Distasteful Yes, But Not Copyright Infringement: Publishing “Basic Fact” Unauthorized Obituaries is Going Strong (And Often Getting it Wrong)

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Tempus fugit. Time flies, as we all know. It’s hard for me to believe that it was over 5 years ago that I wrote a couple of blogs on obituary piracy;  (The Deadliest Aspects of Copyright and Obituary Piracy Punished: Has Infringement No Bounds?) Those blogs were about an outfit in Canada that styled itself Afterlife. Afterlife’s business model was to post obituaries on their site they had harvested from newspapers and funeral home websites in order to sell virtual candles, flowers and other forms of remembrance for the departed. Not surprisingly, families of those so featured objected since they had not authorized Afterlife to publish, let alone monetize, their personal tributes to their deceased family members. A class action lawsuit was launched, alleging copyright infringement since an obituary, a creative work embodying original expression, can be protected by copyright. It is the story of a person’s life, often written by a close relative or in some cases in advance by the deceased person themself. In the Afterlife case, the Federal Court of Canada awarded damages of $20 million and issued an injunction preventing Afterlife from continuing to publish.

In this case copyright infringement was the legal tool used to stop Afterlife’s activities. While the court case succeeded in getting Afterlife to stop what the judge called “obituary piracy”, those running the business simply changed tactics. They declared bankruptcy (no doubt to thwart any collection of damages) and opened a new site called Everhere. Everhere avoided copyright infringement by highlighting a death, but then linking to the obituary posted elsewhere without copying or reproducing it. Among other things, it became a specialized ad-supported obituary search engine. I lost sight of Everhere and its somewhat sleazy business model until unauthorized obituaries again hit the headlines in a recent story published by the Canadian Press.

This time the company is known as Echovita. At least some of the same people involved with Afterlife are apparently running Echovita, according to the Canadian Press report. Apart from the fact that families are upset that the passing of a loved one is being monetized by an unknown third party on its website, often to the surprise of friends and relatives who may have searched for the obituary on a search engine and not realized that the Echovita obituary is an unauthorized version, it appears that not infrequently mistakes are made. This is because in order to avoid its previous problems with copyright infringement, Echovita is doing quick rewrites of material it has skimmed from the internet. No doubt it is paying various freelancers by the piece to produce obituaries from so-called “tombstone data” (the basic facts of a person’s life), and the mass production of large numbers of these each day naturally leads to mistakes being made. The author of the Echovita obit doesn’t know the deceased from Adam. They don’t know if he or she had two or ten grandchildren, or none and, to be blunt, they don’t care. The obituary is just another commodity they are producing. They could just as easily be writing about soap flakes or breakfast cereal. In defending itself against accusations that it made mistakes in some obituaries, Echovita is reported as saying it regrets that it made a “human error” when taking the “basic facts” from an obituary posted on the internet, while noting that it was legal to do so.

Going to the Echovita site is instructive. Obituaries are not restricted to Canada. People using the website have the option of purchasing virtual candles that will “burn” for various periods from a week to a year, depending on payment and preference. The virtual candle will “burn” on the site of the barebones obit published by Echovita. You can also plant a tree or order flowers in remembrance. And there are ads for various things, such as Ancestry.com. It makes my skin crawl.

From a legal perspective (at least with regard to copyright infringement), Echovita’s claim that what they are doing is legal appears to be correct.  Facts and ideas cannot be protected, only the expression of an idea based on those facts or ideas. The same is as true for obituaries as it is with news. While the New York Times can copyright its reporting of, say, the war in Gaza, anyone can report on what is happening in Gaza. No news outlet has a monopoly on the news although they can protect their expression of the news, an issue I examined in this blog a couple of years ago, (Do News Publishers “Own” the News? (And Should They be Compensated when Others use News Content they Publish?). Distasteful as it seems, there is no law that I am aware of that stops Echovita or anyone else from taking basic data (facts) from a published obituary (name, date of death, place of service, etc) and rewriting and publishing it. Using it for commercial purposes might be something else. I wonder if the terms of service of a funeral home website might limit the lifting and reusing of this information for commercial purposes, but I will leave that idea for the lawyers to ponder.

According to the Canadian Press article, the president of the Funeral Services Association of Canada is lobbying the federal government to strengthen privacy legislation to deal with the republication of obituary details, but has had little response. I am no expert on privacy legislation, but I know it is a minefield where the need for personal privacy must be balanced against freedom of expression. In the meantime, the best solution the Funeral Association can offer is to contact sites like Echovita and ask that an unauthorized obituary be taken down, although they would have no incentive or legal obligation to comply.

Dealing with obituary piracy, whether officially copyright infringing or not, is a difficult issue. Undertaking reform will not be simple. Pardon the pun.

© Hugh Stephens, 2024. All Rights Reserved.