Copyright and the old family photo

First in an occasional series on copyright — the old family photo

Opal Robertson c1900

The photograph you see to the left here is of my grandmother, Opal (Robertson) Cottrell. Isn’t she adorable? Offhand, I’d say she might be all of two years old in this image, so it was probably taken around 1900.1

It was probably taken in Granger, Williamson County, Texas. That’s one of the two studio locations for the photographer, and that’s where her grandmother Martha Louise (Shew) Livingston was living in 1900.2 Martha and her last husband, Abigah Livingston,3 had their own photo taken at the same studio, most likely at the same time.4

Let’s see here… 2012 minus 1900… that photo was taken 112 years ago. I own this copy of the photo. The person depicted in it is my grandmother. Nothing to worry about in using this photo, is there?

After all, most people will tell you that any photograph or other work created before 1923 is now in the public domain, meaning that there aren’t any copyright restrictions and anybody can make use of it.5

Great! My grandmother’s picture was certainly created before 1923, so it’s public domain and I can do whatever I want, no?

No. As a matter of fact, were it not for the concept of fair use,6 I’d be violating the copyright of the photographer who took this picture by using it here in this blog.

Pretty mind-boggling, isn’t it? I own this copy of the photo, it’s a picture of my own grandmother, and yet the law severely limits what I’m allowed to do with it.

That’s because — drum roll, please — ownership of the photo is not the same thing as ownership of the copyright.

Under the law, if an item is protected by copyright, then only the copyright owner gets to say who can and can’t copy it or use it. And the mere fact that the copyright owner sells or gives away copies of the item doesn’t mean the copyright goes with it.

If I take a photograph, I can sell you a copy and keep the copyright. You can display the photo in your home or your office, but the only one who can make more copies or publish it or use it in a whole bunch of other ways is me. I can print hundreds of copies and sell them all, and none of the buyers has any right to re-copy or re-publish the work. I could even sell you one copy for your home, sell the right to make copies for public sale to your cousin, and sell the right to hang the photo in public to your cousin’s husband’s buddy.

What that means for this picture of my grandmother is that even though the photographer sold the photo to someone in my family (I’m betting it was Martha Louise who paid for it — my grandmother was her first grandchild), and even though the picture was passed down through my family and a copy ultimately came to me, the only way I can use the picture any way I want is if the copyright on that photo has expired.

How do I know that it hasn’t?

Here’s the story:

Because of a number of amendments and changes in copyright law, what is and isn’t covered by copyright depends on two things: (1) when the item was created; and (2) whether it was published. Here’s a general outline of the key dates under the law:

DATE OF WORK PROTECTED FROM TERM
Created 1-1-1978 or after When work is fixed in tangible medium of expression Life + 70 years1 (or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation2
Published before 1923 In public domain None
Published from 1923 – 1963 When published with notice3 28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
Published from 1964 – 1977 When published with notice 28 years for first term; now automatic extension of 67 years for second term
Created before 1-1-1978 but not published 1-1-1978, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2002, whichever is greater
Created before 1-1-1978 but published between then and 12-31-2002 1-1-1978, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2047 whichever is greater

Chart courtesy Prof. Laura Gasaway, UNC Law
Check for updates here

1 Term of joint works is measured by life of the longest-lived author.
2 Works for hire, anonymous and pseudonymous works also have this term. 17 U.S.C. § 302(c).
3 Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-1978 and 3-1-1989, effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. 17 U.S.C. § 405.

So… why isn’t this 1900 photo in the public domain? Because it had to have been created and published before 1923. And there’s not one bit of evidence it was ever published as that word is used in the law:

“Publication” is the distribution of copies … of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.7

And when it comes to photographs, making a single print for the person photographed does not constitute publication. Even if the photographer hangs it up in his window as a display piece to entice others to come into his studio, it won’t help:

A public … display of a work does not of itself constitute publication.8

Under current U.S. law, for any unpublished work created before 1 January 1978, the copyright lasts for the lifetime of the creator plus 70 years. Hmmm… That photo was taken 112 years ago, and the photographer had to be an adult when it was taken, so time is running fast, no? No. Frank J. Schlueter, principal of the studio where the photo was taken, was born in Germany in March 1874. And he died in Texas on 7 December 1972.9 I have 30 years to go before I can use that photo in any way and for any purpose I want.

But I mean, really. Nobody is alive today who could possible chase me for using this copy, no? No again. “Ownership of a copyright … may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.”10 Whoever has the rights to his estate has this copyright too.

But wait a minute. There are other photos from this studio out there on the web, some even on Flickr from respected institutions like Southern Methodist University. Nobody’s chasing them, right? And there are all kinds of photos online at the Library of Congress! Yeah. That’s true. And you should really take the time to read what the Library of Congress says about the photos it owns and puts in its digital collections. You’ll find its overview here. And the bottom line there is that “The Library is unaware of any lawsuits involving the use of its historical images.”

Just my luck, the case against me would be the first one…

Sigh… I’d better still be alive and kicking in 2042…


SOURCES

  1. Opal E. (Robertson) Cottrell was born 21 Aug 1898 in Eagle Lake, Colorado County, Texas. See Virginia Department of Health, Certificate of Death, state file no. 95-011808, Opal Robertson Cottrell (1995); Division of Vital Records, Richmond.
  2. 1900 U.S. census, Williamson County, Texas, Justice Precinct 2, population schedule, enumeration district (ED) 125, p. 117(B) (stamped), sheet 9(B), dwelling 143, family 154, Martha Levingston; digital image, Ancestry.com (http://www.ancestry.com : accessed 5 Mar 2012 2012); citing National Archive microfilm publication T623, roll 1679.
  3. I have to say “last husband” because she had a child — my great grandmother, Opal’s mother, Eula — by an earlier relationship. See 1870 U.S. census, Cherokee County, Alabama, Leesburg P.O., population schedule, p. 268A (stamped), dwelling/family 15, Martha and Eula Baird; digital image, Ancestry.com (http://www.ancestry.com : accessed 5 Mar 2012); citing National Archive microfilm publication M593, roll 7; imaged from FHL microfilm 545506. We’re still trying to figure out if Daddy was a husband or not…
  4. Abigah and Martha Louise (Shew) Livingston photograph, c. 1900; digital image, c. 2004, privately held by Judy G. Russell, New Jersey. The original is held by a great grandson of Abigah and Martha Louise in Texas.
  5. As explained by the United States Copyright Office, “A work of authorship is in the `public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.” See U.S. Copyright Office, “Definitions” (http://www.copyright.gov/help/faq/faq-definitions.html : accessed 5 Mar 2012).
  6. Ibid., “Fair Use” (http://www.copyright.gov/fls/fl102.html : accessed 5 Mar 2012). I’ll get to fair use in a future post.
  7. 17 U.S.C. § 101.
  8. Ibid.
  9. Texas Department of Health, Certificate of Death, state file no. 92069, Frank J. Schlueter (1972); Bureau of Vital Statistics, Austin.
  10. 17 U.S.C. § 202(d)(1).
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106 Responses to Copyright and the old family photo

  1. Very helpful post! Thanks! Just go to show photographs copyright can be complicated too.

  2. Marjorie says:

    Thank you (I think) for the clarification between creation and publication. It’s all so complicated – no wonder we all just play ostrich and hope for the best!

    • Judy G. Russell says:

      Hoping for the best isn’t quite what I’d recommend… but stay tuned for future posts on fair use and other concepts that may help.

  3. Celia Lewis says:

    Oh dear, Judy – my mind boggles with all this… I have a gorgeous tintype of my grandparents taken in 1899 from a photographer’s studio in Barrow in Furness, England. Studio now defunct, grandparents died and this photo given to me by grandfather (before, of course). Oh my… who knows when the photographer died etc. and what happened to his photos. By the way – love Opal’s photo – simply delightful.

    • Barbara Schenck says:

      Celia,
      You and I should talk. I have relatives who had photos taken in Barrow in Furness, too, at more or less the same time. And I bought an album on ebay of those photos. Who knows — we might have connections!

    • Judy G. Russell says:

      Celia, for works like yours created in a different country, the rules are pretty close to the same, but I’d look at the bigger more comprehensive chart at Cornell. The link is here.

  4. Judy – Thank you! I’ve wondered about this, but unfortunately have not been able to find a good, clear explanation until now! Can you tell me, does this also apply to studio photographs that do not have a photographer’s stamp? Thanks again!

    • Judy G. Russell says:

      Cynthia, this same date-and-published-or-not schedule applies to anything that can be copyrighted, so yes, it applies to any photograph whether it has the stamp or not.

  5. A couple of questions for you.

    Let’s say a photo is in public domain. You have what is known to be the only copy of a photo of your great grandfather. No one else has a physical copy. Is there any way to restrict usage of the image (other than not publishing it or sharing on the internet) by anyone else? Or is it fair game once made public?

    And other twist on the same thing. A digital version of a photo is shared on eBay. The owner is selling it. The image is in public domain. Does that therefore mean that the owner can place no restrictions and anyone who sees the photo on eBay can use the photo (in say, a blog post)?

    I would imagine secondly, that there are some restrictions if trying to use a digital image for commercial purposes. Say for instance, someone grabs the digital copy of a public domain image from a seller on eBay. Then he reproduces it and tries to sell copies. Is that breaking the law or anything else?

    Thanks in advance! Copyright is a very complicated thing!

    Marian

    • Judy G. Russell says:

      Marian, both of those questions are already in the queue for answers in this “occasional series on copyright.” I’ll give you a heads-up when the answers are posted.

  6. Kyla Cromer says:

    Thanks, this is great. (Except for being bad news for most of us!) Since it’s so complicated, though, I wonder if you’d edit the chart to indicate four digit years? Thanks!

  7. Anne Tanner says:

    I just read through the whole Library of Congress site on this subject and I’m amused by the last couple of paragraphs, which say that if you have trouble proving ownership and publication of a particular photograph, anyone who might decide to sue you for using that photograph will have equal trouble proving it. I guess the copyright law is like the tax laws–deliberately set up to confuse. At any rate, that’s my great-great-grandfather right here in this portrait and I AM going to use it in my family history!

    • Judy G. Russell says:

      And that use might well qualify as a fair use (more on that on another day) depending… My concern is particularly with photos where the photographer had a commercial operation. Those records may very well exist and then there’s a very real risk.

  8. Thank you, Thank you… I have been after supposedly cousins on ancestry.com who have taken my pictures and put them in their trees. My mother took the pictures and they came to me & my brother by inheritance. My web page where these photos are have a note on it saying they are mine and to copy is illegal. You have given me more information on how to handle this, I hope.

    Thanks for writing about these issues.
    Nettie of Nettie’s Genbits

    • Judy G. Russell says:

      I gather from your comment that you host those pictures on your own website, in which case yes, you’re right, they are violating your copyright (inherited from your mother) unless a fair use exception applies (and it might). If you were the one who put them on Ancestry, the limited license given Ancestry to use images might lead to a different conclusion.

      If this bothers you enough that you want to follow up, you can contact Ancestry and inform them of the violation. But always consider whether it’s worth it in the long run. Those supposed cousins — or others like them on Ancestry — might have something to offer in return… Perhaps you might use this info to ensure there’s credit given to your website rather than to get the photos taken down.

    • TC says:

      Annette – I know of people who have been contacted by Ancestry for copyright infringement by ‘taking others photos’ – they will contact the owner of that tree, and ‘ask’ them to remove it or they will delete them, and possibly the owner (one that I know of so far, but I don’t know the particulars on that, I suspect the ‘owner’ got testy with Ancestry on the request) – and anything on YOUR website (barring the other information that Judy gave us) is yours. Personally? I would watermark ANYTHING I put up. Sure, those knowledgeable can remove it, but at least you have a way to prove for most that they took it.

      • JWG says:

        TC, the copyright owner does not have to “get testy” with Ancestry. It is simply a matter of following the procedure detailed on Ancestry’s Legal page. I’m one of those copyright owners who follows the procedure to have unauthorized copies of my original photos removed from the trees – but more importantly, from Ancestry’s server which only Ancestry personnel can do. Tree owners merely remove a display or hotlink.

        As far as whether or not it is worth doing (enforcing my copyrights) because I might get something in return. Nearly three years after filing my first claim to Ancestry, getting something in return has yet to happen. Honest. “Sharing” has become a one-way street in some corners of the genealogical community.

        • Judy G. Russell says:

          Remember of course: this only applies to photos that are still protected by copyright and where you own the copyright. Hard to enforce something you don’t own the right to!

  9. Paula Williams says:

    This is all a ploy to get me to take down my Flickr site and any potential unflattering photos of you, isn’t it? Tough noogies, it stays!!!

    • Judy G. Russell says:

      (a) You’re a member of my family. By definition, that makes you judgment-proof, so why worry?

      (b) There aren’t any photos of me taken after the age of 18 months that aren’t unflattering.

  10. Bernice Bennett says:

    Thank you very much. This is a helpful article for those of us with old original photos. I definitely thought that as the owner of these photos, I had the legal right to make as many copies as I wanted.

    • Judy G. Russell says:

      Glad to help, Bernice. The issues are so much more complex than just who has a copy of the picture, aren’t they?

  11. Myriam Espritt-Steptoe says:

    Thank you for this article I found it more than helpful and interesting .

  12. Andrea Dietze says:

    You’ve opened my eyes to a whole new copyright wrinkle with public libraries’ photograph collections. Those of us in Library Land need to pay attention. Thank you for the clear, concise, and thoughtful post.

    • Judy G. Russell says:

      Andrea, for libraries and archives, I can’t recommend enough the link towards the end of the post to the copyright info from the Library of Congress. It’s a good solid common-sense approach (putting the onus where it belongs, on the user) with enough guidance for librarians to be able to steer patrons in the right directions.

  13. In the process of copyrighting and publishing a book I created, I was advised that if a copyright request is not accompanied by placement of a copy of the related work in the LOC, it is futile to prosecute and win a judgment against a violator of one’s copyright. I would like to see discussion about the pecuniary value of holding a copyright.

  14. Ginny R says:

    This is very helpful legal information. However the practical matter is that no one will be tracking what happened to a photo from 1900, especially if the rights were handed down to a relative. Also this only applies to photos with identification from the studio, correct? If there is no designation from a photo studio, then the photo can be used freely. How can the determination be made that a photo has a copywrite? For example, I am a photographer, and have taken professional photos of family members, but gave them the photo, negative & rights. In trying to print copies myself I have hit reprint locations that refused to do reprints based on the assumption that they looked professional, and therefore you do not have a right to additional prints!! Hogwash. Proof of ownership of rights is needed.

    If you did use a photo someone is tracking, the first step is they ask you to remove the photo, so take down/stop using the photo and politely ask on what grounds do they have ownership. If you are going to use a photo from a book or other publication method, request permission first and include a reference to the owner. Be realistic, not afraid.

    I hate to think that an article like this might cause people NOT to share old family photos for fear of being sued or going to jail. There is already a comment posted here that librarians are going to limit copies of photos. Really? Then we might as well let those items be destroyed since they effectively cannot be shared except to those who can walk into that library and personally view it.

    • Judy G. Russell says:

      This absolutely does NOT apply — as a matter of law — only to studio photographs. It applies to absolutely any photograph, including the iPhone snapshot you just took in your backyard and put on Facebook. Being realistic is the right way to go — any use of an old photo is a balancing act between the risk of being sued and the likelihood that a rights holder will sue you. But being realistic does NOT mean burying our heads in the sand and imagining that the law isn’t what the law really is.

  15. Ginny R says:

    Why do people want to restrict usage of old family photos? Especially when people say ‘I have the only known copy of my great grand parents, and I have the copyright and don’t want anyone to have a copy,’ I don’t understand. What’s that about? How selfish. No different than the libraries that lost funding and are destroying their old records — it’s mine and no one else can have them, not even a copy.

    The best is when someone photographs a headstone from a cemetery, then says there is a copyright. Like no one else on the planet can take a photo of that same headstone? Let’s be genealogists and share, not hoard and pick petty legal battles.

    • Judy G. Russell says:

      I’m all in favor of sharing. As a matter of fact, I strongly recommend the use of Creative Commons licensing especially for tombstone photos. (That says anybody can use this image, but give me credit for the work I did in taking it.)

    • -A says:

      I agree, however, I do believe people should ask before taking a photo. It’s just like if you’ve spent the past 20 years and a lot of money extensively filling out your family tree and a distant cousin, who just started researching yesterday takes all of your info and puts it in their public ancestry.com tree. Of course, family should share info with other family memebrs, but before taking something, ask first, just out of respect for the person who has worked hard to get this info. It seems like some peolpe are willing to take take take without even acknowleging all of the hard work that went into something. A family member recently gave me a few precious photos and before I decide to make them public, I will get her permission to do so out of respect for her first and I will acknowledge that she gave me the photos. This is aside from rules and copyright laws. It’s about basic respect.

    • Kerry says:

      right on !!

  16. Lena Holland says:

    I am fixing a book about us cousins and want to put old studio photos of some of my uncles in it. These are the only pictures I have of them. I can’t locate the photographers. I would be glad to ask permission to copy them, but I can’t find them. Is the Library of Congress working on changing some of these copyright laws of old photos? It would certainly be helpful for conscientious people!
    Thanks.

    • Judy G. Russell says:

      I sure wish I could tell you that this problem — called orphaned copyrights — is on its way to being fixed. But the Registrar of Copyrights (which is within the Library of Congress) did a major report to Congress on this problem asking for a legislative solution six years ago… and nothing has happened to move it forward.

  17. J. says:

    Greetings from Toronto. May I add two comments here? As a new subscriber, in reviewing the thread on copyright, I am not sure that anyone has mentioned the fact that different countries have different Copyright legilsation and regulations than those of the United States of America? The rules here in the Dominion of Canada, while similiar in nature are different. Just this week the Supreme Court of Canada issued a ruling that deal with five parts of our Act and effects everything from artist / creator fees for downloading music to your ipod etc., to an much expanded intrepretation of the concent of “fair useage”.
    The second thought is can anyone provide a Case Law citation of a copyright holder who has sued, or even brought suit against a genealogist over use of an image?
    Food for thought on a Sunday morning in this hot, humid drought in North American while England is being flooded out …. but global warming does not exist, right – LOL. CHEERS! J. Brian Gilchrist

    • Judy G. Russell says:

      Greetings to our neighbor from the north! You’re absolutely right about the different laws, Brian, and I had mentioned that in one post on Australian newspaper articles but should re-emphasize it. And I’ll have to take a particular look at your recent Supreme Court case! As for anybody being sued over an image, few cases are brought — most situations will settle without litigation. But being aware of the rules and of fair use principles will avoid even the threat of litigation.

  18. Susan O'Neill says:

    Considering eBay has literally “thousands upon thousands” of old (personal and unpublished) photos posted for sale on any given day, I am a bit bewildered by this copyright law. If I am interpreting the law correctly, it states that then unless all these eBay seller’s have explicit copyright consent (which we know they don’t) from the creator of the image (or heir) , then they are violating the copyright law by posting the image and selling it?

    • Judy G. Russell says:

      Technically, yes. That’s copyright violation (though in any individual case there’s always the chance that it might be considered fair use). The fact that nobody is likely to enforce it is a detail.

      • Susan O'Neill says:

        Thank you for your timely response. If you don’t mind, I have another question? Not only is there an enormous market on eBay for buying and selling vintage photos, but there is also a significant market for individuals to sell “copies” of some of thier collected photos. If a person came forward and were able to show that they are the rights owner of an unpublished image, do you know what kind of legal award they could expect if they sued the infringer ? Are they entitled to ask for punitive damages?
        My guess is that unless the seller obtained a significant profit off the photo and/or it was widely publicized, it is probably not worth the time and money to file a suit.

        Thank you again,
        Susan

        • Judy G. Russell says:

          (a) You can’t sue at all unless you’ve registered the image with the Copyright Office.

          (b) Statutory damages for a violation range from $750 to $30,000 “as the court considers just” — and that will take in all kinds of factors, such as the willfulness of the violation, the nature of the copyrighted item and its value to the copyright holder, etc. If the violator can prove he/she didn’t know it was a violation, damages can be as little as $200; if the copyright owner proves the violation was willful, damages can be as much as $150,000.

          (c) You can’t get statutory damages — only your actual damages — until you registered the copyright in advance.

          My guess is most of these cases involve unregistered works, if they were registered damages are going to be at the far low end of the scale, and the combined cost of registration and the filing fee for a case in federal court is more than could be obtained via a lawsuit.

  19. Linda Gilmore says:

    I just found your very helpful email. How complicated this discussion is. At any rate, here are my questions.

    (a) I have a picture of my aunts and uncle in a one room school picture taken in 1925 or 1926. From your discussion, it seems that this photograph was published as it was offered for sale to several families. In this area, there was one commercial photographer although there is no identifying feature on the picture. Does this picture fall under the third category line in your chart? What does the phrase “published with notice mean?”

    (b) I also have a few earlier pictures before 1923 that would not have been published. The pictures were of one family. These pictures it seems fall under the fifth category line. Again this lone photographer in the area died in the thirties, so if he took them, they are in the public domain. Right? This was and still is a very rural area, so I am making an assumption that this lone photographer took them.

    Can you comment? Thanks so much.

    • Judy G. Russell says:

      (a) A single photo offered for sale to many people could very well be regarded as published. “Published with notice” means with a copyright notice attached to, that is printed on, the item. So a published item with no copyright notice done in 1925-1926 should be in the public domain. There’s always the chance that there was a notice and it was cut off, or that the photo wouldn’t be regarded as published, but then the whole area of fair use comes into play and if you’re planning to use this image solely for non-commercial purposes you likely fall within the fair use doctrine anyway.

      (b) Any photo taken by a photographer who died more 70 years ago would be in the public domain, yes.

      • Barbara Fultz says:

        I have some photos of ancestors and want to put them in albums that will be given to my children. So are very old and look like professional photos. I do not plan to put them on the internet, only want to make copies to give to the children. Old photos don’t last forever.
        Can I make copies for this use?
        Thank you for any help re this.

        • Judy G. Russell says:

          Barbara, there are a lot of variables here. I’m assuming that there are no studio names on the photos, so no-one that you can try to contact for permission to copy the images. If that’s the case, then all I can say is that if I were in your shoes and I was fairly confident that (a) there was no way to find the original photographer, (b) the images are really “very old” (enough that the photographer could well have died 70 or more years ago) and (c) the photos would not be copied beyond a single copy for each child, I would do it — I would make one copy for each of my children. I might end up in hot water — but the odds are in my favor. This is not legal advice, of course. Just my own sense of what I would do.

  20. G says:

    Thanks for your very informative article. Here’s a scenario to consider:

    Let’s say someone in the United States wants to reproduce an old family photo of mine in a book that will be published in the US. The photo was taken more than 100 years ago in Hong Kong, at the time a British colony, and the name of the studio where it was taken is not known. Is this photo in the public domain?

    • Judy G. Russell says:

      This is a really complicated question, because it depends on the laws of several nations. Most likely, the law that would apply would be the law of Hong Kong, since that’s where the photo was taken. Hong Kong law provides that copyright lasts 50 years after the death of the creator or 50 years from the end of the year in which the work was first created or made available to the public if the identity of the creator is unknown. Given the facts as you outline them (no identifying information on the photo and more than 100 years old), then under Hong Kong law the photo probably is public domain. The answer might be very different if the law applied was US or British law. And there’s no guarantee how a court would decide the question of whose law applies. My own guess would be that it would be Hong Kong law, but you’ll have to make your own judgment and decide whether the risk is worth it if you’re wrong.

  21. G says:

    Thanks again for your reply. Let’s say that the family photo appears in an e-book and is also accessible via Google Books. Is there anything I can do to prevent that photo from being downloaded, manipulated or enhanced with photoshop, and re-sold for commercial gain? Obviously if it’s in the public domain, they would have every right to do so, but somehow that still feels like exploitation just because that photo has been kept in the family for generations.

    • Judy G. Russell says:

      I sure understand your uneasiness. But the fact is, if the item is in the public domain, it’s in the public domain. Unless publication can be shown to be actually harmful to living people today, there’s not even a legal leg to stand on to stop its use.

  22. Fiona says:

    Thank you for such an informative article. Having recently paid over $300 Australian for the copyright of my daughter’s graduation photos it is a topic of interest.

    Interestingly, copyright is different in different countries, it would be worthwhile checking if you have photos from the UK and other areas.

    I look forward to seeing the article of fair and reasonable use.

    • Judy G. Russell says:

      The rules certainly are different in different countries, Fiona, but because of international treaties the similarities are generally greater than the differences! But folks should review the law in their own home countries to be certain.

  23. In short, a designated heir, family or not, owns works and images created by their legator-bequeather-ancestor. Complicated to trace and enforce.

    As a Canadian editing for U.S. based Wiki and Gutenberg, both of which use text and images, I tried to summarize international copyrights comprehensibly on my aneyespy blog. I have not found the outcome of a recent proposed change in Canada. Not front page news here.

    • Judy G. Russell says:

      Correct. Copyright passes like any other property right, either by will or intestacy, in the United States. Complicated? You betcha.

  24. Frosty says:

    Interesting stuff.

    If all this is true….
    A few of the ‘unpublished’ 125 year old studio portraits that I own wont be in the public domain until 2026! i.e. Because the photographer (C.C.Curtis) didn’t die until 1956.

    I doubt that Curtis ever even copyrighted his published work. e.g. Multiple copy souvenir photos, for the general public.

  25. Frosty says:

    I’m not really too concerned with someone trying to sue me for posting a 90+year old family photo. What concerns me more is that websites like Flickr and Blogger might become hypersensitve to this issue and start a wholesale banning of such ‘unpublished’ photos. e.g. In much the same way Walmart refuses to make copies of very old family studio photos or the way YouTube became overly sensitive to copyright issues (For example taking down videos over supposed copyright issues over background music when the posters themselves owned the rights to that music).

    Question: What happens if the studio photographer never designated a heir to the copyrights? e.g. If the closest living relatives are the grandchildren, would they all equally hold the copyright ownership?

    • Judy G. Russell says:

      The terms of use are always a potential issue. As for your question, if there’s a will, it probably has what’s called a residuary clause (“all the rest and residue of my estate, I leave to the Home for Wayward Cats”) and that’s what would control. If there’s no will, then the heirs at law in whatever percentages or proportions the law of the state of residence directs.

  26. alexis says:

    This has been the absolute most helpful resource so far regarding all the questions I have. Allow me to add to the ongoing discussion, hopefully someone will know what I’m dealing with.

    I’m an avid collector of old slides. They are almost all images of American family life from the 40s-70s. As I began archiving them digitally I also began playing with the images. I’ve started a series of heavily edited images based on these slides. The original image is still very much there though. I really want to use some of the more amazing images I’ve worked and sell the prints. They are absolutely beautiful. The images are (because they are slides) very likely the originals and the only ones in existence. None were taken by professional photographers etc. They were purchased through auctions and estate sales for the most part, however, I have no way of getting in touch with the families pictured. (I wish I could!)

    I want to be respectful but I also love the images too much to let them sit and collect dust. I’ve seen tons of t-shirts and bags and screen-printed items that obviously use old photos (yes many are faked but not all).

    After reading this thread I’m pretty sure that I can’t use any of the images but I’m still looking for a loophole because of the loss I feel! I’d really appreciate the advice.

    Thank you!

    • Judy G. Russell says:

      Alexis, you’re absolutely going to need to talk to an attorney to get legal advice you can rely on (you absolutely can NOT rely on what you read on the Internet!!!), but do consider the issue of what’s called transformative use. You and your lawyer may be able to construct an argument that your use qualifies as a transformative use and, therefore, is a fair use under the Copyright Act. But I repeat: you need to talk to an intellectual property lawyer about this. (See my Rules of my road post from February 2012.)

  27. alexis says:

    I thought as much. I always begin with the internet as my starting point and branch out from there to debunk and fill in blanks. I think it will definitely be worth looking into further with a lawyer. If I get any helpful information I will relay what I’ve found.

    Thanks so much!

    • Judy G. Russell says:

      It’d be terrific to hear what your lawyer has to say, Alexis. Good luck — it sounds like a wonderful project.

  28. Ian says:

    Unbelievable. We live in the United States of America, the land of the free and home of the brave, and have allowed copyright laws to balloon from the original 7/14 year range to the draconian pile of ludicrousness you waded through in this article. Let’s see our Congress enact some copyright reform sometime soon and let Walt Disney and Mickey Mouse (the reported impetus for the massive extensions to US copyright law in the 20th century), as Marie Antoinette said, eat torte.

    • Judy G. Russell says:

      I certainly tend to agree that copyright length is.. shall we say .. a tad generous… particularly since so much of the benefit goes not to the person who created the intellectual property but to his or her heirs.

      • JW says:

        Thanks up front – this is a very helpful site. In my case, the length is a good thing. The year of death+70 years gives me the freedom to do as I please with my grandfather’s unpublished transparencies, something he was in the process of doing, 35 years after taking the images, when he passed away 40 years ago. It’s an honor to try to finish what he started.

        There are other images he did have published in a book in the 30′s. The book copyright has long expired but what about the images, for which I have negatives? If I make prints using slightly more of the negative content, is it the same as being an unpublished image? Technically, it is different…

        • Judy G. Russell says:

          I’d be hard-pressed to agree with you on there being enough new content in the reprinted image to qualify for a new copyright, JW. I’m not sure I buy that at all.

          • JW says:

            Fair enough; I realize it’s splitting hairs a bit and if I get any other feedback, I’ll certainly share it here. It would be convenient for me to treat all of the images the same going forward in a 30 year window.
            But assuming the copyrights for the book-published images have expired, new images made from original negatives will still be far better than other’s efforts to use images from the original book or low-res images I might put on line. I can certainly work with that sole advantage if need be. Thanks again.

          • Judy G. Russell says:

            Remember that if you’re re-publishing the old photos in a new book, then the new book is still copyrighted if it has the needed originality –which is usually from the organization, your selections, your text, etc. It’s just that those earlier photos by themselves individually wouldn’t be copyrighted.

  29. Sidney Levesque says:

    My question is: If the studio photographer, who for example made and sold photos in the 1890s, didn’t explicitly state in his will that he was leaving the copyright of the photos to his heirs, can they come back and sue someone decades later? If the photographer’s will doesn’t mention copyright, then it would seem that the rights died with the photographer. Or is that now how it works?

    • Judy G. Russell says:

      Nope. Not at all. First, if there’s a will, it’ll have what’s called a residuary clause (“all the rest and residue of my estate I leave to the rest home for wayward cats”) and the residuary legatee(s) (whoever gets that part of the estate) would own the copyrights. If there isn’t a will, or the will somehow doesn’t have a residuary clause, then it’s property that passes by the laws of intestacy of that state, and the photographer’s heirs-at-law own the copyrights. If the photographer didn’t have any heirs, it’s usually the state that becomes the heir-at-law under a legal principle called escheat.

      The key here is that, for the entire period that copyright lasts, somebody owns those rights. They don’t die with the photographer at all.

      • Sidney Levesque says:

        Thank you! Very helpful information.
        Unless I am making money off someone else’s photo, I think I am safe to continue to attach the images of old photos to my family trees on the Internet and to Findagrave.

        • Judy G. Russell says:

          “Safe” is one thing. But if it really is “someone else’s photo,” and you’re copying it, not just linking to it, please consider the ethics, not just the law. It’s just nice to ask permission, no?

          • Frosty says:

            But for the very old photos, how can we even know who to ask for permission?

          • Sidney Levesque says:

            If the photographer has been dead for 70 years then I do not need to ask permission.
            Also, the way most genealogists are using these photos would be “fair use.”
            The fair use of a copyrighted work is allowed for scholarship or research and is not an infringement of copyright.
            That’s what we are doing – family RESEARCH. Further, my family trees are for nonprofit, EDUCATIONAL purposes.

          • Judy G. Russell says:

            Family research is not a license for wholesale copyright infringement. You have to look at the entire fair use test and consider all of its components, not just one.

  30. Frosty says:

    This maybe a little off topic…
    I own the original glass negatives to a set of 100+ year old photos. (These are photographs of people in my hometown/area.)
    The photographer died more than 80 years ago. I am fairly sure that these photos were done as part of the photographer’s job for a large U.S. company (This company has been sold and merged since then). These negatives apparently were in private hands for decades before they were sold at an estate sale. I suspect that these images are unpublished; although I’ve seen one image from the same ‘photo shoot’ that was published 100 years ago. i.e. It’s the same people and same local as in one of the pictures I own, but the people are posed sightly differently.
    From what I’ve read about ‘works for hire’: “The duration of copyright for works for hire and for anonymous and pseudonymous works is 95 years from publication or 120 years from creation, whichever is shorter.”

    Question: So if these could be considered unpublished ‘works for hire’, does that mean the copyright lasts 120 years?

    • Judy G. Russell says:

      Answering the specific question (“if these could be considered unpublished ‘works for hire’, does that mean the copyright lasts 120 years?”), the answer is yes (120 years from the date of creation or 95 years from first publication). But there are an awful lot of “ifs” in that question. If the photographer took them as an employee and not as a contractor, if there wasn’t some side understanding about copyright, if they weren’t published… Lots of room for investigation there that could put these into the public domain, for sure.

  31. Diane Glover says:

    OK…so how does this apply to written correspondence. I have letters between a man and woman dating from 1895-1920…who courted..married..and had a family. None of their children survived with any offspring. I’ve been researching the family to look for any direct heirs. There are none…there are cousins of the authors…who may have descendants…. these peoples story is beautiful…I’d love to publish it…but am not sure about some third coursin twice removed showing up for a piece of the action…I would love to use actual letters in the book and their picture ….but it sounds like I just need to give this dream up….confused and disappointed..

    • Judy G. Russell says:

      This was addressed in the blog post “Copyright and the lost letters,” Diane. The problem you have here is compounded, for sure, by the fact that you don’t have any direct descendants to ask for permission. I can’t tell you you’re likely to be sued if you do use these letters — but I also can’t tell you for sure that you won’t. Your one big hope for a totally clear path would be if the letter writers died more than 70 years ago. Then the copyrights would have expired. Otherwise, you can always write this and not publish it until that much time has passed. You can choose to take the risk involved in publishing any way. Or you can track down the copyright owners and get permission. Only you can make that choice.

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  33. Craig Hansen says:

    If you have photographs from a family album that is 100 years old and is just taken by a bystander or friend or relative.
    (nonprofessional) Can you sell copies posters etc?
    Can you copyright.
    I can’t imagine that old photos of the 1906 earthquake or Cliff House with people in the foreground have the ok of those people to publish or use otherwise.

    • Judy G. Russell says:

      You don’t generally need a photo release for someone who’s dead. Seriously, unless the photo is going to be used for some commercial purpose AND the person’s estate has some economic interest in the likeness (think Elvis here or Marilyn Monroe), you can use the photos even commercially if they’re out of copyright.

  34. Stewart Darrah says:

    So, who owns copyrights, if any, of snapshots of my parents and their families taken by my grandparents? Would the rights belong collectively to my cousins and I, now that my grandparents, parents, and their siblings are mostly gone?
    Thank you.

    • Judy G. Russell says:

      If your grandparents left a will, then the copyright went to whoever received the residuary estate under the will (“and all the rest and residue of my property I give to…”). If they didn’t leave a will, then whoever their heirs at law would be under state law when they died, etc., on down the generations.

  35. Jes Lindsey says:

    Help,I am confused with the copyright ownership laws. I have a picture of my Great-Grandmother taken in 1890 that was given to me as a child by my Great-Grandfather (This is an original and only copy of this picture). The picture has the name of the photo studio that took the picture in 1890, but, I have the original sales receipt for the picture. It states that the picture belongs to my Great-Grandfather with all rights at point of purchase, and is marked paid in full. Therefore, who has a right to said picture, the photographer or the purchaser? The sales receipt makes it clear that when the picture was paid for all rights were given to my Great-Grandfather that is why I am confused. I do photo restorations and would like to use my Great-Grandmother picture on my company’s website, but only if I have the rights as the owner.
    Thank You,
    Jes Lindsey

    • Judy G. Russell says:

      Jes, yours is a specific fact-sensitive legal question and I don’t give legal advice here (see Reprise: Rules of my road, posted 26 April 2013)– we just chat about legal and other matters.

      All I can tell you is what I’d do if I were in your shoes. I’d look at that receipt that said my Great Granddaddy bought “all rights” (which, absolutely, under the law can be sold, including copyright), and I’d be feeling mighty confident that Great Granddaddy owned the copyright to that picture. Then I’d think about the fact that my Great Granddaddy gave me the photo, and sigh that I wasn’t old enough to ask Great Granddaddy to sign over the copyright to me when he gave me the photo.

      Then I’d look to see when the photographer died and, if it was more than 70 years ago, I wouldn’t worry about copyright at all because the copyright would have expired anyway.

      And if it was less than 70 years ago, the only thing I’d be asking myself is if any of Great Granddaddy’s other descendants might think I was being a whippersnapper for not sharing the copyright with them, and if I was really concerned about that, I’d get those other descendants to sign off on my using the photo.

      That’s what I’d do. Your mileage may vary.

      Does that help?

  36. dawn says:

    What about the issue of modern family portraits taken by semi-professional family members? My father in law is a photographer and I was under the impression that the photos he took of me hours after giving birth were personal family photos, I was horrified to find a a photo of me and my newborn and partner on our local community website with my hair unbrushed, face looking awful, and belly hanging out. I was half dressed! In the moments after giving birth it never occured to me to ask him before he took the photo if he would be putting it online!

    Seems like there should be rules about putting family photos online without the permission of those in the photo.

    • Judy G. Russell says:

      I understand and agree with this concern, but in general when it comes to this sort of issue, it’s not the law that will control but the rules of good interpersonal behavior. Family members shouldn’t put images of living people online without permission and, if the images do get online, they (and any websites involved) should taken them down immediately if the living person objects. The law may not require that, but politeness and good manners do!!

  37. Elaine says:

    I have thousands of slides from my grandparents. They took these slides on multiple world cruises in the 1950s and 1960s. They are both deceased for 25 years. The slides were given to my dad in the estate. My dad gave them to me. Help me understand if I could use these beautiful photos for stock photos. I hate to let these gorgeous pictures go to waste. I have scanned many of them and i would like to share his work.

    • Judy G. Russell says:

      You should be just fine here, Elaine. The slides were taken by your grandparents, so they owned the copyright. They gave the slides to your father in the estate and, presumably, all of the rights to the slides as well. And then your father gave them to you. Before using them as stock images, you may want to record the copyright on the collection with the US Copyright Office (and you’ll have to show your right to do so) because no stock company will accept them without proof of copyright.

  38. Frank says:

    I would like to make some reprints of Who’s who in baseball books I have that are before 1923. Can I reprint these books and sell them online. The who’s who in baseball book series still continue to this very day. They come out every year and I have every one back to 1916. with the exception of 1917,18,19,20,and 1921. These books are very, very scarce and I love the game of baseball and believe that baseball lovers could be able to get these books. Most of them today are in very fragile condition and will soon be gone. I would like to preserve the history of these books because of the players who represented that time in history and they should not be forgotten with all their contributions to the game. Thanks Judy for any help that you can provide me.

    • Judy G. Russell says:

      Frank, keep in mind that I don’t and can’t provide legal advice and when you’re talking about a commercial venture you really should get advice from a professional in your area. That being said, I can tell you that anything published in the United States before 1923 is now in the public domain and can be used in any way.

  39. Donna Hyora says:

    I believe copyright is not automatically granted to, say, a studio if it was not indicated copyrighted during certain periods–at least according to US laws. Merely being identified by name did not confer copyright on that entity during certain periods, unlike now when the creation of any work confers instant copyright status.

    • Judy G. Russell says:

      The charts set out in the post and a more comprehensive one from Peter B. Hirtle of Cornell University at Copyright Term and the Public Domain in the United States will guide you through those issues — but be very very cautious when dealing with unpublished materials. When the law was changed in 1976, effective in 1978, an awful lot of unpublished works gained federal copyright protection.

  40. Lorraine says:

    So… if we have old professional photos of relatives prior to 1978 (actually dating between 1900-1958) can we not copy them solely for personal use? For all siblings to have a copy?

    • Judy G. Russell says:

      ANY copying of an image that is still copyrighted is fraught with danger, even if you’re only sharing it within the family. That might qualify as a fair use, but might not. Getting permission, whenever possible, is the safest way to go.

  41. Dennis Cake says:

    I am writing a book on several people. I plan to use copies of pages of high school yearbooks. I called the schools and got their permission to use the copies of pages of the yearbook. Is their anyone else that I need to consider asking? Do I need to contact the people in the pictures or the possible photographer?

    • Judy G. Russell says:

      I can’t give legal advice on specific situations, Dennis, but you do have to work through all the possible issues here including copyright (is this material copyrightyed? if so, by whom? is this a fair use?) and privacy right issues (will anyone complain if you use a photo).

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