parliament volume 2 issue 4

Lemasters Consulting Parliament

Summer 2012 •1

Parliament is a quarterly journal focusing on the deathcare profession.

Summer 2012

Lemasters Consulting Parliament Lemasters Consulting Parliament

Summer 2012Summer 2012 •3•2

Parliament is published quarterly.

Publisher: Poul LemastersArt Direction & Design: Doth Brands

Questions? [email protected] are free. Please visit lemastersconsulting.com to sign up.

© Copyright 2012 Lemasters Consulting and Poul Lemasters. All Rights Reserved.

Photo Page 17 by John DaviesPhoto Page 18 by Klearchos KapoutsisPhoto 1 by Lloyd MorganPhoto Page 22 by David SalafiaPhoto Page 25 by Rob BoudanPhoto Page 26 by Lida Rose

Volu

me

2 , I

ssue

4 Photo Page 2 by Clairspics

Photo Page 5 by D. Sharon PruittPhoto Page 6 by Criss!Photo Page 9 by Steve SnodgrassPhoto Page 10 by Alex GarciaPhoto Page 13 by Robb NorthPhoto Page 14 by Eric Norris

I am amazed at how much things change—yet stay the same. As an example, look at technology now. I just downloaded a new

app for my kids on the iPad. It is amazing how quick and easy it is to find and load a new game and how amazing it works! The handheld gaming of today is unbelievable compared to years ago. As a kid I remember handheld games like Head-To-Head football. (Remember the great red blinking dash that you could move up or down and had to get across the screen without hitting another red dash line? And then passing—never did quite figure that one out.)Despite all the technological changes and advances, it’s still the same. My kids play games just like I played them. And just as I got yelled at to turn them off and I would ask “Can I play just one more time?!” so do my kids ask “Just one more game – please?!” This is true with all aspects of technology.We are now seeing new ways of providing services in our profession. We have gone from faxing obits to online obits. We have the capability to not only record a service—but also to stream it online for all to see. We can

Letter From the Publishereven make arrangements with a family one thousand miles away, without ever having them step into our building. With all this technology though—things are still the same. In this case, the things that are the same are liability and risk management. Just because technology makes things easier, it doesn’t necessarily make them less risky. This issue of Parliament focuses on some changes in technology and how we as a profession are moving forward, but perhaps lagging behind, when it comes to avoiding risks. It seems that everyone in the deathcare profession – funeral homes, cemeteries, and crematories, are looking at new ways to provide an old service. As we move forward with advances in technology, we need to be mindful of new ways to protect our business and those we serve. I hope this issue of Parliament will shed light on a few of the changes in technology in our profession and identify a few practices and procedures to help your business.

Warm Regards,



ABOUT COLE IMPERICole is an award-winning designer and the owner of Doth Brands, a creative agency that primarily serves the health, wellness, end-of-life and deathcare professions. She serves the community as a board member of several organizations and non-profits.For more information on Cole please visit HelloCole.com and DothBrands.com.

About the PublisherABOUT POUL LEMASTERS, ESQ.Poul Lemasters is the publisher of Parliament, a licensed attorney and a funeral director/embalmer. Poul is also an adjunct professor at the Cincinnati College of Mortuary Science. He is an active member of the International Cemetery Cremation Funeral Association where he advises on cremation concerns and FTC compliance to members. Poul is also active in various state funeral, crematory, and cemetery associations.

ABOUT LEMASTERS CONSULTINGLemasters Consulting is a company formed exclusively to serve the needs of the funeral profession, including funeral homes, funeral directors, cemeteries, cemeterians, crematories, and those working in the industry. Lemasters Consulting provides various services in: Government Compliance, Policy and Procedures, Risk Management, Litigation, Valuation, Market Analysis, Buy/Sell, Forms Management, and Next of Kin Disputes. www.lemastersconsulting.com

Contributing Author



Imagine sitting across from a widow—a young woman—who has tragically lost her husband. She is in tears trying to work

through the arrangements. She openly tells you that money is an issue and decides to go with cremation, she will handle the services and burial at a later time. She identifies the body and you perform the cremation. In two days you have the cremains back, but before you call the wife you get a phone call from the mother of the deceased. She informs you that the “real” wife has just found out about the cremation and wants the cremains back.

Apparently the woman making arrangements was not yet married to the deceased, but rather was just engaged. To top off the confusion, the deceased was not legally divorced. Rather, he was just separated from his wife for the past several years. There are no children, but there is an issue between the “real” wife and this woman purporting to be the wife of the deceased.

As bizarre as this story may seem, keep in mind that this happened right in front of

the provider. In this face-to-face scenario, the provider was lied to and ended up in a high-risk exposure to a lawsuit. Now, let’s add the advances to technology to this issue. Let’s change the facts of this incident so that the widow was actually dealing with the provider over the Internet. If we as a provider have difficulty proving who we deal with in face-to-face meetings—how do we as a provider ever know who we are dealing with when we don’t see them at all?

With society becoming more transient and mobile, it is expected that our profession will have to cater to these changes. Many providers now provide many options including online pre-need and at-need arrangements. Some providers allow merchandise, services, and even delivery of cremated remains to take place entirely through the Internet. In some cases the families never even speak to the provider. So the question becomes—what should you do and what can you do to protect your business?

Identification—How Do We Know Who We Are Dealing With?

continued on page 8


Summer 2012Summer 2012 •9•8 continued on page 11

Continued...How Do We Know?IDENTIFICATION OF THE CUSTOMERSIGNATUREThe first level of protection is through the signature of the customer. It is important to know that there is both Federal and State law that recognizes electronic signatures and gives an electronic signature the same effect as an original handwritten signature (On the Federal side there are two primary laws: Electronic Signatures in Global and National Commerce Act ‘ESIGN’ and Uniform Electronic Transactions Act ‘UETA’. Both of these Federal laws have similar state companion laws.) If a provider receives an electronic signature, such as a name typed at the end of an e-mail message by the sender; a digitized image of a handwritten signature that is attached to an electronic document; a secret code or PIN to identify the sender to the recipient; or a code that the sender of a message uses to identify himself, then it has the same force and effect as if the customer signed it right in front of the provider. Of course this still leaves the unknown of who signed.

VISUALThe laws recognize that an electronic signature

is valid, and the laws also recognize that a provider may establish certain security protocols to make sure that the signature is valid. One way is by obtaining visual identification. Visual is not the same on-line as it is in person. On-line visual identification uses personal data rather than personal images. A provider may choose to ask for an address, a birth date, or a social security number. The more private the information, the more likely that it will be secure and only obtainable from the person with whom you are dealing.

ATTESTATIONAnother important step in on-line verification should include an attestation or some confirmation from the customer stating who they are. In it’s simplest form it could include a line like this:

I hereby attest and state that I am NAME and I represent that I am the RELATIONSHIP of the DECEASED.

This simple line that would be filled out by the customer will serve you well if it is later



shown that the individual was not in fact who they represented themselves to be. Additional language could—and should—be added that would address hold harmless, indemnification, and duty to defend. However this language can be inserted into the actual terms of your contract.

IDENTIFICATION OF THE DECEASEDVISUALThere really is no substitute for the visual identification of the Deceased, but in the case of online arrangements, it can be difficult. While there are many processes that can be implemented it is important to understand the law on photographing a deceased body.

There are no laws that prohibit taking a photograph of a deceased human body. In fact, if you have a legitimate business purpose, then you are afforded some rights to taking a photograph. However, it is illegal to publish a photograph of a deceased body without permission. This act constitutes a claim for invasion of privacy and can be the basis for a civil lawsuit. In order to afford the most

protection, photographs should only be taken if you have a business purpose and also have consent from a family member.

On the procedural side, if you are going to obtain visual identification of a deceased body through online methods the photo should be posted to a secure website. The website needs to be password protected so that only those individuals who have obtained the password can access the site. Furthermore, there should be a waiver and release before the person with permission can access the photo. The waiver and release should address the fact that the photo may not accurately represent the deceased and it may be emotional to view. The person accessing should also have to type their name to identify themselves. Lastly, the site should only be accessible for a limited time, such as 24 hours.

Overall, there are no restrictions on the information that you may ask for from a customer. The customer has the right to refuse to provide you with the information but you, the business, have a right to refuse to proceed

Continued...How Do We Know?

continued on page 12



if you are not comfortable with the information provided or information not provided. The important thing to remember is that any policy you have must be implemented uniformly. A business cannot choose to ask for identification from one family and not another. Doing so could subject a business to discrimination claims.

As a business expands its services or way of dealing with customers, that business must also expand its protection. By offering more, you receive more. More business. More families. More revenue. And of course, more risk. Take the time to review your policies and procedures and make sure your protections are increasing at the same pace as your technology.

Continued...How Do We Know?



Typically, any type of copyright infringement case does not make its way through the court system. The reason

being that if you infringe upon someone’s copyright, and are caught, then settlement is the usual course. However, there are cases where individuals believe they have not infringed or have a justified reason for the use of someone’s work. In today’s world of streaming music and the use of so much music in the deathcare profession, this case serves as a reminder of how easy it is to lose a case and how important it is to make sure you have proper permission. This case is also timely due to the American Society of Composers, Authors and Publishers (ASCAP) recent mailing of hundreds of letters to funeral providers in an effort to notify them that they must have a license in order to perform licensed music.

This case involves a local bar, the Buck and Doe Corral, located in Georgia. Major Bob Music v. Gertrude Stubbs, 851 F. Supp. 475 (US Dist Ct, SD Georgia 1994). The Plaintiff in this case was a music publisher and also a member of ASCAP.

Case Study | I Love Rock-n-Roll, So Put Another $6,000 in the Jukebox, Baby


The facts are quite simple. Over the course of several years ASCAP notified the Defendant that they needed to obtain a license in order for them to perform any licensed music. The Defendant refused to purchase any type of licensing agreement. On the evening of December 19, 1992, a band performing at the Buck and Doe Corral played three songs that were licensed by ASCAP. Subsequently, the Plaintiff filed a lawsuit claiming copyright infringement under the Copyright Act of 1976. The Plaintiffs asked for statutory damages, injunctive relief, and costs and attorney fees.

In order to sue and prevail in a copyright infringement case the Plaintiff must prove five elements:1) Originality and authorship of the work involved2) Compliance with any formalities required to secure a copyright3) Ownership of the copyrights4) The works were publicly performed by the Defendant5) The Defendant had not received permission



The Plaintiffs met the first three elements by submitting copies of their copyright registration certificates. (Keep in mind that for copyrights it is not required to submit anything at all, and the first three elements can be met through other methods.)

The fourth element is also uncontested as an investigator went to the Defendant’s business and witnessed first hand the band playing these songs. Furthermore, the Plaintiff offered no evidence that it in fact did not play the songs. The fifth element is easily established through ASCAP, as it demonstrated that the Defendant had not ever applied for or received a license. Without any license from ASCAP, the requisite permission was never given and the Defendant did not have the right to perform the songs.

In defense to the allegations, the Defendant offered several arguments including an argument that the musicians were not employees of the Defendant, and as such not in their control, and also the argument that the performance was for their own gratification and not for the patrons,

therefore no profit was made. The Court noted that there is a “no profit” defense to infringement of copyright. Specifically it states: …performance of a non-dramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers . . .

However, the Court held that this defense was inapplicable to these facts. The Court noted that while an alleged infringer may not actually profit from the performance itself, it is well established that any “profit making enterprise which publicly performs copyrighted musical compositions is deemed to do so for profit.” Additionally, the Court stated that it has been held and is accepted that one may be liable for copyright infringement even though they have not performed the protected composition. One is vicariously liable for the performance if they have the right and ability to supervise the infringer and even if the controlling individual

Continued...Rock-n-Roll




has no knowledge of the infringement. As the owner of the Buck and Doe Corral, the Defendant has the right and ability to control all the activities within their establishment, and therefore is liable for any infringement violations.

In regards to damages, the Plaintiff is entitled to statutory damages of not less than $500 or more than $20,000 per infringement. In this case the Plaintiff requested $2,000 per violation, for a total of $6,000 which was granted. The Plaintiff also requested all Court Costs and attorney fees in this matter. The Copyright Act allows that a Court in its discretion may award costs and attorney fees. The Court so did in this case granting the Plaintiff an additional $4,021.28.

While the amount of this case may seem small, it is a reminder that performing any copyrighted material without permission can be costly. If for no other reason, the time and expense of fighting such a lawsuit is unnecessary. This case also points out two very common misinterpreted defenses to

Continued...Rock-n-Rollcopyright infringement. Not receiving a profit is not typically a defense. You cannot avoid an infringement claim simply by giving away the work or performance free of charge. Additionally, businesses are responsible for everything that occurs in their establishment. One cannot avoid an infringement claim by arguing that it was someone else.

Every business should have a clear understanding of copyright law basics and ensure that it has applicable licenses and if no license is available, then another form of permission. Do not rely on others to tell you what you can or can’t do. It is up to you to know and understand what you are allowed to do and how you can do it.



If half of all Americans said they used a social networking site (they did, according to the Pew Research Center) and there were 2,465,936

deaths in America in 2010 (according to the CDC)—how many active social networking accounts were left behind?

Most, actually.

You see, it’s much harder to die in a digital way these days. The deceased tend to live on, online, especially if no one left behind has passwords or answers to security questions. Another issue is that many social networking sites don’t yet have deceased policies.

That said, new companies are popping up that cater to this ‘digital death’ niche and you might be surprised at some of the options that are out there. Take Dead Social, for example.

Dead Social is a newish start up that has gotten lots of attention by the likes of Forbes, the Huffington Post and the Wall Street Journal, to name a few. The essence of this service is that you create a free account and schedule

status updates to be sent after you die. You can choose who these messages get sent to (a Happy Birthday to your widow on her birthday via Facebook, perhaps?) and when. Just give your password to a friend or family member and after you pass on, they will log in and your updates will start to go out. Curious? Visit deadsoci.al

Have you ever thought about Facebook? With more than 500,000,000 users worldwide there are deaths every single day. Many of the accounts just linger on with that person’s last status update becoming much like their last words. Facebook has a fairly straightforward process for handling deceased users’ accounts. A friend or family member will simply visit this page: http://goo.gl/l8QOb, fill out the brief form and the account will be ‘memorialized’ shortly.

Twitter, another megalithic social network, has a protocol for dealing with deceased users too. You can take a look here http://goo.gl/3msHk.

Death, DigitallySo what’s the moral of this story? It’s a lot like another, less digital, story we hear with families we serve. People often make arrangements for their funeral expenses and have a will drawn up in advance of their death so as to make the process as easy for those left behind as possible. The same thing needs to happen with our digital lives, too. Do you want your Facebook profile to remain active after you die? Do you want your Twitter account deleted? Do you want someone to notify other members of a forum you visit that you have passed on? Who do you want to clean up your online presence after you go?

As the years go on, social network involvement will only become more and more common. If you work directly with families, you may want to look at the information in this article and turn it into an added benefit for the families you serve. Tell them how they can turn Grandpa’s Facebook page into a memorialization account. You might be surprised at how grateful those families will be to be able to take care of those details….without a password.

by Cole Imperi



Copyrights—New Ways to Print and Old Ways to Get Sued

Does anyone read the newspaper anymore or listen to music? Let me ask that a bit more specifically. Does anyone read

the paper version of the newspaper or buy a CD and play it anymore? The truth is that technology has us doing the same thing but just in different ways. More people read the newspaper on the computer than buy a copy, and more people download a song instead of buying a CD.

Our profession is no different. The days of printing an obit in the newspaper are quickly being overtaken by online obits and memorials. Music systems in businesses, with hundreds of CDs, are being replaced with iPods and thousands of songs from the Internet. But with all these changes what changes have occurred with copyright laws? While technology affecting media is going a hundred miles an hour and changing daily, the copyright laws covering media is still the same. Businesses must adhere to the same copyright laws now, just as they did years ago.

PRINT MEDIAThere have been several recent discussions on the use of print media. This includes the use of obits, poems, and even pictures. As far as copyright laws, it’s pretty simple. Without permission, you run the risk of facing a copyright infringement claim. All written materials, whether marked with a copyright notice or not, have copyright protection. Federal copyright laws provide protection to any material published. This means that this article is protected, even though I haven’t done anything other than publish it. There is no requirement to file anything with any agency – copyright protection is automatic.

One of the broadest protections granted under copyright laws is that no one can reproduce your material without permission. If your work is reproduced without permission, then you have a right to damages, set forth by law, which range from $700 to $30,000 per occurrence of violation. In addition, you may also recover attorney fees and court costs. In order to obtain permission, the person who wants to reproduce




the work should get written confirmation from the author and get specific language as to when and where the work can be used.

There are currently several providers who are facing copyright infringement claims from the author of “The Dash.” The claims are based on individuals either printing the poem on memorials or printing the poem on their website without permission. The author grants permission to use her work but requires an annual license for the use of her work. While there are many who disagree with the author’s position—it is quite legitimate and well founded.

MUSICAnother big area for potential copyright infringement claims comes from the unauthorized playing of music or the unauthorized reproduction of music, also known as synchronization. In some ways the music realm is more limiting because without permission, you do not have the legal right to play music let alone record it. However, for music, permission to perform is easier to obtain.

In the realm of music there are licensing groups that provide permission to play music. These groups include ASCAP, BMI, and SESAC. Through a license from these groups, you have the right to play or perform copyrighted music. This license solves many issues but it is a limited license.

While the license grants the holder a right to play music, it does not grant a right to copy or synchronize music. This means that without further permission, no one has the right to record a copyrighted song. Period. There are many reasons that businesses allow them to copy a song—such as not charging for it, or buying it first and then copying it, or having someone else provide it. However there really is no exception that allows anyone to copy a song for redistribution. (Please feel free to download a copy of one of our complimentary whitepapers which will detail all the in’s-and-out’s of What You Can and Cannot Do with Copyrights at lemastersconsulting.com.)

EXCEPTIONSAs with any great and simple law, there are always exceptions, and it’s no different with copyright laws. However, keep in mind these limited exceptions and understand that in the deathcare profession, they rarely fit.

The first exception, fair use, is thought to be an easy workaround, but actually the exception is very limited. There is no clear line for when it is fair use and when it becomes infringement. Typically, there are two items considered in a fair use versus infringement case. Courts will look at the reason the work was used, weighing commercial versus educational; and the Court will also look at the amount of the work used. The more educational and more limited the amount of material used, the more likely it is fair use. Keep in mind that fair use typically does not allow the reproduction of an entire piece.

The second exception is a religious use exception, but it is more limited as well. The religious services exception allows almost any material to be read or performed in a religious

Continued...Copyrights




or worship service without the permission of the copyright holder. However this exception does not apply if you want to reproduce the materials. So not only do you have to be using the materials in a religious setting, you are limited to playing or saying the copyrighted works and without permission, you can not print, duplicate, or hand out any of the material.

The third, and most fun exception is a parody exception. Any work can be used in a parody setting without any risk of violating copyright. This can easily be seen in the wonderful works created by Weird Al Yankovic. Based on this exception it would be possible for someone to write their own version of The Dash and avoid any infringement claim. (As an aside, please go to Lemasters Consulting on Facebook to see the parody of The Dash at facebook.com/LemastersConsulting)

Lastly, don’t forget that copyright protection only applies to copyrighted material. There are numerous writings, songs, and photos that are

not copyright protected – sometimes referred to as “royalty free” materials. By using royalty free works, you can assure yourself the utmost protection and freedom of use.

The avenues available for media are changing. We as providers are being asked to provide more and more every day. While it may be easier to provide media, the laws are not easier. It is important that providers understand the boundaries of copyright laws so that they can fulfill the wishes of those they serve and still avoid the potential risk of liability.

Continued...Copyrights

Lemasters Consulting Parliament

Summer 2012•28Summer 2012

parliament volume 2 issue 4

Documents