In the January issue, we discussed deliberate theft and plagiarism of resources on the Web.  The scenarios involved one person violating the copyright of another, whether it included text, graphics, or formatting.  In a way, this practice is similar to a student paper that is copied verbatim from a book or article written by someone else.  But the Web can complicate things.  Sometimes even express permission means nothing at all if there are more than two parties sharing information.  Often these dilemmas have existed previously but went unnoticed and unchallenged.  Electronic publishing, however, can illuminate misuse due to misunderstanding when no harm or subterfuge was intended.

EXAMPLES

One example that comes to mind immediately was part of a question asked by one of the County Coordinators in our USGenWeb states:  Who owns an old photograph that is displayed on the Web?

The answer seemed easy enough.  Whenever a visitor contributes photos, texts, or any material to a USGenWeb county page, that material is the property of the submitter.  We can copyright the page, but in doing so, we are only copyrighting the format.  But the contributor can ask to have the material removed at any time or share it with other sites.  If it is their own creation, they can ask to have a copyright statement beneath it--but that is actually implied if anyone asks...

So a person takes a photo of the County Courthouse and wants to put it on our site.  Everything said in the last paragraph applies to this photo.  As the photographer, this person retains the rights to it.  He or she is just asking to have it published so that others who may be interested can see it.  That's simple.  But what if the photo was taken by this visitor's grandfather when he was a boy?  The photo, as a personal creation, still belongs to the grandfather unless he has given it to his child.  But in most cases, these kinds of pictures are older than the legal copyright date limit and can be used without permission anyway.  Also simple--nothing to worry about there...

The complication arises when a contributor sends a portrait--a posed picture taken by an individual working alone or for a studio--of a living or recent family member.  The contributor may be anxious to have the portrait published online.  But to whom does this piece of artwork belong?  From what we've read, the regular copyright laws apply here.  Even if the contributor or someone in her family paid to have the picture taken, it still belongs to the photographer and/or the studio.  This is because it is a creative work.  The photographer probably supplied the background (if any), provided costumes (if any), and made a bunch of artistic suggestions such as "Turn your head to the left" or "Lean closer to your husband."  This, then, means that any studio portrait taken after 1978--even if paid for and in the possession of your contributor--technically cannot be used without the permission of the professional photographer...

PERSONAL EXPERIENCE

We recently became caught in the web of confusion that began with a newspaper.  The newspaper happily agreed to allow us to publish their obituaries on one of our sites.  We were officially named their obituary archives.  This relationship lasted for many years.  Now, in my experience, most obituaries, and other social announcements are written either by the family or by someone on the newspaper staff.  I worked for a newspaper during summers home from college, typesetting the news along with my supervisor.  We worked from pages typewritten by the reporters and editors.  It was a small, local paper, and our audience was truly interested in the lives of people in the community.  In fact, when my own father passed away in 1976, I became quite angry at that paper because they took the obituary I had written and added some things that neither my mother nor I wished to be published.  I felt that the paper had the right to edit spelling, punctuation, and grammar or even to outright reject the piece in its entirety, but it did not have the right to add whole sentences or paragraphs without my permission...

Lately it appears that the writing of many obituaries has been assigned to the funeral home itSelf.  I had never come across this practice until my assistant wrote to a mortuary whose obituaries were in our paper.  Her question was a simple one requiring a direct answer of few words;  but what she got was a diatribe accusing her of limiting their advertising because the obituaries were published verbatim on our non-profit county site.  When the person responding stated that he personally had written these pieces, we took down our Archive, and my assistant had the tough job of explaining to the newspaper's editor that we could no longer continue our service.  The funeral home said that they "allowed" the obituaries to be published by the newspaper but still retained copyright.  We would be allowed to continue only if each and every obituary of theirs had a link to their own page so people could view the original.  Given the number of obituaries each week, this request was impossible to fulfill.  And so, an interesting part of the county site is now gone...

There are many questions here that only a legal expert can answer.  First, we did not know that the obituaries were written by someone at the mortuary.  Their website is beautiful and designed with care, and they mention today's practice of having a memorial site online rather than (or in addition to) publication in a newspaper if you go through several levels to find this statement.  There is no individual byline by any of the obituaries.  It seems, then, that their original agreement with the newspaper allowed solely a print version of the obituaries and did not mention, or was not updated to include, online reprint.  In each obituary their name and website are featured prominently at the end.  The assistant copied all of this information exactly, but we did not turn the website address into a link.  There are very few funeral homes in the area, and given their names, it is very easy to copy and paste their address into a browser--and there was never a question of which funeral home was involved.  Fair use might also come into play since there was no profit gained for anyone from republishing on behalf of the newspaper, and the entire project can be viewed as "educational" since it lists the facts and contributes to the field of genealogy...

Then there is the newspaper's rights.  As mentioned above, it is possible that the publishing agreement between the newspaper and the funeral home was made prior to the widespread use of computers and the internet.  If so, why hasn't it been updated to reflect modern times?  And if so, then are the reprinting rights limited to print only, or are they limited to publication of any sort but only by the paper?  Finally, if the paper has the right to publish the obituaries in any manner, doesn't that right extend to their agents who archive the material?  And if the paper does not have the right to publish electronically, how does this affect other parts of its offerings?  What about news feeds?  What about advertising copy?  And what if a reporter leaves or is fired and claims the pieces he wrote as solely his own creative work?  What do huge sites like Genealogy Bank or US News Obits do in order to bring the announcement of death and the celebration of life to their subscribers?  The answers to these questions may or may not be written into a document somewhere, but regardless, their answers may be up for a long and messy debate...

In scouring the Web for articles dealing with the publication of obituaries, we just found more confusion.  A good many sites deal with the rights of newspapers or the rights of the decedent's family when either of them is the author of the obituary.  But there isn't much about pieces written by mortuary staff.  What there is seems to advocate simply giving up, as we did, in order to avoid controversy altogether...

SUMMARY

Copyright laws have changed in the past hundred years or so.  And along with them, the means of publishing and communication have also been transformed.  From the linotype and press to the voice on the radio to television news to electronic circuits, publishing has become more complex.  In many cases, a single piece of news or a creative idea can be transmitted through all of these means in their entirety or in paraphrase.  Who owns the information, though?  And does ownership extend to all forms of communication or is it limited to one?  Does an entity have to get multiple permissions to publish each obituary, or do they rewrite them to their own standard format and claim that format as their own creative work?  If anyone else has dealt with these questions, we'd love to know what they did and what the consequences were.  In the meantime, unless it is in the public domain, we'll forget about reprinting the reprinted and regretfully provide one less source for research.