Tuesday, February 22, 2011

Obituary web site buries your loved one a second time

   My father died on May 10, 2010. A couple of days later I submitted his obituary and paid over $800 for it to be published for one day in the Salt Lake Tribune, and to be posted on the Legacy.com web site.
    I was shocked and hurt several weeks later, when I went to "visit" my dad, to see that Legacy had shunted the obit behind a paywall. I was only permitted to see his picture and read the first two lines of a long obituary unless I paid Legacy for the privilege of having access to my own writing and my own father.

   I had assumed that the obituary would be accessible online forever, which had been of some comfort to me. I regarded it as a little bit of immortality, which I don't otherwise believe in, and since his donated body is being all used up at the School of Medicine, I have no other place to go to "be with" him. I assume that the friends and relatives of others feel the same impulse, because Legacy.com says its website "hosts" 7 million obituaries and gets 14 million visitors monthly.

Until 1998, when Legacy.com was founded, newspapers administered their own obituary departments. Obituaries were published free for many years, as a sort of public service, but in more recent times they have become a valuable revenue source in the form of paid classified ads. Now, Legacy "partners" with 124 of the 150 largest newspapers in the U.S. and is in possession of obituaries and Guest Books for more than two-thirds of people who die in the United States. 

When I discovered that my father's obituary had been buried within Legacy's walled and gated community, I returned to the local Media One web page, through which I had placed the obituary, and I realized that the site does disclose that obituaries will remain online for only 30 days. I had been so grief-stricken when I made the arrangements that I hadn't bothered to read the fine print. Nevertheless, I accept that Legacy fulfilled its stated obligation to me.

However, I believe the Legacy business plan, which involves placing obituaries behind a paywall after the initial 30 days -- without the families' knowledge or consent -- is legally indefensible. I sent Legacy an email, asserting my total and permanent ownership of the obituary:

I wrote it. It is my intellectual property. He was MY FATHER.

I did not sell Legacy or Media One the rights to the obit. I compensated them for publishing it. Common law dictates that I retained full copyright protection. When I threatened legal action against Legacy.com, a very charming customer-service representative named Erin immediately made my father's obituary freely accessible once again. He's back -- and I feel so much better. But what about everyone else who is interred deep inside the web site?

It is very disturbing that Legacy (and its affiliates) believe they have the right to continue to make money -- without a written & signed contract, without any informed consent -- off of the intellectual property and family history, not to mention the grief, of others. This is crass and exploitative.

Unless I can be convinced otherwise -- or unless Legacy makes all obituaries freely accessible permanently -- I intend to launch a nationwide nonprofit web site that would enable anyone who has paid a newspaper to publish an obituary to then post it for free, forever. I have no desire to deprive newspapers of their legitimate revenue -- I want dailies to survive as much as anyone -- but the current policy is an affront, and it's also devious.

Media One's site does not disclose what happens to your obit after 30 days, and I have been unable to find any newspaper site that does. I had to visit Legacy's web site to find its "user agreement," which I had never seen or signed, but which states that I have granted Legacy certain rights, including copyright privileges, which I have not. (the Legacy customer rep attempted to reassure me by saying "We do not claim exclusive copyright") It reads:  

User License Grant to Legacy.com, Inc. You grant Legacy.com, Inc., its affiliates (including its Affiliate Newspapers), and related entities a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, copy, modify, display, archive, store, publish, transmit, perform, distribute, reproduce and create derivative works from all Material you provide to Legacy.com, Inc. in any form, media, software or technology of any kind now existing or developed in the future. Without limiting the generality of the previous sentence, you authorize Legacy.com, Inc. to include the Material you provide in a searchable format that may be accessed by users of this Site and other websites. You also grant Legacy.com, Inc. and its affiliates (including its Affiliate Newspapers) and related entities the right to use your name and any other information about you that you provide in connection with the use, reproduction or distribution of such Material. You also grant Legacy.com, Inc. the right to use the Material and any facts, ideas, concepts, know-how or techniques ("Information") contained in any Material or communication you send to us for any purpose whatsoever, including but not limited to, developing, manufacturing, promoting and/or marketing products and services. You grant all rights described in this paragraph in consideration of your use of this Site and our services of making Material you provide us available to third parties, and without the need for additional compensation of any sort to you. Legacy.com, Inc. does not claim ownership of Material you Submit to the Site. 

I reject all of this completely, and I have informed Media One and Legacy.com that I feel compelled to challenge it, on principle. I will share their responses, if and when I get them. Otherwise, I will gladly serve as caretaker of an obituary site in which the gate is always open.