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Copyright Issues Involving Cemetery Grave Markers

Legal Questions about Who Has the Copyright on a Grave Marker or Headstone

Most people who find themselves in need of a headstone to mark a loved one's grave probably do not think of copyright issues as being an important consideration when it comes deciding what text and pictures should be engraved on the marker. Nevertheless, such people are occasionally surprised – and even angered – when a representative of a monument manufacturing company or a cemetery calls to tell them, usually in as calm and tactful way as possible, that their original design ideas are in violation of United States law. The fact is, logos, quotations, and other such fare are “intellectual property” entitled to protection under federal law. So, even if their appearance on something as innocuous as a memorial to a loved one is governed by copy right laws that all funeral consumers – indeed all Americans – would do well to take a few minutes to understand. To help with that, we have assembled this article that lists the highlights of these important laws.

The Legal Rules Summarized about Grave Stones:

In general, every piece of intellectual property (photograph, drawing, poem, quotation, etc) becomes the property of whoever created it from the very moment of its creation. This ownership lasts 75 years according to United States law and to legally use the property during those years – for anything other than simple enjoyment and enlightenment – requires written permission from the owner. Some people assume that the law allows the use of another person's copy right for non-commercial or educational use, but that is simply not the case. (The reason people believe that is because, from a practical perspective, most copyright holders will probably not take legal action against a person who uses the copyrighted material for those types of purposes. But the owners certainly do have the legal right to control almost every aspect of how their work is used, regardless of the purpose.) It is true the The United States Federal Court system does allow the general public a limited amount of “fair use” of copyright material. But we emphasize the word limited in the previous sentence. Generally speaking, copy right material may be used without permission only when it is being commented upon by a speaker or writer. (For example, someone critiquing a television commercial or discussing public to a movie scene has legal right to use clips of the commercial or movie as part of his or her public commentary. But the use of the copy righted material must be very narrowly tailored so that only the required portion is shown. One cannot, of course, freely use an entire movie as part of a commentary on just a few scenes.)

Legal advisers to most well-run headstone manufacturers, cemeteries and funeral homes will generally strongly recommend – perhaps even require – that their clients secure the legal right to use material a customer requests be placed on a grave marker. In the case of material that can be shown to be more than 75 years old, that permission is legally granted automatically. And in other cases, a manufacturer or cemetery has paid a licensing fee to an agency that manages a collection of copyrighted material that can be used by license holders for no additional fee. And, in still other cases, of course, the work is the directly attributable to the deceased or to an heir to the deceased's estate so permission can be legally assumed.

In all other cases, a person wanting to use a piece that is not his, her, or the deceased's original work on a grave marker must apply to the copy right owner directly for written permission. Sometimes this can be quite impossible – especially in cases in which the work in question is very famous.

Examples of What Can and Can't Be Used Legally on Cemetery Stones:

The King James Version of the Bible is one example of text that can almost always be safely quoted on a headstone. That book is much more than 75 years old and, therefore, is in the public domain. Even if the particular copy being quoted from was printed in, say, 1987, the text is still available legally for all public use. Those who wish to use quotations from any other version of The Bible, however, must check the date of the original publication. Any Bible translation over 75 years old is free for anyone to use. Otherwise, formal permission must be secured by the publishers of the translation.

Logos, meanwhile, are almost never formally part of the public domain. Even those of organizations such as the United Methodist Church or the Shriners or the United States Air Force have probably been modified in the last 75 years and, legally speaking, any change results in a new copyright that can be claimed. The clock, in other words, resets with each adjustment, however minor or insignificant it may be. Fortunately, though, many logos of large institutions are part of many collections of “clip art” sold to establishments such as cemeteries and headstone makers who have need for easy legal access to a large number of commonly requested copy right material. The publishers of these clip art catalogs devote much work and money to securing the legal authority to use the pieces they re-print and all who pay for the catalog then have legal permission to use the pieces – almost as if they were their own.

Famous quotations may be used on a grave marker, as always, if they are more than 75 years old. Otherwise, of course, the person who originally uttered or wrote the words must be consulted for permission – which generally must be produced in writing. Generally speaking, it is for this reason that most headstone makers or cemeteries tend to discourage the use of famous quotations, unless, of course, they are the intellectual property of the deceased him or her self.

Moral Argument Against Using Logos on Grave Headtones:

And that last thought in the above section leads us nicely into this important discussion: whether copy right protected material, such as logos and quotations from people other than the deceased, should be used at all on a headstone.

Since headstones are supposed to be monuments to the deceased, many reasonable people will argue that including a logo, photograph or quotation that belongs to someone else is less than desirable. It is, of course, a nice tribute to the person whose work is being used – but that missed the point of a headstone, many will argue. For these people, the money and time spent on securing permission to use a piece of work on a grave marker is not at all well spent.

An important case in point is the increasing popularity of sports team names and logos being used on grave markers and headstones. (In some cases even caskets, too.) Unless a deceased person actually played for the team in question – or maybe owned it or worked for it for many years – it seems likely – to many people – that there are many other, more noteworthy aspects of his or her life to feature on a grave marker. To quote one critic, “Is it really an honor to a person's memory to outfit a casket and a grave site with the colors and logo of, say, the Dallas Cowboys? Even if he was in attendance at every game – home and away-- I'm pretty sure there were many more important things that he concerned himself with that would be much more appropriate to highlight: his wife, his family, his church. It seems to me and insult to all that is good about life to put any sports team, corporation, or even a non-profit group affiliation ahead of all else at the top of a person's memorial grave marker.”

It is a curious thing to consider what that critic would say about a recent trend in which lifelong fans of the game Monopoly have taken to requesting that their final resting place be adorned in Monopoly phrases and logos. Reports on this phenomena say that the makers of Monopoly have taken care to license their copy rights and trademarks so that they can be easily accessed by funeral homes, cemeteries and those who make headstones. But does that make it right to do such a thing? Is this fun game, popular and as important as it may be to all who love it and spend time with it, really worthy of being the thing that marks any person's very life? Aren't the person's own accomplishment – the ministries of his life in the name of God – really the thing that should be engraved upon his headstone?

Many ethicist would believe so. As would, no doubt, the precious members of the monopoly fan's family who certainly loved the man or woman much more than the game.

The same is true of fans of, say, the New York Yankees or the Manchester United or even the Brazilian National Soccer team. As great as these historically great teams may be – as worthy as they may be of long lasting glory – even those who contributed directly to their success (the players, the coaches, and even the owners and front office managers) all had much higher callings to which their lives were accountable. So, even for those people, it might be a mistake to make the teams and the team's logo the center piece of a headstone.

But that is, in the end, just a matter of one's opinion. And, while those who are concerned about the moral message of using another person's copyrighted image or saying upon a grave marker may feel disappointed at the popularity of such a option, the fact remains that it is, indeed, an option – provided the legal questions we mention in the first part of this article have been addressed properly.

So, with that, we will return to the questions of legality for the conclusion of our discussion, and leave the moral question to be debated more thoroughly elsewhere.

The Likelihood of Enforcement on Grave Markers:

Those who would like to use an image or a phrase, for whom the copy right belongs to another person or company, may sometimes wonder whether the copy right holder will, in fact, dare to enforce his or her (or its) legal rights under the law if the image is used illegally after all.

The answer to that question is that, while enforcement has been historically rare – mostly because cemeteries, funeral homes and headstone manufacturers are very careful to not allow headstones to be made that are in violation of an innocent party's copy right – they have been known to occur. It is true, of course, that a headstone containing an illegally borrowed phrase or image may be manufactured by a small company that garners little attention and installed in a grave yard that is in a remote rural area and rarely visited by anyone. In such cases, the chances of enforcement are very small. And, to be completely candid, we must admit that even if a headstone with an illegal image happens to make it past the men and women who screen such things before being manufactured and installed in a larger cemetery, it seems very unlikely that enforcement action would occur. Further, it is also true that the copyright holder, no matter where the cemetery is located, would have only a limited amount of time to take action. (Remember, a copy right can only be protected for 75 years after its origination.)

But none of that is a guarantee that a copy right holder would not act at some point. And legal action – even years after a burial – can be expensive and even emotionally draining. A quick internet search for stories of grave marker owners who have been sued by copy right holders who claim an illegal use of an image or quotation will show that, as we say, such cases are rare. But they do, in fact, exist. And the number may be perhaps larger than one might otherwise assume.

So, the bottom line to all of this is that, even though it is likely that a person or group can get away with using another entity's copyright on a tombstone without permission, it is also possible that such a decision can lead to trouble and turmoil later. And it's probably not a very wise way to honor the memory of a precious loved one anyway. We cannot recommend it ever be attempted.

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