Find A Grave terms 2014 style

Next in an occasional series on terms of use

So… once more into the breach, dear friends.

This is the fourth time The Legal Genealogist has visited the terms of use area of Find A Grave, the huge and hugely-popular website with burial information and photos so widely used by genealogists.1

FAG.TOS2Why? Because the terms of use have changed again here in 2014, and despite an effort to clear up any questions it’s clear that folks still have questions about the Find A Grave terms of use.

Terms of use, remember, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.”2

And in the case of Find A Grave, it’s these terms of use that govern not just what we as part of the general web-using public can do with all the content — the words and photos and more — that Find A Grave members upload to the site but also what rights Find A Grave has to that content created or contributed by members.

The easy part is Find A Grave’s rights.

When you take a tombstone photo and upload it to Find A Grave, you’re not giving up your ownership of the image or of your copyright (if any) in the image. What you’re giving Find A Grave is “a non-exclusive, transferable, sublicensable, royalty-free, world-wide license for the maximum amount of time permitted by applicable law to host, store, copy, publish, distribute, provide access to and otherwise use such material, including, hosting and access on co-branded services of that material, and to use the data contained in that material as search results and to integrate that data into the Service or other services as Find A Grave or the Group Companies deem appropriate.”3

Let’s break that down.

• A license is a fancy legal word for permission.

Non-exclusive means you can use your images or content elsewhere for your own purposes; your permission isn’t limited to Find A Grave so it doesn’t mean Find A Grave is the only place the photos and content can be used.

• The fact that it’s transferable and sublicensable means that Find A Grave, and its owners at Ancestry.com, can sell the service or give it to somebody else or give permission to someone else to use all of parts of the content. In other words, you’re giving them permission to give permission to someone else.

Royalty-free means they’re not going to pay you. Ever.

And all the other terms in that paragraph let Find A Grave work together with Ancestry and the whole Ancestry family of companies to use the information throughout Ancestry. And, of course, the rest of the terms of use require that we only upload materials we have the right to upload: we can’t violate someone else’s copyright by uploading photos or text we didn’t take or write (unless we have permission to upload).

There’s been no change in Find A Grave’s promise to keep its content free; the FAQs still read that its “stated goal has always been to remain a free site for everyone. We have no plans on changing that. Additionally, we claim no copyright or ‘ownership’ of any photos that are posted to Find A Grave. They remain your property. If we were to turn evil and start charging people to view YOUR photos against your wishes, you would have every legal right to demand that we remove them. But we’re not planning on turning evil, so it shouldn’t be an issue.”4

But Find A Grave does claim what’s called a compilation copyright, and it does limit what people can do with content, and that’s what seems to have folks confused.

Here’s what the terms of use say:

You may access the Websites only personally with an individual browser or mobile device (bots, crawlers, spiders, scraping and other automatic access tools are prohibited), use graphics, information, data, editorial and any other content displayed on or accessible through the Websites (“Content”) only for personal research or scholarly historical research, and download Content only as search results relevant to that research. For example, the download of the whole or material parts of any work or database is prohibited. Resale of a work or database or portion thereof is prohibited. Online or other republication of Content is prohibited except as unique data elements that are part of a unique family history or genealogy. Violation of this limited use license may result in immediate termination of your membership and may result in legal action against you. You may use the software provided on the Service only while online and may not download, copy, reuse or distribute that software. Find A Grave and its licensors retain title, ownership and all other rights and interests in and to all Content, except as expressly set forth in these Terms. This limited license is non-exclusive, not transferable, revocable at all times, royalty-free, global, and limited to the term, purpose and content of this Terms and Conditions. The Websites are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws.5

Okay. Let’s break that down too.

The first three sentences are aimed at copycats and content scrapers. They’re there to make it crystal clear that you can’t go to Find A Grave with an automated system, download everything that’s there, and package it up and put it on your own website or sell it. You can’t grab a whole cemetery database and copy it. You can’t grab all the entries from a county or a state.

So what does the next sentence mean? “Online or other republication of Content is prohibited except as unique data elements that are part of a unique family history or genealogy.”

It means we can go right ahead and use the information that’s on the website — consistent with any individual copyrights in the images or text — as long as we’re using it for our own personal research or as part of a broader scholarly research project (including work done for a client) and we use it in the context of that research.

Let’s look at two examples.

Say I want to use information from Find A Grave as part of writing the history of my Battles family from Cherokee County, Alabama. There are 32 members of the Battles family whose burial information in Cherokee County is recorded at Find A Grave. Can I abstract that information and use it to help in a proof argument about someone being (or not being) a member of my Battles family? Yes. That’s well within the limits suggested by the license paragraph. And, as long as I don’t violate a contributor’s copyright, I can republish any of that information in a blog post or magazine article or book.

But now let’s say I want to publish a cemetery listing of everyone buried in Cherokee County. There are 158 cemeteries from that one county included in the database. Can I download and copy all that data? No. It has nothing to do with my own unique family history, with my own genealogy. I’m not doing research; I’m just copying.

One more example: now let’s say I want to do a family history of the Battles Family of Alabama. There are 510 entries in the Find A Grave database today of people with the surname Battles who were buried in Alabama.

If all I’m going to do in my family history is copy and paste data from Find A Grave into my history, I’m sailing awfully close to the edge. But if I were assembling the data to show, say, how many Battles men and women were buried in what counties, or how many children in the family died before the age of 5, or how many of the Battles men fought on which side of which wars, it’d be just fine. Those are all “unique data elements that are part of a unique family history or genealogy.”

Bottom line: When we provide content, we need to avoid violating anyone else’s copyright and understand that we’re giving Find A Grave permission to use what we upload. When we use Find A Grave content, we need to again avoid violating anyone else’s copyright and understand that we’ve agreed to use it only in our research projects.


SOURCES

  1. See Judy G. Russell, “Grave terms of use,” The Legal Genealogist, posted 20 June 2012 (http://www.legalgenealogist.com/blog : accessed 19 Aug 2014). See also ibid., “Find A Grave revisited,” The Legal Genealogist, posted 16 Sep 2013. Also, ibid., “The Find A Grave sale,” The Legal Genealogist, posted 4 Oct 2013.
  2. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 19 Aug 2014).
  3. “User Provided Content,” Find A Grave Terms of Service, 23 May 2014, Find A Grave (http://www.findagrave.com/ : accessed 19 Aug 2014).
  4. Submitting Information / Creating Memorials,” FAQ 71, Frequently Asked Questions, Find A Grave (http://www.findagrave.com : accessed 19 Aug 2014).
  5. “Limited Use License,” Find A Grave Terms of Service, 23 May 2014, Find A Grave (http://www.findagrave.com/ : accessed 19 Aug 2014).
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29 Responses to Find A Grave terms 2014 style

  1. Thank you for posting this series on TOS/TOU — it is so tempting to just scroll to the bottom and click the “I agree” button (or to just ignore notices about updates), but this kind of thing is actually important and I wish more people (self incl.) took the time to care about it! But the legalese and giant walls of text can be so intimidating.

  2. Judy,

    You are AWESOME.

    Thank you,

    Russ

  3. Peg Ivanyo says:

    So, are the photographs considered to be “content” or just the “data”?

    • Judy G. Russell says:

      Photographs would definitely be included as content. So there are two issues for every photograph: (1) any copyright of the person who actually took the photograph (the fact that the person has uploaded it only gives Find A Grave a license to display it; it doesn’t give others a license to re-publish it); and (2) the terms of the license from Find A Grave (limited to personal or professional use as a unique data element in genealogy research).

  4. Jackie says:

    But now let’s say I want to publish a cemetery listing of everyone buried in Cherokee County. There are 158 cemeteries from that one county included in the database. Can I download and copy all that data? No. It has nothing to do with my own unique family history, with my own genealogy. I’m not doing research; I’m just copying.

    I want to make sure I understand this… Find A Grave has always allowed users to create memorials from other compilations (books, websites, etc.) because facts are not protected by copyright. Now Find A Grave is saying the opposite “You can’t take stuff from our site (which may have come from another site/book) and publish it yourself”? Please note by “stuff”, I mean only the facts (names, dates, locations, inscriptions) and no original material (biographical sketch or photo).

    • Judy G. Russell says:

      And what would be the justification for doing so? Writing a memorial from a variety of sources for a member of your family or your community seems to me to be a far different thing than taking information from a single website and just flat out copying it for your own use. It’s not a copyright violation, but it sure is unethical — and it violates the “contract” each user has with the website.

      • Jackie says:

        Many of the memorials on FAG were created exactly that way – “taking information from a single website and just flat out copying it”. Entire cemetery transcriptions. People have cried “Foul” about this for years and FAG has justified it as not being a copyright violation. Now FAG wants to cry “Foul” for being treated the same way. What is the justification for that?

        • Judy G. Russell says:

          That’s a question you need to ask Find A Grave. The issue, I repeat, is not one of copyright but one of contract.

          • Jackie says:

            And perhaps a matter of the TOS of the site from which the info was original garnered…

          • Judy G. Russell says:

            That may well be, and should be addressed between that site and the person(s) with whom that site had its contract.

      • Ryan says:

        If it is unethical to copy it from FAG then FAG is also unethical for accepting entries made in a like manner.

  5. Amy says:

    Thanks–this is great. I have been struggling with a copyright question (would have been a good exam question). What is your view on the extent of copyright in the grave photos on FAG? Certainly most photos are considered original enough to be copyrightable. I don’t see much argument there even though the degree of originality seems pretty minimal. So let’s say I copy that grave photo to my blog which is non-commercial, “scholarly,” and arguably “transformative” to the extent it illustrates a fact I am discussing. Fair use or infringing? FAG has no claim under its TOS, as you explain them, but perhaps the photographer who posted it might. Curious about your thoughts.

    • Judy G. Russell says:

      There are two schools of thought here. One is the photographer-as-artist school: my choice of camera angle, lens, lighting and other compositional factors makes every image I create sufficiently original for me to claim copyright in the image. The other is the tombstone-image-as-a-copy school: the photograph is intended to be nothing more than a slavish copy (in the words of the courts) of the original item (namely the tombstone) and therefore isn’t sufficiently original to claim copyright. If the latter is the case, then we don’t have to worry about fair use at all. If the former is the case, then as a matter of courtesy to the photographer (as well as in the interest of keeping my tail out of the copyright wringer) I would (and do) ask permission.

    • Jackie says:

      Amy, the TOS may not address your scenario, but the FAQs certainly do.
      http://www.findagrave.com/cgi-bin/fg.cgi?page=listFaqs#143

      • Amy says:

        Thanks to you both. I agree that there are arguments both ways on the copyrightability of these photos, and I think the FAQ is just FAG’s position, not necessarily the right legal conclusion. (You may recall I taught copyright law.) I think that there probably is at least an argument for these photos being copyrightable, so my question is more the fair use question. If one is not using the photo for anything other than non-commercial, informative purposes, there seems to be a decent argument for fair use. I agree the polite and safe thing to do is to ask permission in any case.

  6. Tina says:

    Knowing how you like to pick things apart, word for word … It should be: “Once more UNTO the breach, dear friends, once more” (Henry V, Act III, Scene I). They were not going INTO the breach in the wall, but going (up)TO it – as is clear from the next line: “Or close the wall up with our English dead”. I’m not a Shakespeare expert, but am English, and was taught that this was the meaning …

  7. Florence Marmor says:

    I do have a problem with Find A Grave. I donated my own database of burials in 3 different cemeteries to JOWBR online. I kept my ownership and have a poor man’s copyright on this database. JOWBR publishes a notice forbidding outright wholesale copying of the materia, I have given permission to one person to publish my data in Find A Grave under his name. I continously find my own data on Find A Grave posted by others. Some have copied it exactly as I have it. They don’t even bother to try to change the wording. One even thanked “Florence Marmor and her group” for this materal. I have written to several of these people and get varied responses from you can’t tell me what to do. You can’t copyright this data as it is public record. I get everything under the stone – mostly very nasty. These people have all posted thousands upon thousands of memorials. It seems that they don’t even to to the bathroom. I am sure they eat at the computer. I have given none of these people permission to publish my data anywhere. I am most happy to transfer anything to anyone who is related to the person memorialized. They come way before me. This data is mine. It has taken me about 30 eyars to put it together. Yes, I used public records to make my compilation. Yes, I used cemetery monuments. Yes, I spoke to families. These things are all true but it was my idea tobether with my partner in this work, the late David Gevertaman, to compile a burial listing of all those buried in Mokom Sholom, Bayside and Acacia Cemeteries in Ozone Park, NY into a database filled with information about these people. I concentrated particularly on those buried in the free burial sections of Mokom Sholom. I do no appreciate my work and research being blatantly taken by these people out for number counts of memorials to appropriate my data. I have written to Find A Grave and they do nothing beyond forwarding my objection to the person responsible. This is unfair. I have spoken to others who have the same complaints. I have spoken to family members who can’t get their relatives back from these memorial crunchers. It is time this practice stopped and Find A Grave stand up for people’s rights. They do very well sticking up for their own.

    Florence Marmor

    • Judy G. Russell says:

      Probably the hardest thing to accept about copyright law is that it simply does not protect facts. You cannot claim a copyright in the fact that person A was born on date B and died on date C and is buried in cemetery D. Those are all, simply, facts. It doesn’t matter how much time it took to collect the facts or assemble the facts; if the only information in the database is an assortment of facts, then the database is not copyrighted. The only time copyright law gets involved is in protecting the way the facts are expressed (“he was a little golden angel, his curls draped around his face”). Not the facts. I know this is hard to understand, but that’s what the law says, and it’s what the courts have held.

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  10. Sarah says:

    I don’t see any comments about the obituaries and life sketches that are posted on Find a Gave, just information about the basic data and pictures of the graves. Would you comment on that – or is the same logic for the data and gravestone the same as for the obituaries ad life sketches?

    • Judy G. Russell says:

      The words that are written as obits or sketches clearly have copyright protection if written today by the person who posts them today. If published earlier, there will be many variables as to (a) who owns the copyright, if anyone and (b) how long the copyright lasts.

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