Posting obits without permission could be copyright infringement, says lawyer

A St. John's lawyer says a company that plucks obituaries and posts them on its website may be crossing a legal line.

"Basically, a cut and paste of that text, that would be an instance of copyright infringement," says Erin Best, who specializes in intellectual property and copyright law.

Afterlife has a website that, in addition to listing obituaries, has options to buy gifts and flowers or to light a digital, animated candle in a person's memory. 

Several people have blasted the site, including George Murphy from St. John's who described it as "sick and abhorrent."

Best said Afterlife wouldn't be doing anything wrong if it just used the facts from an obituary, but that's not the case. 

"When people are writing obituaries … They aren't necessarily thinking they are creating a literary work, but in actuality they are. It is almost like a short story," she said.

"But the way they are arranged, and the writing that connects the facts that's all subject to protection under the Copyright Act as a literary work.".

'My phone is ringing off the hook'

Best said she has only had a quick look at the website, so she isn't sure just how much cutting and pasting is happening, but people are fuming. 

"My assistant tells me my phone is ringing off the hook," said Best, who is not in her office this week, but is still getting emails from people upset about the site.

"Particularly because [the obituary] is being used for a commercial purpose, which is to sell these flowers, candles or whatever it is — without their permission."

The use of the accompanying photo is a red flag, too, said Best. 

"I would say, in almost all cases, the photo would not be owned by Afterlife," she said.

"The use of that photo, the copying and pasting of that photo, without permission from the copyright owner of the photo would again be another copyright infringement."

Court fight

Best said if someone feels Afterlife has done them wrong, they can take the company to court, and damages under the Copyright Act range from $500 to $20,000 per work infringed.

"Which means if they infringed both the text and the photo, I think that would be considered two works by the court," she said.

If someone asked Afterlife to take an obituary down, and the company did, the settlement would be less than if the company refused to take the obituary down, explained Best.

Best warned someone fighting the company could end up on the losing side and have to pay Afterlife's legal costs, and that court battles can take a long time.

"I think [people] would probably be surprised to hear that it would take, at least, over a year," said Best.

Afterlife has previously told CBC that anyone is free to ask that information be edited or deleted on the site, and that it gets only a few requests to remove obituaries.