When the law (or rule) steps in
The issue has just come up again in Canada: the idea that there should be advance permission required before photographs are allowed in cemeteries.
This time, it’s the City of Waterloo, Ontario, and it’s just adopted a bylaw that states: “No person shall cause or permit the taking of any photographic or video imaging within any Cemetery except with the prior permission of the Manager.”1
Cemetery services manager Bryce Crouse said it wasn’t intended to stop people from photographing headstones, as genealogists do for Find A Grave or Billion Graves, but rather to keep people from “inappropriate” behavior in cemeteries.2
This isn’t the first time the genealogical community, in Canada or elsewhere, has come up against restrictions on cemetery photography. The first time a reader asked about this, it was almost five years ago, when Timothy Campbell — another Canadian — reported he’d had some issues.
Tim, in Elmira, Ontario, and a cousin of his in Grand Rapids, Michigan, had encountered some problems in taking gravestone photographs in both Canada and the United States. “As an active genealogist I have taken part in transcribing and photographing headstones in cemeteries,” Tim wrote. “I was recently told that I could not photograph headstones in our municipal cemetery without permission from the municipality. … The same scenario happened to my cousin in Grand Rapids, Michigan…”3
Tim’s question then, and the question today, is this: what kind of law lets a governing body get involved in setting rules for cemetery photography?
So let’s revisit the answer from 2012 — because it hasn’t changed one bit.
Permission required?
Now it may seem strange to think of cemeteries as property, particularly when they’re owned by a governmental entity, but any landowner — public or private — has certain rights to control what happens on that land. Even when the land is publicly owned and dedicated to a public purpose, such as a park, the landowner is absolutely entitled to impose time, place and manner restrictions as to what can and can’t be done on the land.
In both the United States and Canada, property laws — and particularly laws regulating cemeteries — are local laws. In the United States, it’s commonly a matter of state law, and state laws may well delegate decision making authority to municipalities or counties.
In Canada, it’s commonly a matter of provincial law, and in Ontario, for example, individual cemeteries are permitted to adopt by-laws that restrict access and other activities in cemeteries.4
And the same is true under Michigan law: state law specifically allows any cemetery corporation operating in Michigan “to make all needful by-laws, rules, and regulations, not inconsistent with this act, that may be necessary to the proper management” of the cemetery corporation.5
So what’s important to remember here is that every cemetery — even a public cemetery — has the right to set its own rules and those rules will be upheld by the courts as long as they’re reasonable. If you don’t obey the rules, you can be asked to leave and charged with trespassing if you refuse.
What does that mean for photography in cemeteries? The fact is that restrictions on photography in cemeteries are extremely common. They don’t usually tend to be very onerous — often, it’s nothing more than a limit on the type of equipment used or on taking photos of funerals or persons mourning without permission. For example, at Arlington National Cemetery just outside of Washington, D.C.:
Photography is permitted within the grounds of Arlington National Cemetery. Public use of a tripod or lights is not permitted without permission from the Office of Public Affairs. …
We ask media and cemetery visitors/tourists seeking to photograph those visiting gravesites to respect the solemnity of Arlington National Cemetery by refraining from taking pictures or filming someone who is visibly mourning and asking for permission to film or photograph those visiting a gravesite. Many are very open to talking with media and cemetery visitors about their loved ones and want to see their loved ones honored and remembered.6
At the historic Green-Wood Cemetery in Brooklyn, New York:
We welcome and encourage you to take photos of Green-Wood. …
Professional photography (intended for publication or commercial use) is permitted only with the written consent of The Green-Wood Cemetery. The use of movie cameras, video and live models is strictly prohibited.
Please note that Green-Wood is an active and working cemetery. Please be respectful of funeral services and those visiting loved ones.7
At the Glenwood Cemetery in Houston, Texas:
Photography for private (not commercial) use is permitted so long as it does not interfere with the quiet enjoyment of the cemetery by other visitors. Photography in available light is preferred, although flash cameras may be used. External light sources not integral to the camera may not be used. Photography of burials is permitted only with the express permission of the person authorizing the burial, and such permission should be made known to the Glenwood office in advance of the burial. Photography for commercial use is prohibited, except with the written permission of the Executive Director. Requests should be submitted to the Glenwood office.8
Occasionally, advance permission and payment of a fee is required. At Brookwood Cemetery in Woking, Surrey, England, an entire page of the cemetery website used to be devoted to its photography policy (in effect since 1854), and the reasons for it including the justification for a fee charged for a permit to take photographs.9
The cemetery explained that:
All visitors are reminded that Brookwood Cemetery is a privately owned and managed burial ground, and it is a courtesy to seek permission to explore the grounds. Over the years this has rarely happened, and with the increasing use of the grounds as a “free” photographic resource, rather than a burial ground, Brookwood Park Ltd has introduced following procedures for any photography in the cemetery. …
We would like to clarify our reasons for having these restrictions in place:
1. Cemetery staff have to deal with complaints from families who are shocked to discover photographs of their family graves posted on the internet (and sometimes posted for sale).
2. It is bereaved families who have raised this as an issue with the cemetery management. We have a duty of care to those with loved ones buried at Brookwood. …
6. It is a courtesy to ask permission to take photographs when entering private property. Most photographers don’t bother and don’t feel they have any obligation to do so…. On behalf of grave owners, we disagree.
7. The cemetery has had restrictions on photography since its opening in 1854. The change in recent years has been that we have made these restrictions more explicit, in response to complaints from grave owners at Brookwood.10
Today, the cemetery simply says, in its rules and regulations, that “In the interests of all visitors and staff, we will not permit anyone to: …undertake filming or photography without prior authorisation from the Cemetery Manager.”11
Now not every cemetery has restrictions on photography. Many small cemeteries don’t have those kinds of rules; many smaller cemeteries and cemeteries that no longer accept burials don’t even have an active management to contact to ask for permission. I certainly wouldn’t hesitate to take a photograph in a cemetery where there was no office and no staff on site to ask.
But the standard suggestion for photography in any cemetery is good advice regardless: get the rules of the road in advance — know if you need permission, whether there’s a fee, and what the hours are so you don’t accidentally get locked inside the gates.12
SOURCES
- See Johanna Weidner, “Plan to curb photography in Waterloo cemeteries worries genealogists,” The Record.com, posted 9 Aug 2017 (https://www.therecord.com/ : accessed 11 Aug 2017). ↩
- Ibid. ↩
- See Judy G. Russell, “Cemetery photos: permission required?,” The Legal Genealogist, posted 22 Oct 2012 (https://www.legalgenealogist.com/blog : accessed 11 Aug 2017). ↩
- See “Funeral, Burial and Cremation Services Act,” S.O. 2002, Chapter 33, currency date: 5 Dec 2016, Ontario eLaws (https://www.ontario.ca/laws : accessed 11 Aug 2017). ↩
- “By-laws, rules and regulations,” Cemetery Regulation Act, 456.15, Michigan Legislative Website (http://www.legislature.mi.gov/ : accessed 11 Aug 2017). ↩
- “Information for Photographers,” Arlington National Cemetery (http://www.arlingtoncemetery.mil : accessed 11 Aug 2017). ↩
- “Visiting Green-Wood: Photography,” Green-Wood Cemetery (http://www.green-wood.com : accessed 11 Aug 2017). ↩
- “While at Glenwood,” Glenwood Cemetery (http://www.glenwoodcemetery.org : accessed 11 Aug 2017). ↩
- See “Photography in Brookwood Cemetery,” Brookwood Cemetery via Wayback Machine (https://web.archive.org/web/ : accessed 11 Aug 2017). ↩
- Ibid. ↩
- “Brookwood Cemetery Rules and Regulations: Conduct,” Brookwood Cemetery (http://www.brookwoodcemetery.com : accessed 11 Aug 2017). ↩
- See e.g. Ed Snyder, “11 Tips for Taking Pictures in a Cemetery,” Stone Angels, posted 16 Dec 2005 (http://www.stoneangels.net : accessed 11 Aug 2017). ↩
So, when I have in my possession a deed for the burial plot in a cemetery, whose property is it legally, once paid for? Does the use of word “deed” carry any legal weight regarding who really owns the dirt? Just curious. Thanks!
You already know what my answer is gonna be: it depends. First off, the deed may transfer fee simple ownership or it may only transfer the right to be interred there. Second, no matter what the deed transfers, it may come with rules and regulations from the cemetery as a whole.
Thank you – I didn’t think of the fact that the deed might transfer different forms of rights or ownership, but that makes sense. Now I have to go find those documents and see what they really say!
But the cemetery doesn’t pay for the gravestone (if there is one), the family does. I know, it depends…but it doesn’t seem fair that I couldn’t take a photo of a gravestone I paid for and had placed on a family member’s burial site.
It’s inconceivable to me that the cemetery would not allow you to take that photo. It might, however, not allow me to do do so.
Thank you for this article. A week ago I asked a cemetery owner I know about having the cemetery burial cards digitized. The response was that the cemetery is private property and they respect that not all families with loved ones in the cemetery want their information on the internet. I was told of the issues they have been having with trespassing photographers who refuse to ask permission and become irate. There is also the concern with subsidence and injury liability. I love findagrave as much as the next person but obeying the laws and by-laws and having respect for others and privacy is primary. Other legal documents genealogists may want to access and memorize are state/province and local cemetery laws. Some may not realize that in some states every so many years the cemetery has to make a good faith attempt at contacting the last known deed holder. If there is no response then any remaining plots go back to the cemetery and can be reused/sold.
Again, thank you for this article.
Good points, Sara. Thanks for commenting.
Having served a number of years on the committee supervising a church graveyard which had been placed on the National Register of Historic Places, I can share with you some of the issues that face cemetery owners, both public and private. We dealt with drug users, drunk individuals, irresponsible dog owners on an almost daily basis. We finally had to post hours that the graveyard was open, prohibit people walking their dogs, and meet with the police to address the drug and alcohol situation. We ultimately signed an “Authorization for Police to Act as Agent” form so they could arrest anyone found trespassing after hours or violating the law on the grounds.
Finding drug paraphernalia and empty beer cans and liquor bottles strewn over the graves of loved ones was extremely upsetting to families.
I am not opposed to respectful taking of photos in a cemetery; I’ve taken many of my family members over the years, but I also understand the issues facing those who own and maintain cemeteries.
Not to mention all the cases we read about where the stones themselves have been damaged or destroyed… sometimes by those trying to take photos…
Thank you for remembering my question from five years ago. How ironic that this issue has come up again and in the same county I live in (Elmira is just north of the city of Waterloo). One item mentioned in our local media was that this new bylaw is meant to control “for profit” uses of photos (the same issue I dealt with here). Its not about respectful observance: its now about the big genealogy business.
As long as even the for-profit sites allow free access to the photo databases, the photos should be allowed, Tim. But that’s just my opinion, and I don’t vote in Ontario! 🙂
I think that’s the issue. There have been sites that slurped content from free sites and locked it behind subscription based walls. I’ve photographed whole cemeteries for Canada GenWeb (all volunteer; all free) and then been asked by companies to GIVE my photos to them, claiming that if I’ve given them to a free site then I should be compelled to give them to whoever for free. I don’t know if any of the sites or companies I knew about previously are still online, but there are also concerns about companies like Ancestry buying up the free sites too. As the recent article noted, some people are just upset with finding photos of loved ones headstones online.
Find a grave is now owned by ancestry A for-profit company
How about copyright on headstone inscription. Should be owned by person that paid for funeral. Not the cemetery boards to give away.
The only information on a headstone is pure fact and facts cannot be copyrighted.
Not necessarily. I raised this issue a few years ago when you spoke at NCGS in Raleigh. Suppose I compose a poem or other tribute and have that original text inscribed on a loved one’s grave marker. The dates of birth, death, etc., are indeed pure fact, but the original composition is not. I think that example may be pertinent to Peter’s comment.
[Edited] I’d like to add another perspective, if I may. I agree that cemeteries and the privacy of families whose loved ones are buried in them should be treated with respect. But I hope that in the effort to keep that in mind, as well as the property rights of privately held cemeteries, that the public service provided by people who document the stones and the people buried is not disregarded. I have an example that shows how important this work can be. I have many forebears who are buried in a fairly large cemetery here in Vermont that began in the mid-1700s and is still in use. I am deeply grateful to the people who, early in the 1900s, made a thorough inventory of the gravestones, and carefully notated their location, as well as making transcriptions of the engravings. A later inventory in the 1980 demonstrated by their absence how many stones had been damaged in the intervening decades. Somewhat later, someone methodically photographed the stones in the entire cemetery, and posted the photos on FindAGrave. I am immensely grateful to the people who did that, because it is the ONLY evidence of nearly all the stones in half the cemetery– the “old cemetery”. Not long after the photographs were taken, an ill-advised “cleaning” destroyed the engravings, rendering most of them unreadable. I wandered among the stones in a numb shock. Had those folks not done the work of recording, transcribing, photographing, and posting, I would not have been able to know where several generations of this line of my ancesters were buried. Those stones told a tragic story of a late 18th/early 19th century family that nearly died out, and are all buried together in that one cemetery. I am thankful that there is evidence of their story. Of that entire family, including cousins, only one had living children. He migrated west, ultimately had many children, and was my second great-grandfather.
We are all immensely grateful to those who’ve taken the time, effort and expense to record critically important genealogical information.
Thank you Judy, for clarifying the legal aspects in this case but, for me, the issue here is not so much about legal rights as it is about administrative overreaching.
Certainly the (public) land owner should be exercising constraints of what activities may, and what may not be, taking place in the cemetery simply to maintain the normally expected behaviour and activities of those using / enjoying the publicly accessible space. In fact the reporting of an interview with a “spokesperson” actually indicated that there was already a bylaws in place to regulate this. The question then is “Why do they need to enact further bylaws and what, specifically, do there new bylaws say/do?”
I went researching this question in the publicly available minutes of the Waterloo Council and eventually found the applicable minute as a single paragraph which simply stated a request for a revision to the City bylaws had been submitted to the Provincial body governing Cemeteries and burying places. There was no record of what was to be added, changed in the existing bylaws and no further information as to where these details might be found.
So (in my mind at least) the question is, Why are ADDITIONAL bylaws needed? If, as the interviewed spokesperson indicated, it is simply to prevent film and television crews causing an inappropriate disturbance in a place which should be treated more sensitively, why cant they reinforce the existing bylaws with a simple notice prominently posted on the grounds?
We all recognize that local authorities in the whole of Ontario are complaining abut being short of funds, so the sudden announcement of a new, and apparently unnecessary, bylaw immediately raises a suspicion that this could just as easily just be another means of increasing the municipalities’ income. Or to put it another way, just an excuse to implement another tax.
There are all sorts of issues raised here in addition to what the established law says. The “problem” would not exist without the enormous increase in the ease with which a photograph can be taking and the fact that, for many people, taking a photograph has replacing making “field notes,” )which has been a quite acceptable practice in the past.) And then there is the explosion in public communications allowed by the invention of the Internet giving rise to a whole new type of “publication”.
The list goes on and on and is something we should expect in an alive and growing society. We do, however, need to be on-guard against manipulation of this growth by “special interests” and for me THIS is the fundamental issue here.
Your points are well-taken, and as much as the property owner (whoever that is) may have the legal authority to set rules and regulations, those rules and regulations need to be reasonable and focused on accomplishing only the things needed. As I’ve noted on more than one occasion in the past, the fact that something is legal doesn’t mean it’s right.
When people are generating income, can ALL the tax men be far behind looking at how to get their respective pieces of the pie. Permits for photographs in cemeteries will not generate just municipal taxes, but I can imagine that the HST and GST will have to be added. I suspect that there may already be hidden taxes on monument makers. Providing the services that are provided in Ontario costs money. Genealogy is now big Loonies and government of all levels will naturally want some of that money. Don’t get me started on Hydro One in cottage country…. .
Malcolm raises an interesting point regarding “public communications” and social media. Green-Wood Cemetery used to have a restrictive photo policy requiring purchase of a permit. Now, as Judy explained above, they “welcome and encourage” photos, which is wonderful. They caught on that publicity and good will can be generated by allowing photography. They encourage the use of the hashtag @historicgreenwood. Thank you Green-Wood Cemetery. And thank you, Judy, for continuing to share the nuances of the law with us.
Thomas MacEntee posted an article on his Abundant Genealogy site: “Are Drones the Next Cemetery Inventory Tool?” where he discusses the use of drones by cemetery staff and by genealogists. He says: “Common sense would dictate that you not fly a drone over a funeral or other ceremony, respecting the privacy of the grieving family.” he says, but sadly, not everyone has sense. The references and resources may be of interest — he links to cases where no-fly zones have been proposed.
Photos, videos to be allowed in Waterloo cemeteries without restrictions (http://www.cbc.ca/news/canada/kitchener-waterloo/waterloo-cemetery-bylaw-photos-videos-ok-1.4266807). Council votes down changes to bylaw that said permission would be needed before taking pictures.
Thank you for the update.
Great news, Tim! Thanks!
Great News!!!! Thanks for posting Tim. It is so nice to find that common sense and reason still exists out there. 🙂