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Permission Required for Cemetery Photos?

Article by Scott_J
Published to Family Tree Circles Blog

While it may seem like tombstones are public things that should be free for photographing, that may not always be the case.

Apparently, in some cemeteries, photography is not permitted. It's not an issue so much of the photographs themselves, but of what you're allowed to do on private property...

So what this comes down to is not ownership of the images of tombstones, but the photography activity on private property.

A museum may prohibit photography of artwork that they don't actually own the rights to.
The artist may own the copyrights of that image.

A live performance venue may prohibit video recording of performances.
The band owns the copyright of the performance itself.

I wonder if, from a legal standpoint, there is ever copyright ownership of the actual tombstone image itself? Is it a work of art?

Fascinating subject.

Viewed: 4407 times
by Scott_J Profile | Research | Contact | Subscribe | Block this user
on 2012-10-22 11:02:00

Scott Jangro is the owner of FamilyTreeCircles.com and has documented roots back to Mayflower passengers Stephen Hopkins and William Brewster. If you're wondering what he's doing when he's mysteriously absent, here's some links to other stuff he's responsible for: about.me/jangro.

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Comments

by ngairedith on 2012-10-22 17:59:06

see also What Can You Copy, Legally and Ethically

so, having spent some time researching this issue (because of your posting), some questions arise:

how can 'you' take and copyright a photo of my granfather's grave without my permission and then not allow me to use it OR you will charge me to use it ??

on the other hand, why should you need to obtain my permission to take his headstone photo? I didn't pay for the headstone, I may not have even known my grandfather so what is the REAL issue

why is your photo under copyright? it is hardly a work of art. Some gravestones are definately a work of art, your photo of it isn't. Did you get permission from the Mason or his descendants to take the photo of his work?

I think if an issue ever arose that someone objected to me using a photo they had taken of MY ancestor, I would happily have my day in court. Let's see what would be made of that

by ngairedith on 2012-10-22 18:15:47

it seems some cemeteries charge you to take photos???
images of Brookwood Cemetery

a whole new can of worms that one

by janilye on 2012-10-22 21:18:48

Take heart Aussies, no permission to photograph is required in Australia.
In Australia public cemeteries are administered by local Councils and/or public subscription. Therefore public property. There are no restrictions.
I've taken more than 9,000 photographs of head and footstones all over the country and the only time I have required permission is when the grave is on private or church property. The permission is not to take the photograph but to enter the property. I could charge you to come onto my property and photograph my gumboots at the back door, but I would not own the photo, that would be yours.
I do not own the headstones. I do own the photos and certainly may copyright them if I wished.
Some people who photograph graves, bridges houses or anything else do sometimes copyright their photos; that is their right. Then they require you to ask for permission to use it, or even money, which is fair enough, particularly if you can't run out and snap your own, their photo is much better than yours or it's a little Historical Society trying to make ends meet.
Photographers do not own the subject of their work.
Taking a photograph on public property is the same as taking one of London Bridge or the Opera House - let's arrest all the tourists and crush their Nikons.
That being said we must uphold the laws of copyright even if they do sometimes confound us.

by ngairedith on 2012-10-23 06:02:19

ok, I think we probably all know, and agree, that the taking of headstone photos on private land requires permission, (although I know I would probably argue with them if I was caught taking one of my grandfathers headstone even if it WAS private land). But that's just me :) I would have a problem with being prevented from taking that photo when I have paid for the headstone (say), purchased the ground that the headstone stands on, etc. But I would come unstuck there too, because,
from the site Buying a Grave Space
... The term "buying a grave space" is often used and can be misunderstood. You do not actually own the land itself. The ownership of the cemetery land remains with the Council. What is actually being purchased is the Grant of Exclusive Right of Burial in a grave space for a term of 99 years (interesting, further research on that reveals that after 99 years they can then add any other bodies they want, so long as they fit!)

so let's move on to Scott's comment "I wonder if, from a legal standpoint, there is ever copyright ownership of the actual tombstone image itself? Is it a work of art?"
Well, it seems from the following sites that, legally, a photo IS a work of art and they are copyrighted from the moment you take them BUT, (I'm like a dog with a bone on this), but, THIS PHOTOGRAPHY IS A WORK OF ART (it's a slideshow so wait a sec). Amateur headstone photos should not be allowed under the same umbrella, especially those I've seen with the photographer's reflection and camera flash hiding the inscription :)

from The Basics About Copyright Registration
... Your work is under copyright protection the moment it is created and fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device. The moment you write it, paint it, or put it on the internet, your work is copyright protected
... Your works of art, music, etc, all have copyright protection with or without formal copyright registration with the Library of Congress or any other copyright office. However, copyright registration adds proof of copyright ownership and aids you in fighting copyright infringement. Copyright literally means the right to copy

from the site How to protect your intellectual property
... Intellectual property is something you create thats unique. It can be:
something you invent, like a new product
a products design or appearance
a brand or logo
written work, like content on a website or in a brochure
artistic work, like photography or illustrations
film recordings or musical compositions
computer software
... Protecting your intellectual property allows you to:
stop others using what youve created without your permission
charge others for the right to use what youve created

by Scott_J on 2012-10-23 06:12:11

Photography (even bad photography) can surely be copyrighted.

What I meant by my comment was, might the tombstone itself be owned by the tombstone "artist", or more likely the person for whom the work was commissioned? Surely the tombstone maker hands over all ownership when completed. Somebody "owns" the tombstone, and it is probably the family.

Like if you take a picture of a privately owned painting. Can the artist or the owner of that painting prevent you from using that picture?

Some of the scenarios that come to mind border on the ridiculous, but there are some ridiculous people out there. And if one of them caught wind of find-a-grave.com, there might be some trouble. :-)

by ngairedith on 2012-10-23 06:56:08

you know, I was thinking about that today at work...

I enjoy painting, I do it as a hobby, a release valve. It is calming and therapeutic.
I have exhibited but never once sold a painting. Every painting I have ever done has been given away. I don't think I even have one in the house for myself :)

Take the picture I use as my profile pic here on FTC. It is a small part of a larger painting I did of 2 aboriginal guys, with spears in their hands, sitting in the desert watching the sun set after a days' hunting.
I gave this painting to an elderly, aboriginal woman of the Noongar people over in West Australia. Before I gave it to her I took a photo of it.

So this is what I was thinking today ... if her descendants inherit the painting and see my small pic and they say to me "we have the original, one off, privately owned, painting and you have no right to put that image on the net, take it off" must I comply?
1/ I took the photo so, according to the above sites, I have the copyright of that photo and can do what I like with it
2/ they own an original work so did I need permission to take the photo, let alone upload it to the net
3/ can they make me remove it?

by janilye on 2012-10-23 07:41:22

No
Because she owns the original not your copy.
Copies and prints are made and sold all the time and that's just what they are, copies.
You can buy a print or a photograph or copy of just about every famous painting ever produced.
I refuse to give up my coffee mug with Edvard Munch's 'Scream' on the side.

by ngairedith on 2012-10-23 08:20:13

why am I not surprised you drink out of such a mug :)
ok, now here's a slightly more involved case (although it's really a non-event but I would like to see any responses on this)

I will make it brief as poss..

years ago a friend bought a restaurant and asked me to do a drawing in keeping with the theme. I did this and faxed it to her. She gives it to another artist to reproduce into a large 6'-10' high (can't remember exactly) image which was put on top of the building as a drawcard. To his credit it was an exact copy. She rings me one day to tell me she has paid thousands to register this drawing and that I must never use that image again for anything! (not that I would ever have wanted to but NOW I'm miffed).

Not long later I'm surfing the net and there's 'my' drawing on an asian (chinese or koren) website. Using tranlator I find that they were tourists in the area (95% of the customers are tourists), loved the food, loved the pic

So, I downloaded the pic and put it on my web site

10 years later I'm rather disappointed that nothing has happened :)

tell me, who could take action against who
1- I still have the original drawing which may, ot may not, prove it was my original work of art (but I did give it away, therfore permission to use)
2- friend has registered it as her own so no-one can use it (obviously forgetting about tourists and the original source)
3- tourists have photo which apparently has copyright. I have 'stolen' photo

this can all be similar to cemetery photos

by janilye on 2012-10-23 10:12:50

Well, since you were the original artist, it belongs to you. The person who copied your art infringed on your automatic copyright. As the artist you retain all rights to reproductions of your art unless the copyright is expressly sold or given to a second party under a wRITTEN contract. When you make a work of art it is automatically your copyright for 70 years. She needed your written permission to reproduce your art.

by janilye on 2012-10-23 10:15:57

By the way that mug was given to me by my colleagues when I retired. (Do you think they were trying to tell me something?)

by ngairedith on 2012-10-23 10:25:12

yes, I think they probably were :)

just found this site which explains heaps about photograph copyright.
I found it REALLY interesting
Legal Pitfalls in Taking or Using Photographs of Copyright Material

by janilye on 2012-10-23 11:07:10

Okay, so what they are saying (in a nutshell) is, I can take a photo of John Smith's headstone without infringement but If I give the photo to someone else and they use that photo on a disreputable site, with say for instance a caption that reads "This man enjoyed our services so much he had a heart attack" the family of John Smith can sue the disreputable site but I remain in the clear.
*flashes mug

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