Things to consider before publishing
Reader Robert is writing a book on his family history that will be self-published. “I seriously doubt if I will sell more than 100 copies – there’s only so many family, friends and neighbors,” he writes. But he has a concern: “Can I include photos of my ancestor’s gravestones in the book? Do I need to ask permission?”
You already know The Legal Genealogist‘s answer, don’t you?
And here are the essentials that it depends on:
• Who took the photo?
• If you didn’t take the photo, how did you get it?
• Is any stone so unique that the sculptor might have retained copyright on the design?
• If so, is the stone recent enough that the copyright might still exist?
• Does any cemetery where a stone is located have rules on photography?
• If it does, did you (or the photographer) comply with those rules?
Now, some of these are copyright rules. And some of them raise other issues, like licensing or property permissions. But they’re all things to consider before publishing.
If Robert took the photos — the way I did for the image above at Fort Rosecrans National Cemetery where my uncle Monte is buried, then there isn’t any copyright issue for the photo. I own the copyright, and I can use it as I wish.
If Robert didn’t take the photos, then he needs to consider copyright. And that begins with figuring out who took the photo — and when. Copyright protection for a photo in the United States today begins the minute an image is captured and lasts for 70 years after the death of the photographer.1
For any photo within that window of protection, Robert will need permission to publish, even for a limited edition book. If he’s looking at images posted to a website documenting gravestones, he’ll need to look first to see whether the photographer has given some type of blanket permission for the image to be reused or republished.
For example, some contributors to Find A Grave state in their profiles that any family member can use any photograph the contributor has taken. Others say that anyone can use any photograph the contributor has taken. Some contributors don’t give any permission in their profiles, and some websites — like BillionGraves — don’t provide any opportunity for contributors to give permission.
Where blanket permission isn’t given, or Robert doesn’t fall within the scope of any permission given, then the photographer’s specific permission must be sought to avoid infringing the photographer’s copyright.
And there are still issues even if Robert took the photos himself or has the needed permissions from the photographer and the website.
There may be some potential copyright issues with some specific gravestones. The problem is that the stone itself can be copyright-protected as a work of art if it has enough unique elements.4 And companies and individuals have sued for copyright infringement when photos have been taken or copies made of their stones.5 If the stone is utterly unique, and recent enough to be protected, it’s probably best to try to track down the owner of the rights and get permission.
And may be some potential issues with the cemetery itself: were there rules on taking photos in the cemetery and, if so, did the photographer comply with the rules? In many cases, the cemetery will be private property and has the right to make rules on what a visitor is and isn’t allowed to do.6 So it’s worth double-checking to be sure the cemetery isn’t going to raise a stink.
In short — it depends… with a long explanation as to what it depends on.
Cite/link to this post: Judy G. Russell, “Permissions and the tombstone photo,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 14 Sep 2020).
- See generally U.S. Copyright Office, “Circular 15a: Duration of Copyright,” PDF, Copyright.gov (https://www.copyright.gov/ : accessed 14 Sep 2020). ↩
- “Without our prior written consent, you may not … link or deep-link to the Site for any purpose.” Ibid. ↩
- See generally “Visual Art Works,” Chapter 900 in U.S. Copyright Office, Compendium of U.S. Copyright Office Practices, Third Edition (Washington DC : US Copyright Office, 2017), PDF, Copyright.gov (https://www.copyright.gov/ : accessed 14 Sep 2020). ↩
- See Falice Chin, “Calgary tombstone company alleges city copied Chinese designs,” posted 5 Nov 2015. CBC.ca (https://www.cbc.ca/news/ : accessed 14 Sep 2020). See also “Of death and copyright: the sum of unhappiness,” posted 4 June 2012, The IPKat blog (http://ipkitten.blogspot.com/ : accessed 14 Sep 2020). ↩
- See Judy G. Russell, “Revisiting the issue: photos in cemeteries,” The Legal Genealogist, posted 11 Aug 2017 (https://www.legalgenealogist.com/blog : accessed 14 Sep 2020). ↩