Obituary website Afterlife.co came under fire last week for copying obituaries posted on funeral home and newspaper websites across the country onto their site. People were upset to find their loved ones’ obituaries posted on the site, and it turns out, they can sue.
St. John’s lawyer Erin Best deals in intellectual property. She says the rights to an obituary belong to the author, and websites that copy obituaries without permission are engaging in copyright infringement.
“There’s no question — they can’t cut and paste them word for word. It’s the same as if you wrote a short story, essentially.”
She says the factual information in an obituary can be copied because facts are not copyright protected. However, to copy an obituary verbatim — as in the case of the Afterlife website — is copyright infringement.
The only legal way to copy a work that is protected by copyright is if it passes the fair dealing test. One way in which copying an obituary would fail the fair dealing test is if there is a commercial aspect.
“If somebody cuts and pastes that into another website for the purposes of selling something, that would be a breach of copyright,” said Best.
Afterlife sells virtual candles and flower delivery services through links next to each obituary on its website.
Afterlife is described on its website as “Canada’s largest database of deceased people.” The Quebec-based company is owned by entrepreneur Paco Leclerc. He has not responded to a request for an interview.
The company’s affiliate program director, Jordon Le Brun, in a response to an e-mail sent by The Telegram wrote that he is a customer service representative but forwarded the interview request to the CEO.
St. John’s resident George Murphy found his mother’s obituary on Afterlife’s website, along with the option to send flowers or buy a virtual candle. His mother died in August last year.
“It’s sickening,” he said. “To find out that you can buy services there — that was really heartbreaking, because they actually used her to help promote services that probably were no longer necessary … and were taking advantage of her, and taking advantage of us.”
Service NL spokeswoman Gina MacArthur says they are looking into the situation from a consumer protection or fraud standpoint. She also noted that the Department of Justice and Public Safety is following the story from a privacy perspective.
Multiple funeral homes in St. John’s say they have received complaints about Afterlife copying obituaries that are posted on their websites.
In Murphy’s case, he called Afterlife threatening legal action if they did not remove his mother’s obituary. It was removed shortly afterward, but he worries it will end up on the website again.
“A friend of mine also had the same thing happen to them,” he said. “The obituary was taken down and summarily put back up a few weeks later. So, I’ve still got my guard up on this one and I’m going to check back and see.”
Best says people are often unaware of their rights in this kind of situation.
“People involved are often at a time in their life when this is not a priority,” she said, referring to the fact that people are too busy grieving the loss of a loved one. “Also, people who write (obituaries) don’t realize they’re writing a literary work. They’re typically not writers — they’re just ordinary people who are writing an obituary.”
Best adds that on top of copyright action, people who find an obituary they wrote copied on the website might also claim an infringement on their moral rights.
“Because I would expect that this would be something that someone would find to be morally offensive,” she said, adding there could also be potential for a class-action lawsuit.
Murphy says he feels as if his mother’s memory was violated.
“As soon as I learned about this site, and learned that they were actually selling a service on her back and on her memory it was absolutely sickening to me. I just had to put a stop to it.”
Murphy suggests people should do a search for their deceased relatives or friends on the site, and ask the company to remove the obituary if they do not want it on there.
Other than its website, Afterlife also has Facebook pages for major cities across Canada. The St. John’s page, titled, “Obituaries In St John [sic] — Newfoundland” posts local obituaries, encouraging users to “share to friends and family in memory of” the person. Each Facebook post also contains links to send flowers or purchase a virtual candle.
