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No, we can’t use it like that. Really.

There was yet another of Those Conversations on Facebook yesterday.

An individual had tried to upload a photograph to FamilySearch, and it had been bounced.

The information in the lower right corner — enlarged and enhanced by The Legal Genealogist below — made it abundantly clear why it had been bounced.

BillionGraves

It wasn’t the uploader’s picture. It had been swiped from the BillionGraves website.

And so, the conversation proceeded, what the uploader needed to do was crop out the BillionGraves information and reupload. Or grab any image of the gravestone from FindAGrave and upload that instead.

Sigh…

No.

Just no.

What part of no do these folks not understand?

People, seriously, if it’s not our photograph and we don’t have permission, we can’t grab it and put it on another website.

First off, we’d likely be violating the copyright of the photographer.1

Second, we’d likely be violating the terms of use of the website where we found the photograph.2

And, third, we’d definitely be violating the terms of use of FamilySearch.3

Let’s take these one by one.

Copyright is legal protection given to the creator of an original work, like the person who takes the time to go out and carefully craft a good photo of a tombstone. Copyright law gives the photographer the exclusive right to say what copies can be made of that photo and what can be done with them for a very long time — the life of the photographer plus 70 years. For anyone else to use a copy of that photo, we need the photographer’s permission.4

In some cases, a photographer contributing to a site like BillionGraves or FindAGrave will make permission clear, by stating something like “You may use any photo I post for your personal research” or “You can use my photos but must give me and this website credit.” If we don’t see that, then we have to ask permission.

We can’t simply crop out the copyright statement and use the image anyway. That sort of action proves we knew there was a copyright and deliberately disregarded it — and that opens us up to what’s called statutory damages: a legal penalty of up to $150,000 under the federal copyright statute.5

Terms of use — or terms and conditions — 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.6

Every website worth its salt has terms of use. Those terms set out what we’re allowed to do with the content on that website, and what our obligations are if we contribute content to that website. You’ll find these terms at every significant genealogical website: at Ancestry.com, at MyHeritage.com, at FindMyPast.com, and — yes — at BillionGraves.com and at FindAGrave.com which — as an Ancestry property — is governed by Ancestry’s terms.

Most sites allow some personal use of the content. Most limit or prohibit commercial use. And none of them wants its content downloaded piece by piece and reuploaded to another website. We need to carefully read the terms, and stay within them.

As for FamilySearch.org, yes, it too has terms of use and, when it comes to uploaded materials, its terms of use couldn’t be clearer:

You represent and warrant that you will not submit anything to this site that violates any third party’s rights (including, but not limited to, copyrights, privacy rights, publicity rights, contract rights, or other proprietary rights). Whenever you submit Contributed Content to this site, you are affirming that you have the legal right to submit that Contributed Content to us … You accept legal responsibility for our use of any Contributed Content you submit. You are solely responsible for all Contributed Content that you submit, post, or otherwise contribute to this site or to any other FamilySearch affiliated site.7

I repeat: if it’s not our photograph and we don’t have permission, we can’t grab it and put it on another website.

Really.


Cite/link to this post: Judy G. Russell, “About that swiped photograph…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 30 April 2021).

SOURCES

  1. See generally U.S. Copyright Office, “Circular 1: Copyright Basics”, PDF (https://www.copyright.gov/ : accessed 30 Apr 2021).
  2. See, e.g., “BillionGraves.com Terms of Use,” BillionGraves (https://billiongraves.com/ : accessed 30 Apr 2021).
  3. FamilySearch Terms of Use (Updated 2019-12-10),” FamilySearch.org (https://www.familysearch.org/ : accessed 30 Apr 2021).
  4. See generally U.S. Copyright Office, “Circular 1: Copyright Basics”.
  5. See “Remedies for infringement: Damages and profits,” 17 U.S.C. §504(c).
  6. See generally Judy G. Russell, “Reprise: a terms of use primer,” The Legal Genealogist, posted 29 Apr 2015 (https://www.legalgenealogist.com/blog : accessed 30 Apr 2021).
  7. FamilySearch Terms of Use (Updated 2019-12-10),” FamilySearch.org (https://www.familysearch.org/ : accessed 30 Apr 2021).
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