copyright issues

[Robert Vigurs]

I am planning a project on the old west. I will be using mostly my own images, but would like to add a few 100 year old + images by other photographers. I want to photograph images, and make my own negatives from them. Some images are listed as "photographer unknown", and there are some famous names such as Curtis, and others. How would I go about finding the owner of the image? How do I make sure I do not infringe upon a copyright? Where do I start? I appreciate any guidance here. Thankyou

[Leigh]

It's highly likely that the images are all in the public domain.

The only way they could still be under copyright is if the copyright was continuously renewed under the old copyright laws.

The current Digital Millennium Copyright Act (the DMCA, aka the Disney Protection Act) does not apply to images made before it was signed into law in 1998, except in certain special cases. Even under it's ridiculous provisions, the copyright term is only 99 years.

It would be polite to label each image with the original photographer's name, or "unknown", as appropriate.

Under the DMCA, all original works are copyright to the author upon creation. No additional action is required for basic protection*, and the © copyright symbol is not needed. However, I think most folks still prefer to attach the symbol, year, and name just in case it's needed for identification in the future.

As to your copyright to the images, it's generally held that if the new image is just a copy of the original, with no added content, that it does not constitute an original work and therefore does not enjoy copyright protection. As to what "added content" means, you should consult an attorney who specializes in this type of work if you care.

- Leigh

*Note: Additional protection is provided for works that are submitted to the Library of Congress, as was previously required.

Ref: http://en.wikipedia.org/wiki/Dmca
The Copyright Office website is here http://www.copyright.gov

[Jim Jones]

You might also check the Library of Congress photo collection http://www.loc.gov/pictures/ for copies of the desired photos that might be in the public domain.

[al olson]

A good source would be the Denver Public Library. They have a great collection of historical photos and I think they are pretty reasonable regarding publication rights. (I am aware that they tend to be very helpful with regard to publishing these images in tourism brochures.) I am not sure how you would get permission to photograph their hard copies, unless you were to make hard copies yourself from the digital files.

[Eric Woodbury]

I'll bet Disney owns them.

just kidding, sort of ...

[Robert Vigurs]

I thank you all for the input. Great information. Robert

[Steve Smith]

As to what "added content" means, you should consult an attorney who specializes in this type of work if you care.

Or save your money and research the facts yourself.

Even in the unlikely event of a one hundred year old image still having some form of copyright protection, the chances of the original photographer chasing you for royalties is practically zero.


Steve.

[Leigh]

...the chances of the original photographer chasing you for royalties is practically zero.
It's the current copyright holder who might take issue, not the original photographer.

Note the recent litigation of the Ansel Adams Publishing Trust v. the guy who found the glass negatives.

- Leigh

[Big Fish]

A good reference is www.copyrightaction.com and www. librarycopyright.net (similair to the activity on this site...good).

Because the images are over 100 years old may not mean there is no copyright. This can be a completed and confusing issue should those images have marketable value.
Do your homework!

Example. Mr. Photographer takes photographs 1870-1920. All rights belong to the artist/creator. After his wife dies and with no children in bequeathes the collection to a very good friend in 1921 although he had brothers and sisters the friend feels he inherited the collection. Rights may be transferred through the inheritance. The friend keeps the images in box for 59 years until discovered by friend's daughter who says"Wow." The friend, now old, shows collection to an individual who says "wow" and buys the collection before the end of the 60 year rule and files and receives a copyright rgeistration. Although some of the images were published they must be published according to the definition of "publish" by the LOC. Are they included in copyright? A big name writer sees the images while researching says "wow" and wants to write a big book and create a limited edition!
The purchase documents for the collection did not mention copyrights, etc. and were lost in flood. The grandkids of the Photographer recognize the name and say
" wow...whats up? Get the picture.

This is just an example. Before you use make a best effort research at the Library of Congress.

Be cool and respectful.

[Steve Smith]

It's the current copyright holder who might take issue, not the original photographer.

If the images are 100+ years old, it is likely that there is no current copyright holder. Do a search to the best of your abilities and if no one can be found, use the images.



Steve.

[rdenney]

For photographs made in the U.S., the copyright laws are pretty clear. Any photograph made before 1923 is in the public domain. Before 1979, copyrights were granted for a single 28-year period following the date of publication (which includes public display), and could be renewed by the copyright holder for a single additional 28-year period. Registration was required for works that were published. Thus, copyright protection could never extend beyond 56 years after the date of creation. If the work was published without a copyright notice, its protection was lost.

Thus, any work published before 1923 lapsed into the public domain before the law changed in 1979.

The 60-year rule and other stuff complicates issues for unpublished works never shown to the public, but the central question would still be whether the work had lapsed into the public domain before 1979.

After the law changed, copyright protection was granted to the author for a period of 70 years following the death of the author (or beyond the creation date if the author is anonymous). Copyright notices were not required but changed the burden of proof and the potential remedies in an infringement case. Registration was also not required but that also changed the burden of proof. That 70-year period has been increased several times, mostly to keep Disney from losing its copyrights over Mickey Mouse, near as I can tell.

Anything that remained under copyright protection when the new law went into effect was covered by the new law. Anything already in the public domain remained so.

This was U.S. copyright law, and it was quite different in other countries. Part of the motivation for the Copyright Act of 1978 was to become more consistent with international laws.

Note that derivative works maintain a separate copyright on the new creation. If I made a print from an negative that was made in 1920, I would be able to retain copyright over the print, which presumably shows the efforts of my own creative input. If one is going to claim that a copyright is not in force for a work produced before 1923, then one should be working from a print or negative made before that time.

It's possible that works lapsed into the public domain even when they were made after 1923. Works made after 1951 were still in their first 28-year protection period when the new law went into effect, so they are still protected (unless they were published without a copyright notice). Works made between 1923 and 1951 needed to have been renewed to still be protected in 1979, but they may not have been renewed, in which case they lapsed into the public domain before the new law went into effect. In these cases, one has to investigate potential ownership.

Rick "who has explored this issue with respect to music" Denney

[r_a_feldman]

And then there is Google, which is pushing changes to the law that would allow them (to oversimplify a bit) to use any photograph that does not have the owner’s name and contact information permanently attached. The change would allow a publisher to declare photographs “orphan” works if they cannot locate the creator or copyright holder of a photograph (or book) after what is probably a minimal search. To complicate the matter for photographs on the web, a number of big media organizations, such as the BBC, routinely strip the metadata from photographs they publish on their web sites, creating instant orphans.

There are some interesting discussions of this issue at http://www.theregister.co.uk/2011/02/18/photographers_orphan_works/ and
http://www.theregister.co.uk/2010/04/08/photogs_sue_google/.

Bob

[Big Fish]

Check out www.imagerights.com..... You sign up and submit a folder of your images. Their software searches the web for that image even if altered. If your image is located they notify you. You can determine that it is OK or if you choose they go after the infringer and any claims collected you split with them

Best....

[Mike Anderson]

Off topic a bit but the stolen scream (http://www.thestolenscream.com/) guy could use a good copyright lawyer. It's an interesting story of possible the most misappropriated image in recent times (or maybe of all time).

...Mike

[Shadowtracker]

There was some recent stuff to do with Ansel Adam negatives/prints and rights. I don't know the outcome of it, but much of the stuff is more than 60 years old and were "given" to someone by him - least that's the way the story went I think - but his children are still alive and a dispute has ensued since. I haven't heard anything about this real recently, but you can probably look it up via google or some-such to see the active gyrations of this very issue.

[Vaughn]

The recent AA case did not resolve who made the negatives (Uncle Earl or AA or whoever). The ruling only had to do with the use of the AA name -- which is a registered trademark, I believe, of the AA Trust. No copyright issues were decided.