Obituary Piracy Assessed

Thomson v. Afterlife Network Inc., 2019 FC 545, is a Federal Court decision in which the Court considers the existence of copyright in obituaries used in an e-commerce context.

DT was the representative plaintiff in a class action lawsuit claiming that posted obituaries and photographs, that were authored and taken by the plaintiff and other class members without their permission and thereby Afterlife infringed the copyright and the moral rights of the class members.

Afterlife operated a website that contained over a million obituaries in Canada and on which Afterlife reproduced obituaries and photos from the websites of Canadian funeral homes and newspapers and sold, for its own profit, flowers and virtual candles and hosted advertising for third-party businesses. The Terms of Service on Afterlife's website asserted that Afterlife owned the copyright in the website contents.

The plaintiff's father had died in January 2017. She authored an obituary for her father and allowed the funeral home to publish it, along with a photograph she had taken of her dad. In January 2018, she discovered that the Afterlife website displayed, without her permission, her father's obituary and photograph along with options to buy flowers and virtual candles on the same page.

The plaintiff submitted that Afterlife caused people who viewed the obituary on the website to believe that she had consented to its use and that she was profiting from such sales. The plaintiff expressed outrage and mortification that others would think she sought to profit from her father's death. Similar evidence was provided by other class members.

The class action lawsuit was filed and certified by the Federal Court. Afterlife's solicitor withdrew and Afterlife did not participate in a defense of the lawsuit. Afterlife shut down its website about one month after the class proceeding was commenced and directed all website traffic to a new website, similar in posting obituaries and sells advertising, flowers and virtual candles in association with the obituaries, but the obituaries are in a template form rather than copied from the authored works.

The plaintiff asserted copyright infringement, that it called 'obituary piracy' and also claimed that her honour and reputation were prejudiced by the association of her original work with advertisements, in violation of her moral rights. She felt that she felt her honour and reputation were diminished because others may think that she was...