angry and maybe a little of a mind to drop out because I dislike the Ancestry program, resent the fees and am suspicious of their motives, but I understand business as discussed in the earlier comments. For that matter, I don’t like the thought of $1000 for a new I-phone and I will use my old phone until it dies but eventually we learn to live with it…. While I may be slow getting interested again for awhile I have no interest in deleting my submissions. I think the thing that I most dislike now given the situation is that immediately after the sale I started being bombarded on my personal e-mail with offers to join Ancestry and it seemed to insinuate that FAG was history so better sign up now! At that point I “did have” serious thoughts of removing my information. Having read through all of the above comments I feel somewhat better now. Thank you.