copyright ownership for paid obituaries
- May 6, 2005 @ 10:28amelialigo says:My small public library in Michigan is embarking on a project to digitize an obituary file containing clipped obituaries from local newspapers. We initially assumed the newspapers owned the copyright to these obituaries but are now wondering if that's the case. If a funeral home or family pays for an obituary to run, who do they retain the copyright? If the newspaper then edits the obituary before it runs, does copyright transfer to the newspaper? We are having difficulty getting permission from one newspaper and want to make sure we even need it. Does anyone have any experience with this? What we want to do is make digitized full-text versions of these obituaries available via a searchable database on our website. Thank you.
- May 12, 2005 @ 12:57pmAFry says:Forget about who owns the copyright. Forget about getting permission.
According to 17 U.S.C.A. ยง 107, you do not need to get permission if your use is considered fair use. If you do not need to get permission, then you don't need to know who to ask for permission.
Is your use fair? I think so, but there is no way to be certain unless you get sued and a judge makes a determination. The law must be applied on a case-by-case basis using the four factors and only a judge has the legal authority to make a definitive determination.
However, here's my determination using the four factors:
1. Character of use. Commercial or educational. Unless you are selling your digital versions to other libraries, you are clearly noncommercial. This factor works in your favor.
2. Nature of work. Creative or factual. Obituaries are primarily factual. This factor works in your favor.
3. Amount used. I think you are using a small percentage of the entire newspaper. However, an argument could be made that you are using an entire obituary. Let's be safe and assume this factor works against you.
4. Market value. How old are the obituaries? If you are digitizing yesterday's paper, then you might be decreasing the market value. However, I doubt that your local papers are stockpiling back issues to sell to people in the future. The market for a weekly paper drops sharply at the end of the week and drops to near zero very fast. The market for a daily paper shrinks even faster. If you are digitizing current papers, you might want to wait until the paper is a month or maybe even a year old before digitizing. I think your use has essentially no effect on the market.
So, I believe that what you are doing is clearly fair use and does not require permission. However, as I said, only a judge can make a definitive determination.
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