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When the law (or rule) steps in

The issue has just come up again in Canada: the idea that there should be advance permission required before photographs are allowed in cemeteries.

This time, it’s the City of Waterloo, Ontario, and it’s just adopted a bylaw that states: “No person shall cause or permit the taking of any photographic or video imaging within any Cemetery except with the prior permission of the Manager.”1

Cemetery services manager Bryce Crouse said it wasn’t intended to stop people from photographing headstones, as genealogists do for Find A Grave or Billion Graves, but rather to keep people from “inappropriate” behavior in cemeteries.2

This isn’t the first time the genealogical community, in Canada or elsewhere, has come up against restrictions on cemetery photography. The first time a reader asked about this, it was almost five years ago, when Timothy Campbell — another Canadian — reported he’d had some issues.

Tim, in Elmira, Ontario, and a cousin of his in Grand Rapids, Michigan, had encountered some problems in taking gravestone photographs in both Canada and the United States. “As an active genealogist I have taken part in transcribing and photographing headstones in cemeteries,” Tim wrote. “I was recently told that I could not photograph headstones in our municipal cemetery without permission from the municipality. … The same scenario happened to my cousin in Grand Rapids, Michigan…”3

Tim’s question then, and the question today, is this: what kind of law lets a governing body get involved in setting rules for cemetery photography?

So let’s revisit the answer from 2012 — because it hasn’t changed one bit.

Permission required?

And the answer to this question is really basic, but it’s one that just about every genealogist — including The Legal Genealogist — tends to forget. It’s the law of property rights.

Now it may seem strange to think of cemeteries as property, particularly when they’re owned by a governmental entity, but any landowner — public or private — has certain rights to control what happens on that land. Even when the land is publicly owned and dedicated to a public purpose, such as a park, the landowner is absolutely entitled to impose time, place and manner restrictions as to what can and can’t be done on the land.

In both the United States and Canada, property laws — and particularly laws regulating cemeteries — are local laws. In the United States, it’s commonly a matter of state law, and state laws may well delegate decision making authority to municipalities or counties.

In Canada, it’s commonly a matter of provincial law, and in Ontario, for example, individual cemeteries are permitted to adopt by-laws that restrict access and other activities in cemeteries.4

And the same is true under Michigan law: state law specifically allows any cemetery corporation operating in Michigan “to make all needful by-laws, rules, and regulations, not inconsistent with this act, that may be necessary to the proper management” of the cemetery corporation.5

So what’s important to remember here is that every cemetery — even a public cemetery — has the right to set its own rules and those rules will be upheld by the courts as long as they’re reasonable. If you don’t obey the rules, you can be asked to leave and charged with trespassing if you refuse.

What does that mean for photography in cemeteries? The fact is that restrictions on photography in cemeteries are extremely common. They don’t usually tend to be very onerous — often, it’s nothing more than a limit on the type of equipment used or on taking photos of funerals or persons mourning without permission. For example, at Arlington National Cemetery just outside of Washington, D.C.:

Photography is permitted within the grounds of Arlington National Cemetery. Public use of a tripod or lights is not permitted without permission from the Office of Public Affairs. …

 

We ask media and cemetery visitors/tourists seeking to photograph those visiting gravesites to respect the solemnity of Arlington National Cemetery by refraining from taking pictures or filming someone who is visibly mourning and asking for permission to film or photograph those visiting a gravesite. Many are very open to talking with media and cemetery visitors about their loved ones and want to see their loved ones honored and remembered.6

At the historic Green-Wood Cemetery in Brooklyn, New York:

We welcome and encourage you to take photos of Green-Wood. …

 

Professional photography (intended for publication or commercial use) is permitted only with the written consent of The Green-Wood Cemetery. The use of movie cameras, video and live models is strictly prohibited.

 

Please note that Green-Wood is an active and working cemetery. Please be respectful of funeral services and those visiting loved ones.7

At the Glenwood Cemetery in Houston, Texas:

Photography for private (not commercial) use is permitted so long as it does not interfere with the quiet enjoyment of the cemetery by other visitors. Photography in available light is preferred, although flash cameras may be used. External light sources not integral to the camera may not be used. Photography of burials is permitted only with the express permission of the person authorizing the burial, and such permission should be made known to the Glenwood office in advance of the burial. Photography for commercial use is prohibited, except with the written permission of the Executive Director. Requests should be submitted to the Glenwood office.8

Occasionally, advance permission and payment of a fee is required. At Brookwood Cemetery in Woking, Surrey, England, an entire page of the cemetery website used to be devoted to its photography policy (in effect since 1854), and the reasons for it including the justification for a fee charged for a permit to take photographs.9

The cemetery explained that:

All visitors are reminded that Brookwood Cemetery is a privately owned and managed burial ground, and it is a courtesy to seek permission to explore the grounds. Over the years this has rarely happened, and with the increasing use of the grounds as a “free” photographic resource, rather than a burial ground, Brookwood Park Ltd has introduced following procedures for any photography in the cemetery. …

 

We would like to clarify our reasons for having these restrictions in place:

 

1. Cemetery staff have to deal with complaints from families who are shocked to discover photographs of their family graves posted on the internet (and sometimes posted for sale).

 

2. It is bereaved families who have raised this as an issue with the cemetery management. We have a duty of care to those with loved ones buried at Brookwood. …

 

6. It is a courtesy to ask permission to take photographs when entering private property. Most photographers don’t bother and don’t feel they have any obligation to do so…. On behalf of grave owners, we disagree.

 

7. The cemetery has had restrictions on photography since its opening in 1854. The change in recent years has been that we have made these restrictions more explicit, in response to complaints from grave owners at Brookwood.10

Today, the cemetery simply says, in its rules and regulations, that “In the interests of all visitors and staff, we will not permit anyone to: …undertake filming or photography without prior authorisation from the Cemetery Manager.”11

Now not every cemetery has restrictions on photography. Many small cemeteries don’t have those kinds of rules; many smaller cemeteries and cemeteries that no longer accept burials don’t even have an active management to contact to ask for permission. I certainly wouldn’t hesitate to take a photograph in a cemetery where there was no office and no staff on site to ask.

But the standard suggestion for photography in any cemetery is good advice regardless: get the rules of the road in advance — know if you need permission, whether there’s a fee, and what the hours are so you don’t accidentally get locked inside the gates.12


SOURCES

  1. See Johanna Weidner, “Plan to curb photography in Waterloo cemeteries worries genealogists,” The Record.com, posted 9 Aug 2017 (https://www.therecord.com/ : accessed 11 Aug 2017).
  2. Ibid.
  3. See Judy G. Russell, “Cemetery photos: permission required?,” The Legal Genealogist, posted 22 Oct 2012 (http://www.legalgenealogist.com/blog : accessed 11 Aug 2017).
  4. See “Funeral, Burial and Cremation Services Act,” S.O. 2002, Chapter 33, currency date: 5 Dec 2016, Ontario eLaws (https://www.ontario.ca/laws : accessed 11 Aug 2017).
  5. By-laws, rules and regulations,” Cemetery Regulation Act, 456.15, Michigan Legislative Website (http://www.legislature.mi.gov/ : accessed 11 Aug 2017).
  6. Information for Photographers,” Arlington National Cemetery (http://www.arlingtoncemetery.mil : accessed 11 Aug 2017).
  7. Visiting Green-Wood: Photography,” Green-Wood Cemetery (http://www.green-wood.com : accessed 11 Aug 2017).
  8. While at Glenwood,” Glenwood Cemetery (http://www.glenwoodcemetery.org : accessed 11 Aug 2017).
  9. See “Photography in Brookwood Cemetery,” Brookwood Cemetery via Wayback Machine (https://web.archive.org/web/ : accessed 11 Aug 2017).
  10. Ibid.
  11. Brookwood Cemetery Rules and Regulations: Conduct,” Brookwood Cemetery (http://www.brookwoodcemetery.com : accessed 11 Aug 2017).
  12. See e.g. Ed Snyder, “11 Tips for Taking Pictures in a Cemetery,” Stone Angels, posted 16 Dec 2005 (http://www.stoneangels.net : accessed 11 Aug 2017).
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