JewishGen Discussion Group #JewishGen Re: Recording or videoing in a cemetery--Do you know if prior approval by next of kin is required #general

Herbert Lazerow

I am asking if anyone, anywhere in the world, other than
Western Australia, is aware of a policy that before photographing
or videoing a cemetery headstone (metzevah) prior approval by
next of kin is required.>
I do not.
While the stones themselves are in the public domain, prohibiting
photography is a quandary for genealogists.>
It is not clear why the stones should be in the public domain. See below.
The Western Australia Metropolitan Cemeteries Board charges for
taking photographs...>
This is the rule >from their bylaws as amended in 1996:
Recording on film or videotape Substituted 19/1/96 80
(1) A person shall not, without the prior approval of the Board,
record on film or videotape any image or sound within a Cemetery.
(2) A person shall not record on film or videotape a funeral,
headstone or memorial within a Cemetery without the prior
approval of the next of kin of the deceased person whose funeral, headstone
or memorial is being recorded.">
It appears >from the text of the rule that one must receive two
approvals to make a copy of a stone-- one >from the next of kin, and a
second >from the Board. It may be that the Board's interpretation of
this rule is that it approves if the next of kin approves. If the next
of kin does not approve or cannot be found, approval must come from
the board.
The copyright law protects original expressions >from copying.
Copyright law differs >from country to country. This description only
applies to U.S. copyright law.
The amount of originality required for copyright is not great, but
there must be some originality. Only the original aspects of the work
are protected by copyright. The recitation of facts is not
sufficiently original for copyright, so the inscription of the
deceased's name, date of birth, date of death, and the usual symbols
would not qualify for copyright. A photograph of decedent would, as
well as an unusual relief. Whether the copyright belongs to the
photographer, the stonecutter, or the next of kin will depend on the
relationship between them; it would not belong to the cemetery, so the
cemetery could not authorize copying it.
A second argument for restricting photos is a property argument.
Normally, the owner of property can decide who can come on that
property and what they can do when there. Technically, this argument
in favor of the cemetery would only work if this cemetery only granted
a right of burial, and not if it conveyed an ownership interest in the
Another thing to consider is that the Western Australia
Metropolitan Cemeteries Board sounds like a government agency. If so,
it would be bound by the rules establishing it, and it might be
subject to public pressure.
As a matter of policy, I see some justification for limiting
filming in cemeteries in order to preserve the dignity of the place
and the quiet of those who visit graves. It seems reasonable for a
cemetery to limit the times and manner in which film can be made to
protect those values. It is hard to see much reason to restrict
cellphone pictures, which are not usually accompanied by crowds,
lighting, or other distracting equipment.
Herbert Lazerow
Professor of Law, University of San Diego

MODERATOR NOTE: Please continue privately.

Join to automatically receive all group messages.