Cemetery photos: permission required?

Reader Timothy Campbell in Elmira, Ontario, Canada, and a cousin of his in Grand Rapids, Michigan, have encountered some problems in taking gravestone photographs. “As an active genealogist I have taken part in transcribing and photographing headstones in cemeteries,” Tim writes. “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, in May. … What law does this fall under?”

Permission required?

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.1

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.2

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 tourist 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.3

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

Photography is permitted. Please ask for a copy of our Photography Policy at our main entrance. Professional photography, including use of lights, stands or other equipment, as well as publishing of any photographs taken at Green-Wood, requires written consent of The Green-Wood Cemetery.

Filming and videotaping are strictly prohibited without advance permission and require written consent of The Green-Wood Cemetery.4

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.5

Occasionally, advance permission and payment of a fee is required. At Brookwood Cemetery in Woking, Surrey, England, an entire page of the cemetery website is devoted to its photography policy (in effect since 1854), the reasons for it including the justification for a fee charged for a permit to take photographs, and the need for additional permission if you wish to post a photo you’ve taken on the internet:

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 do not permit any photographs to be taken in the cemetery unless you have a photographic permit issued by the Cemetery Office. These permits prohibit the posting of photographs on the internet. If you wish to do this you will need to apply for further permission from the Cemetery Office.

All requests for photography must be made in writing to the Cemetery Office and permits will be issued at our discretion. … There is a suggested donation of £10, payable to the Brookwood Cemetery Restoration Fund

We are making some photographs available for sale, with donations going to the Brookwood Cemetery Restoration Fund …

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.

3. Monies raised from permits is specifically paid into our Brookwood Cemetery Restoration Fund and used for restoration projects across the cemetery. This includes the cleaning of older memorials (which would otherwise be uncared for), although our most significant project to date has been the restoration of the lake in the Glades of Remembrance.

4. Despite our status as a Grade I Historic Park & Garden, Brookwood Cemetery currently receives no external funding support. This means any work taking place in the cemetery has to be paid for out of income we generate from running and maintaining the cemetery.

5. All visitors to the cemetery should remember that if they visited (say) Kew Gardens or another historic attraction, they would expect to pay an entrance fee. We could argue you are exploiting the cemetery as a free photographic resource.

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.6

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.7


 
SOURCES

  1. See “Funeral, Burial and Cremation Services Act,” S.O. 2002, Chapter 33, as amended 2012, c. 8, Sched. 18, effective 1 July 2012, ServiceOntario eLaws (http://www.e-laws.gov.on.ca : accessed 21 Oct 2012).
  2. By-laws, rules and regulations,” Cemetery Regulation Act, 456.15, Michigan Legislative Website (http://www.legislature.mi.gov/ : accessed 21 Oct 2012).
  3. Information for Photographers,” Arlington National Cemetery (http://www.arlingtoncemetery.mil : accessed 21 Oct 2012).
  4. Hours, Directions, and Rules,” Green-Wood Cemetery (http://www.green-wood.com : accessed 21 Oct 2012).
  5. While at Glenwood,” Glenwood Cemetery (http://www.glenwoodcemetery.org : accessed 21 Oct 2012).
  6. Photography in Brookwood Cemetery,” Brookwood Cemetery (http://www.brookwoodcemetery.com : accessed 21 Oct 2012).
  7. See e.g. Ed Snyder, “11 Tips for Taking Pictures in a Cemetery,” Stone Angels, posted 16 Dec 2005 (http://www.stoneangels.net : accessed 21 Oct 2012).
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149 Responses to Cemetery photos: permission required?

  1. Judy,

    Very interesting blog post. Thank you.

    I have seen some discussion about publishing photographs on websites like Find-A-Grave. Can you provide any guidance on uploading photographs that I have taken. I have seen family researchers being upset because a photograph was uploaded “without family permission”.

    If you have already addressed this issue, I apologize for missing it.

    Thank you,

    Russ

    • Judy G. Russell says:

      Russ, there’s no legal requirement that a family consent to having its loved one’s tombstone photo placed online. It’s not an invasion of privacy, though people often think it is. However, if the family truly objects, I can’t imagine why you wouldn’t agree to take the image down as a matter of courtesy. You can still supply the image to any family member who wants it while not offending those who are deeply troubled by having such information online.

      This whole business of having so much information available online is new to us all, and while the law is pretty clear, the protocols and courtesies involved are still developing, and I think we all need to be mindful that many people are truly unhappy with what they perceive as a loss of privacy in this online world and as a discourtesy to living and dead alike.

      • Judy,

        Thank you very much.

        I was hoping that was your answer.

        I certainly would pull a photo, if requested and I have even sent my photos to family when requested.

        I have also found some relationship’s in Find-A-Grave that may not be clear in other online repositories. A couple of Obituaries as well, they point to the actual newspaper for that obituary.

        Thank you,

        Russ

        • Judy G. Russell says:

          Glad to help. Like you, I’ve found truly remarkable information of great genealogical value on sites like Find-A-Grave and I’d hate to think of it not being available. Being as courteous as we can be to the sensitivities of others is probably the best we can do to make sure it DOES stay available.

      • M says:

        I don’t understand why a fmily would object to a photo of a grave stone appearing online. How can it be invading privacy when the stone was placed in a public setting and the information, chosen by the family, is out there for all to see? Anyone walking through the cemetery can read the stone, there is no restriction to who may look at it. So when a photo of that stone appears online it is exactly the same, anyone can look at it, they just happen to be further away and sitting in front of a computer instead of standing on the grass in front of the stone.

        • Judy G. Russell says:

          It’s the difference between you telling me something and telling the whole world. A lot more people can be “further away and sitting in front of a computer” than can be “standing on the grass in front of the stone.” As a result, LOTS of folks object to having any of their or their family’s personal information online. They don’t mind sharing, but want to know who they’re sharing with and why those folks want to know.

        • Edward Caldwell says:

          I don’t object to the photo being online, but I do object to the photographer of my family members gravestone claiming copywriters ownership of the photo, and then making a page with only the information from the stone and then uploading it to a site like “Find A Grave”

          • Judy G. Russell says:

            Any photographer who takes a picture of just about anything that’s in public view DOES own the copyright on that specific photo. You may not like it, but that’s the law.

      • Cindy Wyatt says:

        What if the tombstone is a picture copyrighted to the artist that we hired to hand draw it? If the people/monument company couldn’t show examples of the tombstone without getting direct consent from the artist than what makes it OK for Find A Grave and other websites to be able to upload and produce copies for anybody that wants them….doesn’t sound right under the law to be able to profit off of someone elses work.

        • Judy G. Russell says:

          There are circumstances under which a release from the original artist might be necessary even for a photograph of an item like a tombstone. Whether your particular situation poses one of those sets of circumstances is something you’ll have to talk to your own lawyer about.

  2. I have been challenged twice here in Georgia, both at large private cemeteries (not publicly owned). Both times all I had to do was explain who I was and what I was doing and they were fine with me taking photos.

    • Judy G. Russell says:

      Stopping off at the office at the outset, introducing ourselves, explaining our purpose and (where applicable) explaining that we’re acting on behalf of a family (as I often am when I’m taking pictures) would go a long way, wouldn’t it?

      • Dorcas Aunger says:

        When I visited the St. James Cemetery in Toronto, I stopped at the office first, to find out where in the cemetery certain graves were located, and told them my intentions to photograph the stones for our family history. They asked me to stop back at the office before I left. When I did, I was given contact information for the cemetery’s genealogist, who supplied me with several records including the press releases and obituaries sent to the newspapers for eleven burials.

  3. Joe Hay says:

    I had subscribed to a website [http://www.findagraveinscotland.com/] that offered gravestone photos for sale. The grave yards were in Scotland and I believe maintained by local government.
    I could only get a downloaded image if I paid for credits in advance. Which is similar to how Scotlandspeople site sells images of documents.
    Would a pay-for-images site be legal in the US, with or without permission of the cemetery association or individual owners of gravesites?
    BTW that Scottish site had a great searchable index but awful photos. Not worth the expense. However the free search will give you the DOD and the cemetery. A great aid for finding kin that have dropped off census records and for ordering their death record from [www.scotlandspeople.gov.uk/]. JPH

    • Judy G. Russell says:

      Lots of cemeteries have restrictions on commercial photography, Joe, and any sale of photos of gravestones would certainly count as commercial use. It would also be one first-class dumb business plan if tried in the US, considering that there are at least two — maybe three — major websites in the US providing this information free.

      • Pak says:

        I found the examples of restrictions above from various cemeteries interesting in that they are trying to make rules and prohibitions to things they legally have no control over.

        In particular, they can not dictate how you use your own photographs. While they may try and claim that you can not use photos from their cemetery for commercial purposes or uploaded to the internet, they have no legal control over your photographs and how you choose to use them.

        The ONLY control they have over a photographer is to boot them from the property and have them charged with trespassing if they fail to leave or come back later if told they can not. Just about everything else is out of their control.

        So to answer the original question, a pay-for-images site would be legal in the US of photos even if the photos are from a cemetery that claims you can not use photos taken while on cemetery grounds. The cemeteries only recourse would be to ban you from entering the cemetery for additional photos and having you arrested for trespassing if they catch you there again.

        • Judy G. Russell says:

          You’re certainly entitled to test out that theory if you wish.

          • Pak says:

            Which theory? Publishing of photos you take at a cemetery which claims to prohibit you publishing photos you took there?

            Generally, when it comes to non-human subject about the only thing you can not publish are things under copyright protection or something like giving away trade secrets (which normally wouldn’t be somewhere in plain site to begin with to photograph).

            If you meant something else, you will have to be more specific as to what you were referring.

            Cheers,
            Pak

        • Tim says:

          The issue here is contract law. If a cemetery has restrictions on how the photographs are used and you take photographs, you are essentially agreeing to the cemetery’s policies creating a legally binding contract between you and the cemetery. If you go on to sell those photos you are in violation of that contract and open to legal recourse. And ignorance of the policy is not a defense. It is your responsibility to find out if there are any restrictions, though they will most likely be on display somewhere you would reasonably be expected to see them.

          • Judy G. Russell says:

            Property, not contract.

          • Pak says:

            Hi Tim,

            One flaw in your reasoning. For a contract to be binding, there has to be “consideration” where both parties offer up something of value. A cemetery that is normally open to the public to freely enter is not offering any consideration to the photographer to be able to enforce a posted internet notice or sign as a “contract”.

            In addition, it looks like the policies references above are from their websites and may or may not actually be posted as signs on the cemetery grounds. Clearly if not posted on the premises, you can not hold people to a “contract” that is not even shown to them.

            So again, if there is no actual contract that can be enforced, then you are back to simply trespassing if asked to stop taking pictures or leave.

          • Judy G. Russell says:

            Allowing you onto the property is consideration by the cemetery; gaining access is consideration for you. But it’s still not contract law; it’s property law.

          • Pak says:

            Even if the cemetery is generally always open to the public? It would seem that since EVERYONE is allowed there normally, allowing you on the property is not anything of value above and beyond what is generally allowed. But I suppose we are wandering way off track here, huh? :)

          • Judy G. Russell says:

            Yeah, a bit off track. Would that this storm would do the same…

  4. While my comment may seem off topic, I have to confess that in reading your introductory explanation of property rights, my mind flew immediately to Google, and their “Street View” version of Google Maps. Why, for instance, does property law not apply to such entities as this company, while it may to such a postage stamp sized plot as a 100-year-old grave? I don’t recall anyone asking my permission for the world to access the online image of my home, for instance. How do such entities supersede the laws you are referring to? Why would these exclusions not also apply to someone posting a photograph to Find A Grave?

    Judy, I appreciate your bringing these practical applications of legal issues to our attention, but I guess I’m just sensing a need for a balancing perspective when so much of our (the living–let alone the dead!) lives are there for the taking, digitally and online.

    • Judy G. Russell says:

      Jacqi, this literally is a separate question I hope to reach very soon (also from a reader!)… possibly even tomorrow. Stay tuned, please.

    • Joseph Reinckens says:

      (I’m an attorney.)
      Google doesn’t drive onto your property to photograph it. By law, you have no reasonable expectation of privacy, privacy interest or property interest in images of things on your land that are publicly visible under normal circumstances from outside your land if those images are made from outside your land.

      If, as happened for instance with Kate Middleton, Google used extreme telephoto lenses, e.g., to look into your windows and show the inside of your home, that MIGHT come under invasion of privacy laws, but not property laws. If you had a 10-foot stockade fence enclosing your backyard and Google used a 12-foot extension arm to see over the fence, that would be invasion of privacy but not a protected property interest.

      A similar situation is paparazzi, TV news crews, etc. You have no right to prevent them from photographing you if they stay on other people’s or public land, but you can prohibit them from coming onto your property. How powerful a telephoto lens/digital zoom they can use before it becomes “not publicly visible” is a case-specific issue.

      If you lived in a gated private-access community with the nearest public property a half mile away and Google used a 200x telephoto lens combined with a 20x digital zoom (4000x) to take a Street View photo of your home, that would definitely be invasion of privacy. But you still wouldn’t have a property interest protectable by law.

      There are some related issues, however. Sad to say, the reality is that laws often are written because ONE person with a chip on their shoulder contacts a sympathetic town councilman, state representative, or whoever and gives them a (true) sob story about some “injustice”. The legislator/councilman decides to “go to bat for the little guy” and proposes an ordinance or law no one else really cares about. So it passes, because there’s no opposition. Because of post-death identity theft and/or lowlifes selling images, etc., of deceased minor celebrities, etc., with whom they have no affiliation, a number of states have enacted statutes that say essentially that the estate or heirs (or whoever) of a decedent have the exclusive right to authorize sale/trade in any image related to decedents. Some limit it to “public figures” (I can’t photograph and sell images of Graceland without permission from Elvis’ estate), but a few don’t. Regarding “I’m not selling”, drug laws, for example, generally define any transfer of possession or ownership as a “sale”. These “reputation protection” (or future ones) may do likewise–depending on the specific wording. Whether these laws would apply to recent photos of gravestones of the long-deceased is an open question and would be on a state-by-state (or local ordinance-by-ordinance) basis, and only a lawsuit that went to an appellate court would shed some light on the issue for that particular statute and very similar situations.

      • Judy G. Russell says:

        I’d be interested in seeing the citations to some of those “you can’t sell any image of any decedent if you’re not the estate or heir” statutes, Joseph. Thanks.

  5. Keith Bouldin says:

    What came to my mind was ownership of the headstones. The cemetery doesn’t pay for them, the family does. I thought plots were purchased, but now I’m wondering if they are leased for … say 99 years or so?

    So I’m thinking that there must be some clause in the purchase/lease of a cemetery plot that the headstones and monuments revert to the cemetery owner after X amount of years? or maybe they become the property of the cemetery when they are installed?

    What about mausoleums? Who owns them?

    • Judy G. Russell says:

      Keith, I don’t know of any cemetery that says it has any claim to ownership of headstones or mausoleums at all. In general, the family retains ownership. What the cemetery is doing is restricting access to those items to third parties (I doubt that they’d ever try to stop the family from photographing its own loved one’s stone).

      • Concetta says:

        Judy, I’ve been in a couple cemeteries that *do* stop family members from taking photos of one’s own families stones without paying for permits, prior arranging the time slot with staff, and being escorted to the location. I’m specifically thinking of a cemetery in Michigan that I have had immense amount of trouble with and have discussed moving my relatives out of it because of their troublesome policies.

        Luckily, indexes of the cemetery are widely available and the issue can be moved around without having to get a photo when it comes to documenting the case. I have noted in my tree where I have independently verified the index with my own eyes and explain the cemetery policy in my file.

        • Judy G. Russell says:

          Ouch, Concetta, that’s really taking restrictions to the extreme. Before you move your relatives, you might consider running for the cemetery board of trustees…

      • Keith Bouldin says:

        I’m having some trouble with how all the different aspects join together…
        I think that the rules about camera equipment and photographing funerals are very reasonable, and necessary. And I can understand that some very popular cemeteries might feel the need for appointments.

        I guess what has me baffled is this: If I have a deed to a plot and I own the headstone, then is seems like the cemetery has no legal right to restrict my taking of photos with a hand held camera by charging me a fee to do so. Now if they frame the fee as an access fee in that they need to have people escorted for some reason, that I could understand, but not a fee to photograph my personal property.

        On that note I’m not clear on “family” ownership of the plot and stones. After a hundred years that might involve hundreds of people. Who is to say who has the right to manage the stones and plot, especially when talking of moving remains?

        I’m thinking that these issues are not clear legally. If more cemeteries treat people like the one Concetta mentions in Michigan then sooner or later these issues will end up in court.

        • Judy G. Russell says:

          Keith, I tend to agree with you on the personal photos of my own family’s headstones when I own the plot. I doubt any cemetery would be upheld in enforcing a fee for that, frankly. As for the question of who gets to say about a plot after many years, the answer is, the courts. It’s property like any other property that passes down by inheritance or will.

          • Keith Bouldin says:

            It’s property like any other property that passes down by inheritance or will.

            I hadn’t thought of that.
            On the bright side any court case deciding the ownership of older graves would involve a lot of family research … possibly a real boon for a genealogist.

          • Judy G. Russell says:

            There’s always a bright side, isn’t there, Keith?

          • Joseph Reinckens says:

            The basic thing that’s not being mentioned here is the practical realities of the situation. Obviously, neither side is going to spend $250-400 per hour for several hundred hours of attorney time to go through a full-blown lawsuit.

            Assuming we’re not talking about Mom and Dad, if the grave(s) are several generations old, simply determining who owns the land would be a nightmare. It would involve determining for each subsequent person (including the son’s surviving wife who died intestate with no children and therefore her interest passed to her siblings or their heirs ….)

            Anyone suing the cemetery on behalf of the current grave owner(s) would probably have to prove a diligent search had been done, show the results of the search and show authorization to sue from at least owners of a majority interest. Very likely the court would require service of notice on any other heirs by publication, which generally costs several hundred dollars.

            A second problem is the issue of whether the suit could be in District Court or would have to be in Probate/Surrogate’s Court.

            And all that is before you ever get to the ACTUAL issues!

          • Judy G. Russell says:

            True in some states, perhaps. Most allow anyone with any interest to have standing. Not that anyone would do it, mind you, but they usually can.

          • Joseph Reinckens says:

            Regarding “standing” (for those unfamiliar with the intricacies of the law), “standing” means “I have a specific legally recognized interest in the situation.”

            Although a descendant several generations down the line might have an interest, it very likely would be a minority interest. For instance, I might own an undivided one percent interest. Again for those unfamiliar with this, that means if property is worth $10,000, my interest in the whole is $100. That doesn’t mean I own one square foot of a 10×10 plot. It means I own one percent of each of the 100 square feet.

            Often — particularly when it comes to probate/surrogacy issues — suit must be brought by owners of a majority interest or at least the person filing suit must make a genuine and reasonable effort to notify owners of a majority. Otherwise, wackos with almost no legal interest could tie up property for years.

          • Judy G. Russell says:

            Good points.

  6. Tim Campbell says:

    re: “I thought plots were purchased”
    In Ontario, when you purchase a “lot” in a cemetery, you are purchasing “interment rights”; not a piece of land.

    • Judy G. Russell says:

      Tim, in some US states you actually get a deed for your cemetery plot. But that only gives the owner specific rights, and doesn’t say anything about the by-laws saying you need permission to photograph there.

      • Paula says:

        Judy,
        I live in Georgia and I have a deed to my cemetery plots which passes to my heirs down through the generations. It is located in a city yet it is a non-perpetual care cemetery if that makes any difference.

        My parents owned lots in next to the largest cemetery in the town where they lived. I do not know if there was a deed but when they passed away the cemetery put me on their records as contact for the lot that is unoccupied. I was one of the two administrators of the estate.

        • Judy G. Russell says:

          It’s all governed by state law, Paula. Good to know the cemetery is being proactive in keeping a contact name for the unoccupied lot. I had issues with a cemetery in Texas that … um … wasn’t very good in its record-keeping (if I may understate the case by several orders of magnitude…).

  7. Scott leonard says:

    When I went to Denmark I learned that my ancestors were buried at a certain public cemetery but that their gravestone had been removed, as well as their bodies, because someone more recently deceased needed the space. I was told that the records showed that the govt had called people labeled as next of Kin but nobody stepped forward and paid for renewal of the plot. They said that grave sites get “recycled” like this every 50 years or so and that this was customary throughout Europe when dealing with non-famous burials.

    • Judy G. Russell says:

      Very true, Scott. Unless the family renews the burial rights, burial spaces in Europe are routinely re-used. I’d love to see the cemeteries where my German relatives were buried — but the operative word, I know, is were. Not are.

      • Joey says:

        Please enlightne me (and others): What becomes of the remians when the land is “recycled” and the previous tenants are evicted?

        • Judy G. Russell says:

          You sure you want to know? In some countries, the remains are buried deeper. In some, any bones are moved to an ossuary. In most cases, enough time has passed that the remains have decomposed.

  8. GR Gordon says:

    I can understand why tripods and accessory lighting equipment might be prohibited, and also why photographers might be required to make appointments in advance, or check in with the cemetery’s management on arrival. Nowadays even amateur photographers are starting to use professional grade photographic tools. The tools themselves have become so portable that it’s now possible to pack enough equipment to furnish a small professional studio into a few carrying cases. You can imagine the damage that could be done by a series of photographers equipped with heavy duty tripods, several sets of remote controlled accessory lights and a collection of light diffusers and relfectors spread around a burial site. It takes much more time to set up all this equipment than it does to take a quick snapshot with a cellphone or point and shoot camera, and the equipment itself may need to be placed on neighboring plots in order to be effective. The cemetery has a right to control access in order to protect the interests of the plot owners and insure that families visiting the graves of relatives will not be inconvenienced by this kind of disruption, or upset by the possibility of tripods being jammed into the ground above their own loved ones’ mortal remains.

    • Judy G. Russell says:

      As the owner of one of those rigs (absent the lights), I have to agree with those kinds of controls, G.R. I have no problem with reasonable time, place and manner restrictions because of the potential for disruption to others. We all do need to be sensitive when we’re in cemeteries anyway.

  9. I am prompted to share some experiences and observations that are somewhat “off topic”, but nevertheless touch upon matters raised in some of the comments to this particular blog.

    As regards the continuing availability of sites such as Find-A-Grave, there was a site for Frederick County, Virginia, one of my core genealogy interests, that was hosted, as I recall, by USGenWeb, that was taken completely down because one person objected, strenuously, to people posting information from her books on the area. While the information was posted without her permission, I happen to know she would not have given permission if asked, for I asked permission to publish index entries for the surname Morgan from one of her books in Morgan Migrations, a magazine I formerly edited and published and she refused. Personally, I have no problems with some of my material being “republished” so long as proper attribution is given, because it brings me and my material to the attention of people who might never learn of it and those truly interested will be apt to “go to the source”, either hiring me for research or purchasing one of my publications, i.e., it is essentially “free advertising”. My colleague, however, saw the postings only in terms of sales that would never happen.

    Thus, indiscriminate posting of information, particularly without seeking permission, can ultimately do more harm than good.

    As regards who retains ownership of a cemetery plot after the death of the original purchaser, unless ownership is specifically bequeathed in a will, that question can only be answered by the laws of intestacy of the state/province/etc. where the gravesite is located.

    Some years ago I was hired to identify the 24 persons buried in a cemetery in Wise County, Virginia, where Dominion Resouces, also known as Virginia Power & Electric, has since built a power plant, so that the next-of-kin could be identified for purposes of granting permission to relocate the graves and allow construction of that power plant.

    Now, before any raises an objection to “violating” a cemetery/gravesite, the family had previously explored moving the cemetery because it was located on the side of a mountain that was accessible only by 4-wheel drive vehicles, horseback or foot and the individual who was caring for it was getting too old to do so.

    The dilemma I faced was that 13 of the 24 graves, a majority, had no stones, so there was a question of how many graves could remain unidentified for the necessary exhumation permits to be issued? Identifying 2 of the unknowns would reduce the percentage unknowns represented to less than 50%, but still leave a majority of the unknowns unidentified. Identifying 6 unknowns would increase the number of known graves to 18, or 75% of the graves, but still leave a majority of the previously unidentified as unknown.

    I was able to identify 12 of the 14 unknowns. Would the Court grant an exhumation permit with there still being 2 unknowns?

    My research had established that those buried in the cemetery were all related to a single individual by either blood or marriage, though they represented just 6 of the 12 children of that common ancestor. What I proposed to Dominion’s attorneys was that it be argued the relatives of 6 children of the common ancestor the burials represented constituted a “special class” by virtue of that common ancestry, and thus, with there being a reasonable presumption that the two unknowns also shared that common ancestry, the survivors of the known burials could speak for the benefit of the 2 unknowns.

    That argument was accepted by the Court and established a new legal precedent in Virginia, though its future application will be quite limited.

    As a further note in response to the “violation” of the cemetery, all 24 individuals were relocated to a nearby perpetual care cemetery whose director, somewhat coincidently, is related to the family, with funerals conducted for each, including one with full military honors for a World War 2 veterans who was the last burial known to have occurred there.

  10. Diane Lowry says:

    Interesting article and the Comments following. I remember my Father telling me of driving his Mother from cemetery to cemetery all over New England so she could Search for family ancesters. He was 14 at the time, but apparently was not required to have a licence to drive. Grandma would walk around the cemetery and make notes on names and dates. I can only imagine the response if she were to do that today.

    • Judy G. Russell says:

      I’ve never encountered any issue visiting a cemetery and taking notes, Diane, and only very rarely when taking photos. Most restrictions are reasonable.

    • Pat Howk says:

      There shouldn’t be any problems in public cemeteries. Private cemeteries or graveyard you need permission and for some public ones in the country you need to get permission from the landowners before trespassing on their land. Most will willingly let you, but too many times the public has left gates open or been destructive. Always be polite.

  11. David Fournier says:

    Well we all know that the people who are resting there peacefully have no objections.It seems that only the living like to object. I know all about wondering around cemeterys looking for graves of ancestors. I have had more luck searching the cemeterys on line where there are pictures. I know that I would have no objections.

    • Judy G. Russell says:

      Most people wouldn’t object to reasonable photos being taken, David.

      • Joey says:

        When I first started working on my family tree, I found Internet sites very helpful – especially the gravestone sites. I decided to “pay-it-forward” (in gratitude) and add a few photos myself, to possibly help someone else searching for relatives. (This project has since grown to several thousand photos.) At first I was really nervous taking photos, like I was trespassing or violating someone’s rights/space. But a few dozen photos later, a strange thing happened while photographing a stone. I found myself in a conversation with “someone” whom I will assume was the deceased. And I made a promise that I would take that photo and “put it out there” so that people would know that they had lived – and that they would not be forgotten. (Many of my photos are taken in older sections of cemeteries – or some overtaken by weeds, trees, etc.). Now, it is not unusual for me to tell them that my intentions are to make sure that they are not forgotten – and that maybe someone is already trying to find them. And yes, sometimes I feel that some “stones” don’t want their photo taken – and I respect that and bypass them. But once, while in another state, I entered a cemetery as the sun was setting and knew I only had a few minutes before it would be too dark (and too cold!) to take photos. I hurried along and was about to leave when I found myself almost running to another section of the cemetery, where I quickly took pictures of a family plot. One stone in particular had my attention (although they were all similar in shape and size, and only birth and death years). I felt strange but didn’t give it any more thought until weeks later when I downloaded the card and saw the stone again. Being curious, I investigated this “pull”. Turned out he had been murdered by an outlaw. My point is that folks who are living may feel violated, but maybe the dead are glad someone has finally come to visit them. Maybe they have a story to tell. Maybe they WANT to be found!

  12. Bill Wallace says:

    Thanks for the article. My question is, If a headstone has follow, or was pushed over, why can`t someone upright it if only to check the name of the deceased?

    • Judy G. Russell says:

      The biggest reason I can think of is that moving the stone may make the problem worse, Bill. I’d certainly always try to get permission (and assistance!) from the cemetery if there’s an office or staff anywhere around.

    • Robert Chudek says:

      There are at least two problems regarding “good intentioned people” trying to move or upright a cemetery stone. The first problem is if a monument is of any substantial size, you will find these stones are incredibly heavy (hundreds of pounds). The second problem relates to the first, the possibility of getting injured while trying to manipulate a stone.

      • Judy G. Russell says:

        Good points.

      • Joseph Reinckens says:

        I’ve only started photographing stones recently and there a large number of small granite “bars” (I don’t know the correct term) as little as maybe 4 inches wide probably 4-6 inches deep and 18 inches long as borders of the grave, that obviously were nicely squared but have become tilted. It tried moving a few of them “just a smidge” right next to the gravestone to straighten them a bit. I was amazed that I couldn’t budge ANY of them even a LITTLE!

  13. Rob says:

    By restricting any access to cemeteries and burial plots by the means of paying a fee or respecting the rules of some property owners, this type of thing is doing a great disservice to future descendants, frustrating those who would be trying to find out where their ancestors were buried at and seeing the tombstones for themselves.

    Really a great disservice to posterity and history.

    • Judy G. Russell says:

      Rob, I don’t know of many cemeteries that restrict access, particularly by plot owners (though small private family cemeteries on private land are a whole ‘nother kettle of fish).

      • Joey says:

        Me again! Check out Mt. Vernon Cemetery in Philadelphia. Even family can be denied access.

        • Judy G. Russell says:

          I believe (but am not 100% certain) that there are no active burials going on at Mt. Vernon, which may explain some of the restrictions. It is very very restrictive, however.

  14. Suzanne Matson says:

    I’ve thoroughly enjoyed reading the wide variety of thoughts about taking photographs in cemeteries. Speaking from the other side as a member of a cemetery committee with responsibility to care for a church graveyard which is also listed on the National Register of Historic Places, we have found our most pressing problems to be inappropriate cleaning of stones for “better” photos, dog owners who don’t clean up after their dogs, and illicit drug use. We do not object to photos as long as the property and others present in the cemetery are treated with courtesy and respect. Further, we have photographed every stone for every person who died prior to 1945. These are available free by request. The obituaries we have been able to located are also kept in a file in the church office.

    To attempt to address the problems we had as mentioned above, we obtained expert advice on the proper cleaning of stones and this information is available to visitors. There is a permanent sign stating that no stones are to be cleaned without permission in the cemetery and to contact the office for information. Because of the lack of respect shown by dog owners in the area, dog owners may no longer walk their dogs in the cemetery. To deal with the illicit drug use, we finally had to have the cemetery “posted” with appropriate signs stating that the cemetery is open from 6 AM to 8 PM daily. The police have been granted authority to arrest anyone found in the cemetery during prohibited hours.

    Some who read this may take exception to the decisions made. Unless you are involved with the management of a cemetery, it may sometimes be difficult to understand the policies in place. I do welcome any comments.

    • Judy G. Russell says:

      Thanks so much for offering this point of view. Seems to me that courtesy and common sense would go a long way.

  15. Harry Ross says:

    This may be slightly off-topic or not but I’ve often wondered who does own the copyright to a tombstone? Is it the mason, the monument company, the cemetery or the purchaser’s heirs?

    • Judy G. Russell says:

      Good question, Harry. It won’t be the cemetery. As among the others it depends on the written agreements among them. Artist first, unless his contract with the monument company makes it a work for hire. Artist and/or monument company could transfer rights to the family by contract.

    • Joseph Reinckens says:

      In the U.S., it depends if it is pre-1978. Up until 1978, copyright was obtained by putting the notice [c in a circle, NOT (c) ] or the word Copyright with the year AND the name of the person/organization asserting the copyright, e.g., “Copyright 1952, Harry Smith” or “[circled c] 1952, Harry Smith”. Because typewriters didn’t contain the circled c often (c) was substituted. The courts never ruled on whether that was an acceptable substitute. Although many people put a copyright notice on materials, I don’t recall whether filing with the U.S. copyright office was required to actually have a copyright.

      Also, historically both state and federal laws created copyrights. Around 1978 the law changed and the federal government took exclusive control of copyright laws. There are no more state copyrights.

      Mainly because of lobbying by the music, TV and film industries, the law was completely revised in the late 1970′s. Starting Jan 1, 1978, ANYTHING, whether an image, text, melody, musical arrangement, etc., is AUTOMATICALLY copyrighted once committed to physical form UNLESS there is an EXPRESS dedication of the work to the public domain!

      For instance, Ancestry.com will not accept donations of yearbooks from 1978 forward unless it has written approval from the copyright owner. Normally that is the school, because the yearbook is a “work for hire”. Since most schools are scared of their own shadow that someone might sue them over some imagined “grievance”, it’s pretty much impossible to get permission to have post-1977 yearbooks scanned.

      To enforce a copyright by suit, it now must be registered, but you can register it at any time before suit, not just when the work is created.

      Another problem is the Sonny Bono Copyright Term Extension Act. Again under lobbying from the entertainment industry, U.S copyright by a corporation extends 120 years from creation and for an individual, 70 years after the individual’s death. It applied to all copyrights then in effect. The purpose was so Disney, companies that owned the rights to Elvis and Sinatra, etc., could continue to profit from their ownership of that intellectual property.

      I’m not criticizing the intended goal. On a lot of Disney movies, they didn’t see a profit for decades. If people still want to buy Beatles music, I see no reason those who invested in creating and popularizing it, transforming formats, etc., shouldn’t be allowed to profit from such efforts.

      Unfortunately, the laws weren’t reasonably restricted to material with genuine commercial value. And so, technically, they also apply to tombstones!

  16. Betsy says:

    Thanks to all of you for your comments. Our cemetery board is setting up a website; all of the issues mentioned should be addressed by the board so that we can publish our policies. We recently modified our deeds to clarify that the purchaser is granted the right or privilege of interment of human remains and the right to provide an approved memorial. The ownership in fee of the land remains in the cemetery corporation.

    • Judy G. Russell says:

      I assume your cemetery corporation documents say what happens to the ownership if the corporation ever dissolves. If not, it’s something to think about for sure.

    • Joseph Reinckens says:

      It also should detail what happens:

      1) in the event of corporate bankruptcy;
      2) sale of corporate assets for the benefit of creditors; or
      3) the corporation is put into voluntary or involuntary receivership.

      Often although one of those occurs, the corporation may be continued “on paper”, possibly for a decade, to protect former directors, officers and employees from potential lawsuits, by keeping available the “corporate veil”.

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  18. Al Hester says:

    The discussion about photographic access to graves in cemeteries seems to have stirred up a lot of different opinions. The lot owners probably have no property rights to the aisles, roadways, public paths, etc. in publicly owned or operated cemeteries. I have always been taught that photographers and/or reporters are not violating property rights or privacy if they photograph from public roadways, streets, etc. The owners of various lots probably have no legal right to deny photos from publicly owned paths, roadways, etc. Also nothing prohibits a photographer from using a telephoto lens if he/she is on public property, in my opinion. Privately operated cemeteries may be a different story. I do know of a very large, private cemetery which will even kick out visitors who have no one buried in the cemetery. This policy really hampers research, history or genealogy studies.

    • Judy G. Russell says:

      Most cemeteries are privately-owned and operated, Al. And if state law allows a cemetery (including a public cemetery) to set rules and it does so, then those rules will trump that general right of access concept. I agree that it hampers research to bar visitors, and hope that with patience, reason, common sense and common courtesy, we can work this out on a case-by-case basis.

  19. Laurie Mathews says:

    This has been a very interesting discussion. I have been very lucky and have never run into any problems taking photos at local cemeteries. In a number of cases, I’ve contacted the cemetery office and have always found them to be extremely helpful by providing cemetery maps and identifying specific locations of graves for me. I have also received copies of cemetery records for direct family members. I’ve learned that access to this information is limited because it is considered medical information protected under HIPPA.

    I’ve heard suggestions on a number of occasions about doing cemetery rubbings for headstones that are difficult to read. While I loved doing this as a child, I don’t do it because I feel like I may be interfering with the condition of the headstone. I limit physical contact with a headstone to brushing off leaves and dirt.

    • Judy G. Russell says:

      HIPAA absolutely does NOT apply to cemetery records. Whoever is telling you that completely misunderstands the law. You might want to print out my blog post Getting hip on HIPAA and take it with you to the cemetry next time.

      • Joseph Reinckens says:

        I’m an attorney who represents hospitals where people have been involved in accidents (generally auto accidents), and have filed a liability or uninsured motorist or underinsured motorist insurance claim. Either hospital liens or contractual “assignment of benefits” clauses in the hospital admission papers give the hospital a legal claim to some of the insurance money, and we get involved to see the hospital gets paid from those funds. I’ve worked at this firm 10-1/2 years and worked at another firm about 5 years.

        We deal with medical records and information every day. HIPAA applies to medical information provided by or obtained from medical providers, insurance companies and others in that group. Papers that list a cause of death provided to a funeral home might come under HIPAA. Although I’m not familiar with cemetery paperwork, I see no reason why a cemetery should have any records containing PHI (Personal Health Information). Information such as dates of birth and death, name, etc., are NOT PHI and are NOT subject to HIPAA.

        • Judy G. Russell says:

          Only the original provider of the information, if it is in fact HIPAA-type information, is covered. The law simply doesn’t reach the ultimate recipient of that information.

          • Joanne says:

            I’ve recently scanned some cemetery records and in the books it does have listed the cause of death.
            When and if I decide to transcribe them, I am only going to include that information if it was a mining accident.
            Also when a person does get buried in a cemetery, most require a copy of the death certificate.
            But where does fit into many of the states releasing death records and they would have the cause of death on them.

          • Judy G. Russell says:

            The cause of death is only withheld in some states and for some time periods, Joanne. And if you get the information from the family, there’s nothing to stop the family from disclosing the cause of death. So I wouldn’t be too concerned about the issue of cause of death especially on older records before people got (in my view) literally paranoid about privacy.

          • GR Gordon says:

            A historic cemetery in our area gave the local DAR chapter permission to collect information from the gravestones and the burial register, but the chapter had to agree to NOT include any of the causes of death shown in the burial register. While most of the omitted information would probably have been considered innocuous, there is no question that a few of the entries might have raised a howl about invasion of privacy.

          • Judy G. Russell says:

            Very good point. There are reasons — and sometimes very good ones — why people might be concerned.

  20. Douglas J. Taber II says:

    I understand the property law bit and all but in most cases in Michigan nothing is ever really said. Also though, once a person has become deceased, in the State of Michigan, there is no longer a right to privacy. In a situation should one raise issues over privacy concerns, in the State of Michigan, should one post something online, such as photos, a segment on a family history and so on, remaining & living family members of the deceased have the right to request that their names not be published. Thats about as far as privacy laws go for this type of thing. I have been photographing, transcribing and that sort of thing for 25+ years and I will stand my ground. So long as Im not in violation of any known laws, I will continue with my work.

    • Judy G. Russell says:

      I don’t see privacy concerns over the deceased, Douglas. Only issues as to asking for permission to take the photos.

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  22. sgtkidjoe says:

    I have run into this problems with a particular corporation run cemetery in Suffolk, VA. I did a search of VA law and found this:

    (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+57-27.1)

    § 57-27.1. Access to cemeteries located on private property; cause of action for injunctive relief; applicability.

    A. Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by (i) family members and descendants of deceased persons buried there; (ii) any cemetery plot owner; and (iii) any person engaging in genealogy research, who has given reasonable notice to the owner of record or to the occupant of the property or both. No landowner shall erect a wall, fence or other structure or device that prevents ingress and egress to the cemetery or grave, unless the wall, fence or other structure or device has a gate or other means by which ingress and egress can be accomplished by persons specified in this subsection. The landowner may designate the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by a view of the property. The landowner, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, claim, action, or cause of action arising out of the access granted pursuant to this section.

    B. The right of ingress and egress granted to persons specified in subsection A shall be reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research. The right of ingress and egress shall not be construed to provide a right to operate motor vehicles on the property for the purpose of accessing a cemetery or gravesite unless there is a road or adequate right-of-way that permits access by a motor vehicle and the owner has given written permission to use the road or right-of-way of necessity.

    C. Any person entering onto private property to access a gravesite or cemetery shall be responsible for conducting himself in a manner that does not damage the private lands, the cemetery or gravesites and shall be liable to the owner of the property for any damage caused as a result of his access.

    D. Any person denied reasonable access under the provisions of this section may bring an action in the circuit court where the property is located to enjoin the owner of the property from denying the person reasonable ingress and egress to the cemetery or gravesite. In granting such relief, the court may (i) set the frequency of access, hours and duration of the access and (ii) award reasonable attorney fees and costs to the person denied such access.

    E. The provisions of this section shall not apply to any deed or other written instrument that creates or reserves a cemetery or gravesite on private property.

    So today I stopped by the cemetery to discuss this with them. As usual, they were nasty and tried to cite “privacy laws” for the deceased. I discuss with them that the Supreme Court and VA law do not grant or recognize privacy rights for the dead as they are not being harmed. I was then told that it is a private cemetery and they could deny access to the cemetery, to which I promptly handed them a copy of this state law.

    The glitch I see in this issue, or law, is that it allows “ingress and egress” to private cemeteries for the purpose of genealogy. Taking pictures is documenting genealogy just the same as pictures of a historic building, or of a person. A question I’m sure will need to be addressed by a court at some point and at someones expense.

    Noted in section D, this can be decided in Circuit court to set reasonable hours for this.

    Joe in

    • Judy G. Russell says:

      Virginia has the strongest statute of all the states with respect to access to cemeteries on private property. Note however that the statute says access is “limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research.” There is certainly an argument to be made — on both sides — on the issue of photographing the stones. It’s not a slam dunk for anybody.

      • sgtkidjoe says:

        I would agree and it has become pretty testy with this particular one I visit.

        I guess the fine print is that a court can decide hours and possible if pictures are allowed.

        An argument can be made that pictures are the best way to document items since people steal the brass markers or can otherwise deface headstones.

  23. Joanne says:

    I live in Pennsylvania, and have recently found a relatives gravesite on a small farm in Schuylkill county. It is located on private land, which is fine by me, as the current owners allow you to go it as long as you get their permission. There are only 2 headstones that were found, but I was told by a relative of the previous owners that back in the 1950′s-1960′s, someone in the family wanted permission to plow the cemetery under and someone in the family of those buried there fought them on it. So my question is where at the courthouse would I go to see a copy of this ? My objective is to hopefully find out who all was buried in this cemetery.
    Any ideas ?

    • Judy G. Russell says:

      I would frankly start with the local newspapers: I can’t imagine a lawsuit over that kind of cemetery issue that wouldn’t make the local papers. Then I’d head for the court clerk’s office, explain the issue and see if you can review the docket books for the time period. Pennsylvania laws about cemeteries are online at the Pennsylvania Historical & Museum Commission website and looking at those it looks pretty much like the county court of common pleas would have had jurisdiction. And if memory serves me correctly the clerk in PA courts is the prothonotary, so that’s the office that should have the dockets.

    • Mark says:

      Joanne,

      In my experience, cases regarding removals of graves would have been filed with the Clerk of Courts. The most likely set of dockets would be the Miscellaneous Quarter Sessions Dockets, which are at the State Archives through 1971 (record series #47.317, under Prothonotary but should be Clerk of Courts). I have been through these dockets, and although I do not recall seeing any case of this type, I probably wouldn’t have noticed it if it were not under a cemetery or church name. The indexing in these dockets is somewhat unusual, so you may have to page through the individual dockets. I have seen these types of actions in the Miscellaneous Quarter Sessions Dockets in neighboring Berks County.

      If the case is not in there, and if it came about as some type of criminal action against the owners of the property, it could also be in the Sessions Dockets, which are at the State Archives through 1969 (record series #47.415). For both Miscellaneous Quarter Sessions Dockets and Sessions Dockets, later dockets should be at the Schuylkill County Archives or at the Clerk of Courts, which are both in the courthouse, although the dockets may have been renamed since.

      The other possibility could be to look in equity cases, which would have been filed with the Prothonotary, in case it came about as a private dispute. I do know that neighboring Berks and Northumberland Counties maintained separate Equity Dockets, but I’m not sure if they did this in Schuylkill County. Either the Prothonotary or the Schuylkill County Archives would have more information on this front.

      Good luck.

  24. allen k. says:

    This pretty much answered quite a few questions i had. most of the graveyards around here don’t have any restrictions other than not to leave trash laying around, but they are also small ones too.

  25. Jon oyama says:

    Are there any laws or regulations that helps ensure to the clients of animal cremations in California that it is their exact pets Ashes being returned?

  26. Mike says:

    I am in Florida and have helped with Find-A-Grave for 6 years. I never had trouble with anybody while taking photographs until two days ago. An older lady at one local cemetery started yelling at me when she saw me taking pictures. She never identified herself or if she was a Board member or cemetery owner. She said I was disrespecting those people buried there and that it was wrong to put the pictures on the internet, even thought I didn’t tell her how I was sending the pictures. I think she had seen others photograph before because she was really angry and she didn’t stop yelling to listen to me. I tried to say that I’m a volunteer and my photography was at the request of family who live far away. But she already had her mind made up and nobody could tell her different. She said she was “going to do something about this”, she got back in her car to leave, and so I left to. Later I started to realize, for the first time in 6 years, that the cemeteries are private property. So I started doing research and found this site. The lady was rude and mean, but she helped me realize that cemeteries are private property and some may be ok with pictures but others may not. I looked at the website for Florida Division of Funeral, Cemetery & Consumer Services, but haven’t found information specific to taking photographs at private cemeteries. Do you have any information on Florida? I don’t want to break the law.

    • Judy G. Russell says:

      Good for you for wanting to know the law, Mike! Florida recognizes a right of access for descendants and relatives ” for the purpose of visiting the cemetery at reasonable times and in a reasonable manner.” It doesn’t define what you can do while visiting, and it doesn’t specifically address the question of what happens when a descendant or relative asks someone else to visit to take a photo. In your shoes, I would make sure I had a copy of the Florida law (section 704.08 which is online here) with me in case I was ever challenged by a police officer or anyone else with authority. I would also make sure I had with me a copy of the letter or email from the family asking me to take the photo.

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  28. Dana Thompson says:

    Last night I went to a cementery here in Louisiana that I have taken pictures in many of nights.. Well two cop cars pull up and inform me that I do not havee the right to be there, its a public cementery wide open with no signs posted anywhere saying no tresspassing after hours. They informed me that I can not take pictures of a grave if I do not know that person.. I got arrested but I plan on fighting it in court. I could understand if it was posted but its not and on the same hand there was two joggers in there jogging, so why did I get arrested for tresspassing and they didnt? We will see how it turns out… I dont think they can get away with it but than again I live in Louisiana and they make their own rules..

    • Judy G. Russell says:

      Good grief, Dana! That’s wild! Hope you have a good lawyer (and call the ACLU if you don’t!).

      • Dana Thompson says:

        Thank you I will keep that in mind. I just dont understand how they can charge me with that, its not private property, we will see how it goes…

  29. Garth says:

    This post really references photos as they relate to property rights. However, what about privacy laws? In my city the cemetery web sites don’t publish data for burials less than 25 years ago. This is because of my province’s Freedom of Information and Protection of Privacy Act. Are people checking this before publishing photos?

    • Judy G. Russell says:

      Unless your province also bans the publication of obituaries, that act is — frankly — downright silly.

  30. Dave says:

    I’m glad I found this thread.

    My wife and I have been photographing cemeteries for years (over 400 thus far), in both the US and the UK. Although we have not researched the legal technicalities around it, these are the rules we generally follow:

    *Although we photograph recently (<=2 generations) deceased plots, we almost never publish them on our website, although a few of the cemeteries we have shot were relatively new (<50 years), so a few exceptions to this rule. We try to be sensitive to the survivors. We have never been challenged on a single photograph we have posted to the internet (our site receives very little traffic – that probably is a factor)

    *On the few occasions where we have found old cemeteries on private land (more common in the West), we ALWAYS ask for permission, or leave it un-photographed. Usually the latter.

    *The one cemetery actually closest to our home – a pioneer cemetery – has been made inaccessible by the city due to land ownership and land use disputes extending back decades. Our town's founding fathers are buried there, and it is a historic site, technically on public land. When I inquired, I was told explicitly we were NOT permitted to photograph there (you can get close enough to actually shoot the cemetery and some stones.) I intend to challenge this, within reason.

    * With the exception of a very large military cemetery in our area, we have never seen a sign or posted prohibition against photographs. The military cemetery does not admit visitors without a direct family connection to a deceased in that cemetery anyway.

    * We have never made a penny from a single grave or cemetery photograph, ever.

    Given this – do you think we are acting within reason?

  31. Rochelle says:

    This has been quite an interesting read, I have always been a person that loved going to graveyards, to me they just seem peaceful (call me crazy). I actually have over the past few years started taking photos of older grave sites and I have never had an issue. In fact so far everywhere that I have gone the caretakers actually have really appreciated that someone was photographing the older grave stones because over time so many of them have become damaged and there is no telling when more will be broken. I do this more as art and blur out or alter names if they are posted to the internet, so my question is without a name on the stone would any one really have the ability to do anything? (that is if a family member is even around)

    • Judy G. Russell says:

      I can’t imagine anyone would complain, Rochelle.

      • Rochelle says:

        Thanks Judy :)

      • Kristy Gravlin says:

        If Rochelle (11/8/13 comment) “blurs or changes” the names, does she note that with the photo. If not, think of the genealogists who find a stone marked with their surname (but it has been changed) and the chaos that would ensue as one person says “not in our family for real” and the other says “must be, it’s in the cemetery”. Does Rochelle photograph only artistic, picturesque stones? If it is a “regular” stone, and she changes the name in some way, why bother? Interesting to me to know her reasoning, and what she does about misleading other researchers..

        • Judy G. Russell says:

          Rochelle is talking about using the image as art, not for genealogy. The name is entirely NOT readable, and the image wouldn’t be on a site like Find A Grave.

  32. Hugh says:

    One thing that a lot of people are not taking into consideration is the problem of identity theft. I think cemetery photos are extremely helpful for people working on the family tree as there are not always any records available for ancestors other than tombstones. I have a situation where when my father died we had a tombstone made and we at the same time had my mother’s name including her maiden name and birth date engraved at the same time as to save money on the cost of having this done when my mother passes away. This used to be a common practise as this is an expensive process to have done. What we were not thinking about was the issue of identity theft or even imaging that a photo would be posted on the internet. Someone has taken a photo which has been posted on Find A Grave which has naturally upset the family especially my mother considering that if you google her name, this is the first thing that comes up with her full name and date of birth for the world to see. I contacted the person who posted it shortly after it had been posted and explained the situation and asked them to either remove it or at least edit the photo to remove my mothers information. Unfortunately this person has decided to ignore my request and not even to respond to my emails and it has now been a couple of years and the photo is now posted at several other websites. I would hope people would take this into consideration in the future when taking pictures and have the courtesy edit their photo as to not show living peoples information just like most family trees that are online. Also remember just because there is not a sign posted saying photos are not allowed doesn’t mean that they are. I live in Toronto, Canada and the largest
    cemetery group here “The Mount Pleasant Cemetery Group” does not have it posted at any of their cemeteries however if you go to their website and read the bylaws which are posted online you will find that photos are not allowed without their permission. Ignorance is no excuse.

    • Judy G. Russell says:

      It’s certainly a concern, Hugh, and if the photo were one I had posted, I would certainly agree to take it down (or at least edit it to remove the information about the living person). I doubt that it’s really all that much of a risk, compared to all the other bigger risks of identity theft that are out there, but I do understand the concern.

    • Mary Shearer says:

      From Find A Grave FAQ:

      Is it acceptable to add a memorial for someone who is still living?
      Please try to avoid it. In general, we do not encourage adding memorials for individuals who are still living. We do realize, however, that when transcribing a cemetery, it is not always possible to determine if the person is living or not. Memorials for individuals who are alive will be removed when requested.

      Email or write Find a Grave at:
      cemetery@findagrave.com

      Find A Grave
      PO Box 522107
      Salt Lake City, UT 84152-2107

      Be sure to list the memorial name and #.

      Mary

      • Judy G. Russell says:

        Good info, Mary, thanks.

        • Kristy Gravlin says:

          One possibility. There are people who “do” Find-a-Grave work for a while and then, for one reason or another (old age, illness, death, boredom) quit. So while Hugh may have written to the person who put up the picture, s/he may no longer be in the loop. I would think that not hearing back would mean write to Find-a-Grave itself, explain your situation, and ask if they can help, either by contacting the volunteer, or by just changing the photo.

  33. Linda Ellis says:

    Thank you for writing this story. The issue of permission pervades several aspects connected to cemeteries and gravestones. Here in Ohio, we have the Ohio Revised Codes, which are outdated and difficult to interpret. So, it is great to see more details devoted to this subject. I hope to see more information posted regarding the permission issue as it pertains to visting ancetral gravesites on private land and cleaning tombstones. Thank you.

    • Judy G. Russell says:

      You can bet that this is a subject that will be revisited from time to time, Linda. Thanks for the pointers to subjects that might be of help.

  34. Kitty Cooper says:

    Is placing photographs on a family history website “publishing?” as in “as publishing of any photographs taken at Green-Wood, requires written consent of The Green-Wood Cemetery.”

    Oops, guess I better wrtie to them?

  35. Jarrett says:

    This thread has just shown me why the law is held in such contempt by the public. First of all with cell phones I fail to see how they know you are taking pictures. Also, coming from the rural South we were always visiting cemeteries, and it is tradition to take a picture of the deceased in their casket as well as to take pictures after the burial. I do not understand why anyone would object to their loved one’s tombstone being put online after they are gone, to me I would be happy that they were remembered. I did not realize that HOA board members appear to retire to run cemetery boards. Most people never even visit their loved one’s grave, anyway.

    • Judy G. Russell says:

      Please stop and think. Many tombstones are simultaneously engraved with personal info of husband and wife, but one is still alive. Think maybe he or she wouldn’t want those personal details online yet? I don’t have a problem understanding that. Or maybe the death is particularly painful for the family and they’re not ready to share the info. I can understand that too. When it comes to the trials of private living people, we need to do a lot more than assume we know how they feel — we need to find out, or not share their info online.

  36. Christos Christou says:

    I found this article very interesting and even all the responses. As a person who loves to take pictures of tombstones and post them and offer them freely to anyone, I am very supportive of using discretion. I have in all my 25 years of research only encountered a few examples of problems. The Findagrave site is great but there are people on their that won’t transfer your family member memorial to you since they say they don’t want you to control it since they created it first. Doesn’t make sense to me and infuriates me that it was OK for them to control it. It is like they are trying to control all the dead people. They won’t know or post as much information on the memorials as a family member would so give it up. I want to go find all their ancestors and control their memorials just for spite. And I have had two cemeteries that would not let me go onto the property to visit my ancestors because one said it was their harvest season and it was in the middle of their fields so I waited and have been back several times since and another said because other people have been there and damaged their stones. I explained I would not do that and would come by during a convenient time which I did and they were not there so I visited the graves and took pictures and left them a note. However by and far 99% are happy to open their records, assist you with research and I always leave a tip for helping even if they say no need to. I think it is just courteous. I tell them put it into their restoration fund, enjoy a nice lunch on me, etc. It leaves a good taste for the next researcher who comes by and they help. Pay it forward! What I find is that people are pretty reasonable and if they are not it was because they encountered past rude people and they assume you are too so being nice and leaving a good path behind you will help the next person too.

    In regard to the person who hates that you post too much information on the memorial that is their opinion and they may be sensitive. You can’t please everyone. I post a lot of information on all my memorials because I want it disseminated but I had a young person in my family die untimely and I still find it hard to post anything about him because the pain is still there. At some future date I might be OK with it but right now I am very sensitive about it. For some even though the person died years ago, the memories flood back and can be very painful to discuss.

    My only comment is if it is not your relative, be very sensitive to the family member who asks for you to transfer a memorial to them or not to post it. That one transfer or picture being given to them can make all these situations go away. You can always find another one to “own”.

    • Judy G. Russell says:

      You make some excellent points here, two of which need to be emphasized: (1) be nice to the cemetery folks!! and (2) be sensitive to the private struggles and pains of others.

  37. Laurie says:

    Just a warning to those who contact a cemetery seeking permission to film their ancestor’s graves. After many years I finally located the graves of my great great grand mother and her sons. I sent in a request to film the site and enclosed a stamped, self addressed envelope for the response. Not only did they turn down my request, they sent me a bill for $1800 to cover the back upkeep charges!

    • Judy G. Russell says:

      An unfortunate situation for sure, but one where — unless the laws are very weird where you are — you bear absolutely no legal responsibility for that back upkeep.

  38. Kristy Gravlin says:

    A Comment on Those Mean and Crabby Farmers who Will Not Allow You Access… As in most situations, the problem has much to do with one side not understanding the needs of the other side. As a farmer, I know that “city folk” have little understanding about gates and crops. I was taught as a very young child: “If you go through a gate, you leave it the same way you found it. It was that way for a reason.” If the gate is closed tightly, it is most likely to keep livestock inside the field. If you leave it open “just till you have time to get to the cemetery and take a picture or several” the cows/pigs/sheep will be out and down the road. It would be like leaving the doors unlocked where you work. The supplies to make things/or sell things that have all been the livelihood of all the employees would be gone. Those cows are the farmer’s income for the year. He will be pretty protective of them. Crops are a similar situation. Yes it would be shorter for you to go ‘cross country’ diagonally through the field, but you will ruin the grain wherever you pass. And the farmer was planing to support his family with the proceeds from that grain. Fences are where they are to protect his crops from his animals…or to protect “your” cemetery from his animals. In general most farmers are not anti-cemetery viewers…they just have been “misused” by too many who don’t understand farm rules. I might suggest that when you are asking permission, show your mature side, mention that you know the rules about changing or damaging gates, crops, and fences as well as not damaging the cemetery. And that you know you have to be watchful for snakes, and other small animals who live in or near the cemetery and may see you as a danger. The hordes of mosquitoes are on their own…and on you too. 8-)

  39. evilClive says:

    Hi Judy G Russell,

    I did not read all 111+ comments. Or possibly another article that already addressed what is about to follow. If it is here somewhere, and I missed it, Sorry.

    I did read one of your articles on obituary copyright laws awhile back. And as I recall, you mentioned a “spark of creativity”.

    While photo “volunteers” for Find A Grave are performing an invaluable service, in providing, proof of burial, by photo. And they should be commended and highly appreciated. And gratefully given credit where credit id due. Some of them detract, from what would be, their act of selflessness. By not allowing any other use, anywhere, whatsoever.. And claiming their own exclusive “copyrighted” material. When it is your Grandparents headtones they photographed, via a “photo request” they fulfilled, as a “volunteer”. And as an heir. You literally own the plots and stones. With possession of the titles. And all.

    At least one of these so-called”Volunteers” offers to sell you his [copy]rights. I can see that if you made an agreement beforehand.

    Some give permission in advanced for use in/at “not for profit” sites, only. (Do they realize they have already posted their pics at a “for profit” site?)

    Does the same “Spark of Creativity” apply to photos, as it applies to non-creative words in obituaries of a certain age?

    It seems to me, a picture of a headstone is not that unique. In that, it is going to turn out pretty much the same, regardless of who takes it. Hence the loss of any creative value.

    If someone assumes the title of “volunteer” aren’t they in fact volunteering?

    Thank you,
    Clive

    • Judy G. Russell says:

      First off, let me take this opportunity to repeat what I’ve had to say a number of times in this thread: this isn’t a place to fight out battles over Find a Grave policies.

      As to copyright, almost any photograph is going to have the necessary creative spark to qualify for copyright. The choice of angle, lighting and the like can be enough. But when all is said and done, my personal view is that any photo I take as a volunteer for Find A Grave or the old Random Acts of Genealogical Kindness or the like is open for anyone to use without concern for my copyright. I do want credit for my work — but I’m sure as the dickens never going to sue for copyright violation on a photo I took as a volunteer.

    • Missy says:

      Clive, I also find it rediculous for others to claim “copyright” over their headstone photos like they are something special when 1) They may not even take good pictures, and 2) Any Tom Dick and Harry can go out get the same photo…maybe even a better for you. I’m a volunteer too and love taking photos for others. I even have in my bio that I’m available for a non-copyrighted photo if they need one. If you run across it again, just email someone else asking if they wouldn’t mind putting another copy online that “isn’t” copyrighted.

      Judy, Love your articles. You provide very useful information. FYI: Go gettum’ this weekend on your walk in San Antonio. I supported you with a donation, hope you win something. I live here in Orange, Texas, it’s soooooo hot and humid. Carry plenty of water on you. You’re going to need it! Good luck and have fun!

  40. evilClive says:

    Dear Judy,

    Sorry… battling the polices of Find A Grave was clearly not my intent. I do not even know what they are. Nor do I care. I carefully pick the material I read with my eyes that are afflicted with the disease called macular degeneration. Rules and Regulations are not on my carefully picked list of reading materials. (I am not like Sarah Palin, who reads everything! But she is a cousin of mine.). Which I can’t read anything smaller than size 24 point font. So I have to copy and paste everything to my notepad. I can’t even see a fly that lands on my own arm. I am thinking about trying to learn how to read braille. And honing the capibilities of my peripheral vision. I was speaking from a purely hypothetical standpoint. Based on thibgs I have heard. I made stuff up. Sorry it sounded like a real battle.

    My main emphasis/focus was regarding the “Spark of Creativity” question.

    Thank you for answering my question.

    Again, Thanks,
    Clive

    • Judy G. Russell says:

      Didn’t want to pick on you in particular — just reminding folks. Hope the explanation made things clearer for you.

      • evilClive says:

        Dear Judy,

        Save for a time stamp, or, lighting/shadows, or, a specific object placed in the shot, to signify its uniqueness.
        And… there is more than one shot of the same targeted object, taken by multiple photographers.

        How can anyone be sure whose is whose?

        Say for instance, one of those, hypothetical, not so selfless, volunteers, (for/at any unspecified site) who. demands credit, but will not give permissions. Which is kind of ironic, in and of itself, How can you give credit for/to something you’re not granted permission to use?

        So you honor their wises. And their work is only used where they posted it.

        Further on down the road. You take yourself a little genealogical vacation and take your own pictures of the same stones. In the same light. In what cannot be distinguished as. the same shadows. And the pictures are so close to identical. You can’t tell them apart.

        But now, yours are yours. And you can post them where ever you want. And you do!

        But now, old stingy pants unwavering copyright coot. Thinks your pictures are hers/his. And decided to sue you for copyright infringement/violation.

        What then?

        Thank you,
        Clive

        P.S. here is my creative spark. Since I can’t actually watch TV, and see it. Whenever I am listening to one of those infomercials on TV. Where the announcer keeps on saying “BUT WAIT!” I always hear “BUTT WEIGHT!”

        It is especially entertaining to me, when they’re trying to sell an exercise, and or, a weight loss program.

        • Judy G. Russell says:

          The likelihood of getting sued in the situation you suggest is very small. The filing fee alone is high (more than $300 just to walk in the courthouse door). So it’s not a serious risk.

  41. Arizona Gravewalker says:

    I did not see anyone specifically addressing corporately owned property that is open to the public. One local cemetery will look you right in the eye and treat you like a terrorist. I do not mine walking up and down rows and doing my own exploring. I don’t mind waiting for a grieving family or preliminary sale is going on. They don’t want nonincome generating people on the property. Two other cemeteries have interactive look ups, maps in the office and don’t treat you like a vandal.

    My question is this. As long as I am respectful and taking care to not disturb property or people how can I take pics and not get the opportunity to get fined or even jailed if they decide to escalate the matter?

    A quick call to the police department ended with the suggestion that if one never sets foot on the property one never has to worry. ID theft is not an issue. The first thing banks check is the SSDI! This is so far away family members can have a pic of the marker of their ancestor.

  42. John W. Pegg says:

    Hi, I have encountered this problem for the first time too in Northwest Indiana.
    I seen a sign that says no photographs allowed. The cemetery has changed hands and so that is the beginning of the problem because I took pictures there before without a problem. They won’t even give me information from the office.
    I asked them where my great aunt is buried and they denied she was buried there.
    I forgot where she was buried in the cemetery but they would not help. I want to get a picture of her tombstone. I do have proof she is buried there. I have a copy of her obituary. How do I get around this roadblock? Thanks.

    • Judy G. Russell says:

      There is no law that I’m aware of in Indiana that will get you into a cemetery to take pictures where the rules say you can’t take pictures. Your best bet is to find our the name of the company or board or whatever that owns the cemetery and go directly to the top for permission. And if they say no, well, the law lets them say no.

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