Does Copyright Law Protect Gravestones?
When we think of gravestones, we often focus on their sentimental or historical value. Yet, gravestones contain an unexpected legal aspect: copyright. Other common motifs of Halloween, such as scary movies, “The Monster Mash,” Stephen King novels, and Jack-o-lanterns, have benefitted from U.S. copyright protection and fall within its scope. They are original works of expression permanently fixed in some tangible medium—whether film, a sound recording, a book, or a pictorial work. This begs the question for a work that evokes the Halloween spirit: does copyright law protect gravestones?
Gravestones Are Copyrightable Works
Yes, gravestones can be protected by copyright law as pictorial, graphic, or sculptural works. The Copyright Act, 17 U.S.C. § 101, defines “pictorial, graphic, and sculptural works” as “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.” Since gravestones are three-dimensional sculptures, they fall within the scope of copyright-protected works. In addition, two-dimensional elements on a gravestone, such as carvings, images, engravings, and symbols, may also be protectable as artistic elements.
The U.S. Copyright Office’s Compendium provides some helpful examples to further clarify what kinds of works are and aren’t protectable under copyright law. For example, the Office says that while “[t]he Office may register a sculptural work comprised of rocks that are selected, coordinated, and arranged in a creative manner” it would refuse a registration of a “compilation of rocks” because rocks themselves are not a type of work protected by copyright law. The Compendium also touches on the human authorship angle of a work, stating, for example, that it would refuse registration for a work consisting of a magnificent piece of driftwood found “smoothed by ocean currents.” The driftwood would be a naturally occurring and discovered material, thereby lacking the originality needed for copyright protection and also not qualifying as a type of copyright protected work (unlike a sculpture). Accordingly, a gravestone would not be protected by copyright if the memorial were a simple rock that bore no human-made sculpting or etching, or if it were a rock discovered to bear aesthetically pleasing features or alterations due to natural occurrences. Contrastingly, a gravestone that a human (i.e., not nature) had sculpted could qualify under copyright’s minimal creativity standard.
Yet, the range of copyright protection for gravestones can vary, as some of these carved tributes to the deceased may merely comprise generic features, text fonts, factual information, and imagery expected in that context. In contrast, other gravestones incorporate elaborate designs, intricate engravings, and original texts that amount to minimal creative expression to be protected by copyright. Though gravestones can be protected by copyright the scope of copyright in a gravestone depends on a few factors.
Original Elements of Gravestones
Under U.S. copyright law, a work must have a modicum of creativity to meet the originality requirement for copyright protection. In the context of two-dimensional elements on gravestones, such as text, this requirement could be met through customized inscriptions, such as poetry or personal messages. In contrast, common phrases, such as “Rest in Peace,” and factual, identifying information are not protected by copyright because mere ideas and facts are not protected by copyright, as explained by the Supreme Court in Feist Publications, Inc. v. Rural Tel. Serv. Co. Further, commonplace design elements, such as simple symbols of crosses, wings, and hearts, may not be copyrightable on their own. Only original, creative expressions are eligible for copyright, while abstract ideas, concepts, and simple shapes are not. This begs another critical question: would a gravestone be considered minimally creative if it were in the shape of a simple circle or cross design?
Scènes à Faire
Probably not. Not only are simple shapes not minimally creative enough, but they might also be considered too commonplace or expected to be considered “original” for copyrightability purposes. When examining the originality of both two- and three-dimensional design elements of a gravestone, one must consider the “scènes à faire” doctrine, where some expressions are not eligible for copyright protection, as they are “expected” elements that arise from a particular setting or situation or are standard in the treatment of a given topic. Though the doctrine usually applies in fictional settings, it can arguably apply in the context of gravestones as rectangular slabs and simple cross shaped engravings may be too expected and commonplace in the funeral industry to qualify as minimally creative to meet copyright law’s low threshold for originality. However, various expressions of those symbols may meet the minimum creativity threshold for copyright protection, such as complex or non-generic renditions of those same design elements. Whereas a simple circle-shaped gravestone itself is unprotectable, a circular monument with three-dimensional figurines attached or two-dimensional symbols carved thereon may be protectable.
Utilitarian Aspects of Gravestones: Functional v. Expressive Elements
Another consideration that will determine the scope of copyrightability for gravestones is the “functional” versus “expressive” elements of the gravestone. Section 101 of the Copyright Act states that the scope of protection for pictorial, graphic, and sculptural works “shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned . . . .” A gravestone’s utilitarian (i.e., functional) aspects include its location-marking function, durability features, and identification function. The two-dimensional elements can identify the deceased and their burial location, including factual information such as the decedent’s name and birth and death dates. When considered alone, identifying information serves a utilitarian function and is therefore unprotectable. On the other hand, expressive elements are protectable, including creative carvings, images, engravings, and symbols. These elements could consist of inscriptions of personal quotes or poems. Some elements may fall in between, such as a gravestone’s shape and size, which could serve functional purposes like ensuring the gravestone’s durability and structural integrity, while also standing alone as expressive sculptural works.
Separability Test
Within the definition of “pictorial, graphic, and sculptural works” found in Section 101 is a “separability test,” as clarified by the Supreme Court in Star Athletica v. Varsity Brands. The Court explained that so long as a design is “separable” from a useful article (e.g., clothes, furniture, machinery, dinnerware, and light fixtures) and otherwise qualifies as a copyrightable work (i.e., is minimally creative and fixed in a tangible medium) on its own, it may be protected by copyright law. Such separable artistic features could include carvings, images, symbols, and decorative motifs.
In the context of gravestones, creative design features—such as decorative carvings, sculptures, or engravings—could stand alone as copyrightable works if they can be conceptually separated from their functional role as part of the gravestone. The exercise of separating functional from expressive, artistic elements involves imagining whether the element in question would still be minimally creative if it was its own standalone work. For example, a custom-designed angel statuette or a floral engraving could be separately protectable as their own copyrightable works despite being embedded in a gravestone. This makes sense, as these artworks and literary works on gravestones can be far more than simple markers of burial sites; they can contain deeply personal, even artistic expressions of the deceased’s life, memory, and identity.
Conclusion
Based on the Copyright Act and case law, it is clear that copyright can protect gravestones as works of creative expression. As sculptural works, gravestones may be protected if they are sufficiently original and fixed in a tangible medium of expression, and the two- or three-dimensional elements, artwork, or literary text thereon may also be separately protectable. It’s important to remember that, while a gravestone may include both protectable and unprotectable elements, those creative elements of a gravestone may be sufficient for the gravestone to be protectable by copyright. In the context of gravestones it is clear that copyright law will protect creative expressions across in even the most unexpected of places.
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