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A grave question of terms of use

Find A Grave Memorial

Next in the occasional series on terms of service are the two big websites set up for crowdsourcing1 of tombstones and other death information: Find A Grave; and BillionGraves.

Both are free services, both have content almost exclusively generated and uploaded by users, and their attitudes towards use of their sites as reflected in their terms of use couldn’t be more different.

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.”2

Because these two sites depend almost entirely on user-uploaded content, however, there are two aspects of their terms of use that need to be considered: in addition to the usual question of what use they allow us, the users, to make of the content, users and potential contributors need to ask what rights the sites get in what individuals create and upload.

Find A Grave

Technically speaking, Find A Grave doesn’t have any terms of use. There’s no separate page, no lengthy legal language, no “you can’t do this and you must do that” language anywhere to be found. What it has, instead, are Frequently Asked Questions (FAQs), and its answers to the FAQs are clear and straightforward.

The bottom line for the uses we as users can make of the content on Find A Grave is this: don’t violate anybody’s copyright and you’re fine. Over and over, the FAQs make it clear that contributors shouldn’t upload materials that violate someone else’s copyright and users shouldn’t download and use materials that are copyrighted by someone else.

Examples:

Can I add an obituary to my interment listing?
You should not copy obituary notices from newspapers to an individual’s memorial record unless you have permission from the newspaper to do so or you are the author of the obituary. Some obituaries that were published in 1922 or earlier are now in the public domain. … If you do not have permission to copy an obituary to a memorial, you may put a note stating the name of the newspaper and the date the obituary was published.
Please do NOT add photographs from obituary notices (unless you, personally took the photo), as they are protected by copyright law. Find A Grave reserves the right to remove obituary notices and photographs from memorial records. Similarly, you may not scan an obituary and add it as a photograph to a memorial record.
Obituaries for “famous” individuals are usually written by newspaper staff and can not be posted to Find A Grave as the newspaper company owns that copyright.3

How many photos may be added to a memorial page?
The number of photos that may be added to a memorial page depends on the type of memorial. … Please do not submit any photos that are protected by copyright laws.4

What kind of photos may be added to a memorial page? … General Guidelines
ONLY post photos for which YOU hold the copyright (meaning photos you took)!!!
The copyright of all photos posted to Find A Grave remains with the original submitter. No use of photos for any other website or personal use is given without prior consent of the original submitter.5

Can I add a photo that I found on Find a Grave or on a different website?
No. Please do not add photos to Find A Grave that you have acquired from another memorial or from another source. Photos fall under copyright protection laws, even photographs used in obituaries. In general, if you did not take the photo yourself, you should not post it. The only exceptions to this are photos that are old enough to have fallen into the public domain and photos for which you have received written consent from the copyright holder.6

Someone posted my copyrighted photos! How can I get them removed or get them properly credited?
It is a violation of Find A Grave policy to post such photos. There is a link to this policy on every single content page at the Find A Grave website. As you probably know, having a policy is one thing, but enforcing it can be exceedingly difficult. Once an image is posted anywhere on the internet, many people believe it is ‘free game’ for them to take and use as they wish. Physically (or electronically) preventing this is an impossible challenge because anything that can be viewed on a screen can be captured and reused. That leaves us with a policy, which we clearly state and enforce when violations are brought to our attention. Users who have posted copyrighted material will be sent a warning. Repeat offenders of our copyright policy will have their account suspended.7

These aren’t the only copyright provisions, just a sampling. In a very real sense, they’re the only restrictions Find A Grave puts on use of the entire site.

And one other FAQ provides everything you need to know about the rights Find A Grave gets in the photos and other information individuals create and upload.

The FAQ itself is: “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?” And the answer: “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.”8

BillionGraves

In every respect, BillionGraves couldn’t be more different from Find A Grave. Start with the fact that BillionGraves has a lengthy set of terms of use obviously written by a lawyer who was looking out for the interests of BillionGraves (and not its users). Go from there to the fact that genealogy professionals may not use content from the site at all, even with the permission of the uploaders. And end with the fact that every single person who contributes a photo or a bit of content to the site is giving BillionGraves a wide variety of rights to that content — including the right to package it and sell it someday down the road.

Let’s start with the terms of use. They can be changed at will; it’s the user’s job to keep up with changes.9 BillionGraves may “terminate your BillionGraves membership or other use of the Site or Services without prior notice, and remove and discard Your Content from the Site, for any reason and without prior notice, including, without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of the Terms.”10 If BillionGraves does anything you don’t like, your sole remedy is to stop using the site, and you’re expressly agreeing that you can’t sue BillionGraves.11 If you do something BillionGraves doesn’t like, it doesn’t promise not to sue you.

Use of the site is limited to “gathering genealogical research and not for any commercial purpose.”12 No content may be used “for any commercial purposes.”13 A professional researcher working for a client can never, under any circumstances, download an image from the site to give to a client even if the client’s use of the image is personal. However, the researcher may refer the client to the site.14 It isn’t at all clear that BillionGraves wouldn’t consider it a violation of the terms of use for a professional researcher to go directly to an uploader and ask for a copy of a grave photo, and the only way to contact an uploader is through the BillionGraves system.

Then there’s the whole question of the rights the site gets to images and information uploaded by users. The terms of use provide that by submitting any content, the user “grants BillionGraves a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the user submissions in connection with BillionGraves’s (and its successors’ business), including without limitation for promoting and redistributing part or all of BillionGraves in any media format and through any media channel.”15

In plain English, that means all user-submitted content can be used any way BillionGraves wants in connection with its business — and any way any company that ever buys BillionGraves wants to benefit its business. The content can be packaged onto CDs or DVDs and sold. It can be used on a subscription-only site, even if the free access site is taken down. BillionGraves can sell, assign or transfer the rights to use that content to others. And it never has to pay the user, no matter what use it eventually makes of the uploaded content. The user still owns the copyright, but has given away a huge chunk of the right to exclusive use that a copyright is designed to protect.

In The Legal Genealogist‘s abundant spare time (koff koff), I’m also a photographer. In photographers’ parlance, this particular clause is known as a “rights grab.”16 It’s not a total rights grab, since it doesn’t make a user give away all of the copyright. But it’s a rights grab nonetheless.

That’s probably not a problem now. BillionGraves seems well-run and well-intentioned. But who’s to say who will end up owning this website in a year or two or five? Keep that in mind when you decide whether to upload any image: your right to say no to someone else’s use of that image is gone once you upload it to BillionGraves.


 
SOURCES

Image: Tombstone photo, copyright 2011, Judy G. Russell.

  1. Wikipedia (http://www.wikipedia.com), “Crowdsourcing,” rev. 17 Jun 2012.
  2. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com : accessed 19 Jun 2012).
  3. Submitting Information / Creating Memorials,” Find A Grave (http://www.findagrave.com : accessed 19 Jun 2012).
  4. Working with Photos,” FAQ 44, Find A Grave (http://www.findagrave.com : accessed 19 Jun 2012).
  5. Ibid., FAQ 103.
  6. Ibid., FAQ 142.
  7. Ibid., FAQ 69.
  8. Submitting Information / Creating Memorials,” Find A Grave (http://www.findagrave.com : accessed 19 Jun 2012), emphasis added. See also “Does Find A Grave sell the data or photos I add to other websites?
  9. BillionGraves.com Terms of Use: BillionGraves Terms of Use,” BillionGraves (http://billiongraves.com : accessed 19 Jun 2012).
  10. Ibid., “Termination.”
  11. Ibid., “User Conduct.”
  12. Ibid., “Terms of Use.”
  13. Ibid., “Our Intellectual Property Rights.”
  14. BillionGraves Support to Judy G. Russell, CG, of New Jersey, e-mail, 6 Jun and 11 Jun 2012, “Terms of service: “commercial purpose”?”; privately held by recipient.
  15. BillionGraves.com Terms of Use: User Submissions,” BillionGraves (http://billiongraves.com : accessed 19 Jun 2012).
  16. See e.g. Samuel Lewis, “5 Tips For Avoiding The Rights Grab,” Digital Photo Pro, posted 24 Aug 2010 (http://www.digitalphotopro.com : accessed 19 Jun 2012).
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