When someone composes an obituary for a loved one who has passed away, carefully selecting the photograph to go along with it, one would suppose that the last thing on their mind is the copyright they may hold in that obituary and photograph. Of course, few people expect that an obituary could be the subject of republication or possible copyright infringement.
However, one website has been reproducing obituaries in their “database of deceased people”, leading to questions about ownership of the obituaries themselves, as well as the photographs accompanying them. The website reproduces obituaries and photographs, apparently without permission from the individuals who originally created and posted the obituaries. As reported in this Global News article, one family even states that an obituary for their loved one, which had not been written by their family and contained a number of errors, was posted on the website less than a day after their loved one passed away. The family did not know who wrote the obituary, although the website released a statement that all of the obituaries they re-post are already on the internet.
A recent article in The Lawyer’s Daily discusses an application for certification of a class action copyright claim against this obituary database website. The application claims that the website is infringing copyright and moral rights in respect of the obituaries and photographs. The moral rights claim relates to the website’s monetization of the obituaries by offering options to purchase flowers, gifts, or virtual candles, through affiliate retailers. Some funeral homes offer a similar service, but the article notes that the unsavoury nature of the website’s business model, which consists of “scraping” obituaries from elsewhere on the internet, without permission or notice, and making money by doing so through advertisements or the selling of flowers or virtual candles, could provide some support for the moral rights claim.
In relation to the copyright infringement claims, there may be some obstacles to overcome, particularly in relation to ownership of the copyright. According to The Lawyer’s Daily article, under the Copyright Act, R.S.C., 1985, c. C-42, the person claiming a copyright infringement must be the owner, assignee or exclusive licensee of the work in question. An assignment of copyright must be in writing. As mentioned in the article, this could create an issue if the photograph used in the obituary was taken, for instance, by a stranger.
Damages in the event of liability are also uncertain. In a recent case with similar facts, where the defendants were found to have infringed on the plaintiff’s copyright, the court awarded statutory damages of only $2.00 per image because the cost of capturing the images in that case was low. However, given the emotional aspect of obituaries, it is possible that the facts in this case could lead to a larger damages award.
Thanks for reading,
Other blog posts you may enjoy:
April 21, 2017 marked one year since the death of the beloved recording artist, Prince. We have previously blogged about the legal issues surrounding Prince’s Estate that have emerged since his death. Although more than a year has now passed, the Estate continues to be engaged in litigation.
According to media reports, producer George Ian Boxill tried to release an EP containing previously unreleased songs by Prince to coincide with the first anniversary of his death. Boxill asserted that he had the right to release the music. In a lawsuit commenced by Paisley Park Enterprises, Prince’s Estate disagreed and alleged that Boxill was in breach of the recording agreement that he had signed with Prince.
The Estate was initially successful in blocking Boxill’s attempts to release the EP of new music. However, according to a new report in TMZ, Boxill has now filed additional legal documents that state that the unreleased music was not the subject of a nondisclosure agreement.
Separately, as we have previously blogged, Prince died without a Will and any known children, resulting in claims from a number of possible heirs.
According to a recent news report, the Minnesota judge presiding over the proceedings had indicated that he would not make a declaration regarding the heirs of Prince’s Estate until appeals by other potential heirs whose claims had been rejected were allowed to run their course. Lawyers for Prince’s sister and half-siblings have now argued that this delay will unnecessarily increase costs and hinder the proper administration of the Estate.
We have previously blogged about the importance of carefully addressing issues regarding intellectual property and any possible rights the estate may have after the testator’s death in a testator’s estate plan. Deceased writers, musicians and other artists may be parties to agreements that bind their estates and affect the rights and control over their intellectual property.
It is generally advisable for drafting solicitors to ensure that such legal documents are reviewed as part of a creative professional’s estate planning. It may also be prudent to obtain the advice of a lawyer who specializes in intellectual property law, to ensure that the estate plan adequately addresses any possible rights the estate may have after the testator’s death. Disputes over the beneficial ownership and control of a testator’s intellectual property can result in protracted and expensive litigation.
The legal issues surrounding Prince’s Estate reiterate the importance of careful estate planning while the testator is still alive. Lack of certainty regarding the beneficiaries of the estate, the deceased’s intentions and the property/rights of the estate can significantly increase the risk that the estate will become embroiled in protracted litigation.
Other Articles You Might Be Interested In
There are new developments regarding the Estate of Maurice Sendak, the famous American author and illustrator who passed away in 2012 and is best known for authoring Where the Wild Things Are. As reported by the New York Times, Mr. Sendak’s Estate was mostly successful in an ongoing legal dispute with the Rosenbach Museum and Library in Philadelphia.
First, a bit of background: prior to his death, the Rosenbach Museum housed a large archive of Mr. Sendak’s work, including many original illustrations and portions of his book collection. However, these items were not gifted to the Rosenbach Museum. Instead, under his Will, Mr. Sendak left his collection to the foundation created in his name prior to his death, and directed the creation of “a museum or similar facility” in his hometown of Ridgefield, Connecticut. However, Mr. Sendak did leave his “rare edition books” to the museum under his Will.
In 2014, the executors of Mr. Sendak’s Estate withdrew Mr. Sendak’s collection at the Rosenbach Museum. The museum subsequently commenced a legal proceeding in Connecticut probate court, arguing that the Estate had kept two books by William Blake and a selection of rare books by Beatrix Potter. According to the museum, these books fell into the category of “rare edition books” gifted to the museum under Mr. Sendak’s Will.
According to the article in the New York Times, the Connecticut court held that the William Blake books did not fit the definition of “rare edition books,” but that the Beatrix Potter books belonged to the museum. In the result, the Estate and Mr. Sendak’s foundation were awarded 252 of the 340 items that were in dispute between the parties.
I recently blogged about the famous Mexican architect Luis Barragan, and the broader public debates that often emerge about how best to preserve an artist’s legacy after his or her death. A similar debate has served as the backdrop to the legal wrangling between the museum and the Estate.
In a 2014 article, the New York Times profiled Mr. Sendak’s long-time housekeeper and caretaker Lynn Caponera, who was now acting one of his executors and the president of his foundation. The article highlighted some of the questions and criticisms that had been directed at the executors’ decision to withdraw Mr. Sendak’s collection from the museum, with some questioning the appropriateness of Mr. Sendak’s property in Ridgefield as a site for a museum and the skill and ability of Ms. Caponera to manage and administer Mr. Sendak’s foundation.
Thank you for reading and have a great weekend,
Umair Abdul Qadir
In yesterday’s blog post, I wrote about the importance of carefully considering a testator’s intellectual property when preparing a Will. For readers who are interested in this topic, I would highly recommend a recent article in the New Yorker by Alice Gregory, entitled “The Architect Who Became a Diamond.”
The article tells the story of Luis Barragán, a famous Mexican architect who passed away in 1988. In his Will, Mr. Barragán divided his archive of architectural work between two individuals. According to the article, his business partner, Raul Ferrera, was bequeathed “all author rights and documents, movies, drawings, designs, sketches, mockups, and originals of work.”
After Mr. Ferrera committed suicide in 1993, his widow became the owner of Mr. Barragán’s vast archive. The archive was eventually sold for three million dollars to an architectural historian named Federica Zanco and her spouse. As the story goes, the archive was purchased for Ms. Zanco as an engagement gift by her fiancé, in lieu of the more traditional engagement ring.
Ms. Zanco went on to found the Barragan Foundation, and the Foundation also purchased the photographs taken by Mr. Barragán’s official photographer. At first, many thought that Mr. Barragán’s archive would be well-served under the ownership of a scholar like Ms. Zanco.
However, as the article notes, “[r]esearchers have been denied access, and even the use of images of Barragán’s buildings is carefully controlled. Among those who study twentieth-century architecture, the inaccessibility of Barragán’s archive and the bizarre conditions of its custodianship have become almost as much of a preoccupation as his buildings.”
Four years ago, the story of Mr. Barragán’s archive caught the attention of a conceptual artist named Jill Magid. In 2014, Ms. Magid invited Mr. Barragán’s to a lavish dinner and sought their permission to exhume his ashes. With their permission, Mr. Barragán’s cremated ashes were compressed into a diamond, which was then set in an engagement ring.
In seeking the permission of Mr. Barragán’s family, “Magid explained that her intention was to use the engagement ring with Barragán’s compressed remains to ‘propose’ to Zanco, in the hope that she would, in exchange, agree to open the archive, perhaps even to return it to Mexico.”
Although we have written many blog posts over the disputes that often emerge over the archives of celebrated artists and other creatives, the tale of Mr. Barragán’s archive and the engagement ring made from his remains may be one of the most fascinating stories yet.
The article also taps into a broader debate about the public interest in such archives, and the competing views regarding what should be done with an archive to best preserve the artist’s legacy. The article ends with an interview with Ms. Zanco, who explains that she has carefully controlled access to Mr. Barragán’s work through the foundation in order to prevent his legacy from being cheapened.
Thank you for reading and have a great weekend.
Umair Abdul Qadir
The creative works of deceased writers, musicians and other artists can continue to generate revenue for many years after their death. We have previously blogged about the protracted fights that can emerge over the revenue generated by these works. However, the intellectual property rights of a testator can often be overlooked during the estate planning process.
It is essential for drafting solicitors to be able to knowledgably advise their clients about intellectual property issues. It may also be prudent to obtain the advice of a lawyer who specializes in intellectual property law to ensure that the Will adequately addresses any possible rights the Estate may have after the testator’s death.
For example, the Will should clearly set out how royalties earned on a testator’s copyrighted work will be administered and distributed. With respect to copyrighted work in Canada, section 6 of the Copyright Act provides that copyright subsists for the lifetime of the author, the remainder of the calendar year in which the author dies, and an additional term of fifty years following the end of that calendar year. Thus, a testator’s copyrighted works can continue to generate significant revenue for many years after the testator’s death.
However, beyond ensuring that the profits earned are distributed in accordance with the testator’s wishes, a well-drafted Will can also help ensure that the testator’s artistic legacy is preserved. Given the rights and control conferred upon a beneficiary of intellectual property assets, the heirs of such works can help the testator’s work flourish and find new audiences well beyond their lifetime.
A great recent example of this is the story of Lucia Berlin, whose recent short story collection, A Manual for Cleaning Women, has topped bestseller lists and received the honour of being named one of the top ten books 2015 by the New York Times Book Review.
But, as set out in this touching memoir by one of her former students and friends, Ms. Berlin retired in 2000 and moved to a trailer park in Boulder, Colorado. She subsequently moved into a converted garage in Los Angeles in order to be closer to her son. Ms. Berlin passed away in 2004, on her 68th birthday.
More than eleven years after her death, Ms. Berlin is being heralded as a lost genius and “the greatest American writer you’ve never heard of.” Keen-eyed readers will note that many of the photographs that accompany articles about Ms. Berlin’s work are published courtesy of the “Literary Estate of Lucia Berlin LP.”
Thank you for reading.
Umair Abdul Qadir
If you know anything about baseball, you are likely to remember that iconic photo of a dying Babe Ruth standing near the home plate at Yankee Stadium 1948. If you do, you may be interested to know that the Estate of Nat Fein (the photographer who took the photo) and The New York Times recently settled a legal dispute over the ownership of the photo.
At the time the photograph entitled “The Babe Bows Out” was taken, Nat Fein was a photographer for the New York Herald Tribune. The picture ultimately won him a Pulitzer Prize for Photography.
Despite Fein’s recognized authorship of the famous snapshot of Babe Ruth, the New York Times, after several corporate acquisitions, believed that it owned the photograph and the copyright attached to it. The Estate asserted ownership on the basis that the copyright had been assigned to Fein when he was given the negative of the photo. However, the parties have now quietly agreed that while The New York Times will own the rights to The Babe Bows Out, the Estate will receive some financial benefit from its sales.
In Canada, copyrighted work authored during the course of employment is first owned by the employer and may only be validly assigned if the assignment is in writing signed by the first owner or an authorized agent. Section 13(3) and (4) of the Copyright Act state that:
13 (3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.
13 (4) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent.
So, if this dispute were to have taken place in Canada, the Estate’s assignment argument would have failed and the Estate would have lost any entitlement to financially benefit from one of Nat Fein’s most famous works.
Thanks for reading and have a great weekend!
The concept of legal and equitable ownership is constantly evolving as our blog has documented over the years. In a world where anything is possible, the viral photograph of the “Monkey Selfie” has led to a new lawsuit by PETA to extend copyright laws to animals.
The “Monkey Selfie” is a series of photographs that were taken by a black macaque during a photo-shoot set up by nature photographer, David Slater. Mr. Slater travelled to North Sulawesi, Indonesia in 2011 for the purpose of photographing black macaques when one of the black macaques took control of his camera and began pressing the shutter button resulting in hundreds of photographs. While most of the photographs were blurry or unremarkable, a handful of these photographs captured a facial portrait of the black macaque, Naruto, smiling and grinning at the camera.
Eventually, the infamous “Monkey Selfie” was posted on Wikipedia for free distribution around the world wide web. To Mr. Slater’s dismay, Wikimedia took the position that there is no copyright attached to these photographs because they were not taken by a human being (see here). In 2014, the US Copyright Office issued a compendium of its policies which included a new stipulation that only works produced by human beings may be registered for copyright.
As the result, PETA, People for the Ethical Treatment of Animals, is now suing, on behalf of Naruto, to claim copyright to the “Monkey Selfie”. According to PETA, as reported here by CNN, “authorship; under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto”.
For good measure, click here for an “elphie” to round out your #Friday morning.
Thanks for reading!
An online cognitive screening exam known as the "Sweet 16" (which we blogged on last year) is no longer available after the holder of copyright of the Mini-Mental State Examination ("MMSE") issued a copyright claim over the online test’s content.
In December 2011, developers of the Sweet 16 (while not admitting any breach of copyright) permanently removed the cognitive impairment examination from the Internet in response to a copyright infringement accusation by the entity which manages the copyright license to the MMSE. The Sweet 16 involves 16 elements including questions on basic orientation, items to remember, and counting sequences forwards and backwards. Test developers provided open access to the Sweet 16 noting that copyright rules restricted the wider-known MMSE.
The MMSE was created in 1975 by Marshal Folstein, MD, and was freely available to doctors until its copyright license was actively managed in 2001.
Interestingly, most medical tests have a copyright. For example, the Framingham risk score, which accesses a patient’s risk of stroke; the FRAX, a predictor of fractures; and the Katz Activities of Daily Living assessment, which measures a person’s functional status all have copyrights which expire 70 years after the copyright owner’s death or longer in some cases.
David Morgan Smith – Click here for more information on David Smith.
The British lawyer and author, John Mortimer, died on January 16, 2009. During his 85 years he produced more than 50 novels, biographies and memoirs. Of course he was best known for the creation of Rumpole of the Bailey.
Mr. Mortimer had an active professional life, and by many accounts, an active private life as well. He was first married in 1949: apparently he noticed his first wife while he rode a horse and peered over a hedge. After divorcing around 1970, he married again in 1972. Both wives were named Penelope, although he called his second wife Penny.
While the deceased lawyer may have organized his affairs with the requisite estate planning in place, the experience in Canada might suggest that Mr. Mortimer’s Estate will encounter some challenges not least of which may relate to copyright issues.
I refer to Lucy Maud Montgomery who died on April 24, 1942. The creator of Anne of Green Gables left a legacy of work and maybe just a few headaches for her heirs.
After all the copyright kinks were ironed out, it seems that Anne of Green Gables has a bright future ahead of her. With luck, and the combined efforts of lawyers and artists, Rumpole will experience similar success and longevity.
Thank you for reading.