Copyright and The Bizarre World of Obituary Piracy

If you’ve had the misfortune of losing a loved one recently, they likely had an obituary published, either online, in a newspaper or both.

However, you likely also noticed that the obituary didn’t just appear in the original places it was published, being picked up by a variety of websites of varying quality and usefulness. 

Much of this is perfectly legal and fine. Many newspapers and publications have distribution deals with third-party websites. This can be a benefit to families as it can help ensure availability of the obituary for the long term, something that can often be challenging.

However, some of it is much more questionable. Obituaries are routinely scraped and republished by spam sites who, though hosting the actual obituary, often overload the page with ads, offers of “sympathy gifts” for users to buy and, in extreme cases, can be vectors for malware or scams. 

But, where spam sites have been a known issue for over a decade, in recent years, the issue of obituary piracy has taken a different turn: YouTube. 

As highlighted in a recent article by Kate Knibbs at Wired, several YouTube channels have sprung up that just individuals either reading the obituary or simply stating facts from it. These videos may feature the face of the person doing the reading, or the words may be read over a slideshow of photos, including a photo of the deceased.

All of this raises two questions: Why is this happening and what, if anything, can be done about it?

Why Obituary Piracy is a Problem

The reason that obituary piracy exists is simple: There’s money to be made by doing it.

That’s because, when someone passes, searches for their name and the word “obituary” go up. As word travels about the person’s death, those that were less close or were otherwise unaware of what happened will likely search exactly that to get the details of their death.

Anywhere that there is traffic, there is money to be made. Spam obituary sites can be especially lucrative by selling flowers and other sympathy gifts that someone might need immediately after learning of the passing of a loved one.

Also, people who are in shock or actively grieving aren’t likely to be particular about where they get their information, or their flowers, from. They are, in general, easier to push into both visiting a questionable website and making an equally questionable purchase.

In that regard, you can think of obituary piracy as a form of long-tail SEO, but one targeting a vulnerable market with a very specific group of ads and products. No individual obituary is likely to generate much in the way of traffic or revenue, but they are easy to create, making this a numbers game where quantity is the most important factor.

This is true on YouTube too. Though some of the channels involved have earned enough of a following to join the YouTube Partner Program, there are other approaches such as affiliate links and sponsorships that enable obituary channels to earn revenue.

In the middle of all this is the family and friends of the deceased. It can be difficult to see a loved one’s death exploited for the purpose of showing ads or selling products. However, it’s a reality that has become so commonplace that it’s virtually expected.

Unfortunately, the prospects for changing that are as grim as the practice itself.

Copyright and Obituaries

To be clear, obituaries are protected by copyright. They are creative works of expression that are fixed into a tangible medium of expression. Both the text and the images that make up an obituary are protected by copyright (even if the facts and information are not). 

However, that doesn’t mean that there is a clear path to enforcing that copyright.

One of the challenges that makes this difficult is that there is no one entity that owns obituaries. That’s because no one person or entity writes obituaries. Obituaries can be written by the deceased themselves, by their loved ones, a professional obituary writer or by a person at a funeral home or newspaper.

In short, no one person is tasked with drafting the obituary and, since an obituary is a completely non-commercial work to the person creating it, ownership really isn’t on anyone’s mind.

As such, who actually owns an obituary can be difficult to figure out. It depends on who drafted it and what agreements were signed as part of getting it published. Even worse, it’s likely that the obituary text and image with it have different owners, as the copyright holder of the photograph is the person who took it (or their employer).

However, finding the owner(s) is critical to take any action based on copyright. Whether you’re filing a takedown notice or seeking to file a lawsuit, only the copyright holder can take those steps.

In the United States, if you want to go beyond a takedown notice and file a lawsuit, either in federal court or with the Copyright Claims Board, you need to register the work with the US Copyright Office. 

However, that’s not a step that most people take. Once again, most people aren’t concerned with “owning” an obituary they write.  Their concerns, understandably, are elsewhere. 

But, even if they do take that step, legal action may still not be practical. For a single obituary, damages are likely to be very low. Even with all the above issues resolved, it may still not make sense to file a lawsuit, no matter how upsetting the use may be.

Because of that, legal action against such spammers has been rare, though not unheard of. In May 2019, a Canadian woman won a $20 million CAD ($14.7 million) default judgement against the site Afterlife. She sued after finding the obituary of her recently deceased father on the site and being used to sell “sympathy gifts”. The lawsuit became a class action lawsuit that included other grieving family members.

In the United States, such a lawsuit is unlikely because of the registration requirement (adding another reason to end it), but such litigation may be the only effective way to end or even curb this practice. 

Sadly, the same vulnerability that makes obituary piracy so effective is also what makes it so difficult to target. 

Bottom Line

Obituary piracy thrives because those pirates have found a way to commercially exploit something that was never intended to be used for commercial purposes. While a single obituary may not be very lucrative, obituaries in aggregate, clearly, can become a business model.

However, while there’s not much doubt that obituaries are protected by copyright, the nature of obituaries makes enforcing those rights difficult. It can often be difficult to establish who is the rightsholder of the obituary and, even if that can be clearly defined, other barriers to legal action often get in the way.

These sites largely get by because, while most people find their exploitation abhorrent, the interest in the work is personal and not commercial. As such, they fall through the cracks in a system designed to protect the commercial interests in copyright-protected works.

There’s no simple solution to this problem, not within our current system. The very thing that makes such sites effective also keeps them relatively safe legally, even as they flout the law.

Without a major change to either how we approach copyright or how we handle obituaries specifically, the obituary pirates aren’t stopping anytime soon. 

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