03/24/2016

Some OH funeral directors get aggressive to control digital content

By Dennis Hetzel, Executive Director

Wise publishers know to take obituaries very seriously. Treat them as one of the most important content items you have, whether they are paid or free.

I was reminded once again about the importance of obits last week when a member in Northeast Ohio contacted us with a concerning situation. The ad director has two local funeral homes that are claiming copyright status and refusing to allow the newspaper to distribute the obituary more widely on digital platforms such as Legacy.com.

This is the language that one home was placing at the bottom of each obit sent to the newspaper. (We have omitted the name of the funeral home here.)

IMPORTANT NOTICE - PLEASE READ

THE READER OF THIS NOTICE, HIS/HER EMPLOYER, NEWSPAPER, ETC. IS HEREBY FORBIDDEN BY COPYRIGHT TO PLACE THIS OBITUARY WITH LEGACY.COM, TRIBUTES.COM, REMEMBERINGOH.US OR ANY OTHER ONLINE MEMORIAL SITE.

Copyright Notice

© 2016 The xxxxxxxx Funeral Homes, Inc.

ALL RIGHTS RESERVED. This obituary is a work protected under international and federal Copyright Laws and Treaties. Any unauthorized reproduction, distribution or use of this material is prohibited. No part of this compiled work may be reproduced, altered or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system without express written permission from xxxxxxxx Funeral Homes, Inc.

The xxxxxxxx Funeral Homes, Inc. hereby grants the newspaper the right to publish the compiled work on the dates and location provided in the submission details and further grants to the newspaper the right to reproduce the work electronically on any website or digital medium owned or controlled by the newspaper, provided the copy is not altered or modified in any way.  The funeral home’s website domain (www.xxxxxxxxx.com) must accompany any reproduction of the work.  The work may not be used for or by any person or organization, for direct commercialized gain in competition with the author, the funeral home, or their respective businesses.

It’s no secret that funeral homes compete with newspapers as content providers, particularly online. Many funeral homes use “white label” platforms that provide additional revenue opportunities through the sale of related products and services.

But we had never seen something that went this far to stifle digital competition from the local newspaper. You have to wonder how the families would feel about this, or even if they know. Surely they would want the newspaper to share this information on their websites. The language above is sneaky, because if you are using a platform such as Legacy.com, the vendor controls the platform and obviously owns it. You thus would have to “isolate” these obits from all your other obits online, which is a terrible way to serve your readers.

With the above in mind, here are some of the questions we have tried to get answered in the past week.

1. Can a funeral home even assert a copyright on a family’s person information in an obituary?
2. Is this a national or regional trend, or something isolated?
3. Do newspaper contracts with providers such as Legacy.com require them to provide all their obits? If so, that places the newspaper in an untenable situation.
4. What is the best advice we can give to this member and others?

Let me tackle these questions one at a time.

Can a funeral home even assert a copyright on a family’s personal information in an obituary?

According to ONA counsel Lou Colombo, the home probably can assert a copyright in a paid obit because minimal originality is required for a work to be copyrightable, and there often are unusual facts and observations in obits. If you still have free obits so that the content is treated as news, it’s hard to imagine how they could prevail in a copyright claim.

This also seems tacky. The family already is paying quite a bit for the funeral director’s services, which includes preparation of the paid obituary. They might find it curious if they knew the funeral home was trying to “own” the information provided about their loved one.

Is this a national or regional trend, or something isolated?

Kim Vander Velde, senior vice president of Legacy.com, said that this appears to be isolated. Vander Velde told us they haven’t seen the copyright language in the past. “And, the funeral homes we work with are looking to expand way for people to learn of the death of a member of their community,” she said.

Do newspaper contracts with providers such as Legacy.com require papers to provide all their obits?

Vander Velde said each newspaper should examine its contract to see if there are such requirements, though it just makes sense to upload all obits, because that is something digital readers expect. 

She added this in a comment to me via email: “The newspapers have an audience that funeral homes don’t easily reach.  The newspaper is relevant for the users who don’t know the funeral home handling the services. Having the online obituary on the newspaper sites actually increases the relevance of the funeral home obituary, making it a win-win for everyone.  If the newspaper and Legacy remove the online obituary, the chances of more people not knowing about the death and, in particular, service times become greater.  In turn, less people turn out for the actual services at the funeral home or the church.  How is this good for the family or the funeral home?"

This reminds me of the arguments we make in favor of newspapers maintaining their relationships with public notice advertisers in the digital space. Our websites are the go-to places on the Internet where readers know they can find this information. Expecting grieving families and friends to have to hunt through funeral home websites or to even know they should be looking is poor customer service.

What is the best advice we can give to our members at this time?

We would encourage our members to immediately meet with local funeral homes that start this practice to explain why this isn’t a good policy for your readers and their customers.

You will have to make a local decision as to whether to do as they ask, negotiate with them or be more aggressive – perhaps to the point of refusing their advertising so that the funeral home has to tell the families why their loved one’s notice won’t be in the newspaper.  They just might back off.

We do urge members to resist if possible. It’s a bad precedent and unfair to cede the right to publish important content just because you are using a third-party vendor such as Legacy.

We also ask that you to keep us informed about what is happening in your market. We want to stay on top of this and take any follow-up actions necessary if this becomes a growing trend.