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?”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
- 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). ↩
- “By-laws, rules and regulations,” Cemetery Regulation Act, 456.15, Michigan Legislative Website (http://www.legislature.mi.gov/ : accessed 21 Oct 2012). ↩
- “Information for Photographers,” Arlington National Cemetery (http://www.arlingtoncemetery.mil : accessed 21 Oct 2012). ↩
- “Hours, Directions, and Rules,” Green-Wood Cemetery (http://www.green-wood.com : accessed 21 Oct 2012). ↩
- “While at Glenwood,” Glenwood Cemetery (http://www.glenwoodcemetery.org : accessed 21 Oct 2012). ↩
- “Photography in Brookwood Cemetery,” Brookwood Cemetery (http://www.brookwoodcemetery.com : accessed 21 Oct 2012). ↩
- 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). ↩