An original question
Reader Phyllis McLaughlin is a collector of old photographs and is struggling to balance her desire to use the photos she buys with the mandates of copyright law.
And discovering, of course, that the balance is always more complicated than we might think.
First, Phyllis is a bit uncertain as to the time period when copyright laws began and when they might impact her collected photos. She’s sure there is some time period when her finds would be free of copyright — but she’s not sure when that might be. Whenever that is, “I have the right to use any before that period any way I want to, right?” she asks.
Second, she notes that she’s recently started collecting glass negatives which, she thinks, may have predated copyright laws. And, she asks, “If I own the negatives, then I own the originals, right?”
Let’s get that question of when copyright laws began out of the way first. Because there really hasn’t been a time in America when we haven’t had copyright laws.
Remember that most of the colonies were English colonies, and followed English law. That meant that a 1710 English law called the Statute of Anne was the rule here as well as in England.1 It only applied to books, and gave the authors “the sole right and liberty of printing such book and books for the term of one and twenty years.”2
Once we became a nation, the United States had its own copyright laws starting with the Constitution itself, which gave Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”3
The first statute passed under that power was the Copyright Act of 1790. It applied to authors of maps, charts and books and provided for protection for a term of 14 years, with one 14-year extension.4 Historical and other prints were added to the statute’s coverage in 1802,5 and photographs were expressly included as of 1865.6
So we’ve always had copyright laws, photographs have been covered for a century and a half… but when does copyright protection end on those photos? What’s the time period for Phyllis where she can be sure that her use of the photos she’s acquiring doesn’t implicate any copyright concerns?
You already know The Legal Genealogist‘s answer. You’ve seen it dozens of times. It’s my favorite answer.
It depends.
And, unfortunately, American law makes it depend on a whole raft of variables. Was the photograph ever published? Did it carry a copyright notice at a time when one was required? Was it registered at a time when registration was required? Was registration renewed if renewal was required? When did the photographer die?
There’s not enough room in a single blog post to review all the possible variables. Fortunately, we don’t need to. Somebody else has done it for us. Peter B. Hirtle, Senior Policy Advisor to the Cornell University Library, produces an annual chart called Copyright Term and the Public Domain in the United States that goes through all those variables and explains how they impact the copyright status of an item in the United States today.7
It’s updated every year, and it’s even got a downloadable PDF version if you want to keep it on your hard drive for easy access at all times.
And what about the issue of negatives versus prints made from the negatives? Phyllis’ question about whether owning the negatives gave her the rights to make prints from those negatives is a great question. And here we have to remember one key aspect of copyright law:
Owning the thing itself doesn’t mean we own the copyright to the thing.
Owning specific physical items — these negatives in this case — is entirely separate and apart from owning any copyright there may be in the items. The U.S. Copyright Office explains that:
Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.8
I can buy a copy of a book — and then give my copy away, donate it to a library, loan it to a friend. But owning my copy of the book doesn’t give me the right to make more copies and sell them to others. Just because these are photographic images doesn’t change the analysis. The Copyright Office specifically notes on its website that:
In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.9
There’s no question here that Phyllis legally owns the individual copies of the photographs and the photographic negatives that she’s acquired. She can frame them, hang them on her walls, whatever she’d like for her personal use.
And — subject to my usual caveat that I’m commenting generally on the law here and not giving legal advice, and you may want to consult your own attorney, yadda yadda yadda, I personally wouldn’t hesitate to make a positive print from those photographic negatives strictly for my own personal use. I consider that the functional equivalent of making an MP3 from an audio CD I already own.10
Where it gets dicey is when it comes to making more copies, particularly for distribution or republication. Who owns the rights to reprint from negatives can be a major issue,11 as can the question of when copyright expires for such items.
Well, you already know the answer to that, right?
We’re back to it depends.
And back to that lovely chart and all of its variables.
SOURCES
- “An act for the encouragement of learning,” 8 Anne, c. 19 (1710); html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu : accessed 4 Mar 2015). ↩
- Ibid., §II. ↩
- Article I, §8, clause 8, U.S. Constitution. ↩
- “An Act for the encouragement of learning, by securing the copies
of maps, charts, and books, to the authors and proprietors of such copies, during
the times therein mentioned,” 1 Stat. 124 (21 May 1790). ↩ - “An Act supplementary to an act, intituled ‘An Act for the encouragement of learning,…,’” 2 Stat. 171 (29 April 1802). ↩
- “An Act supplemental to an Act entitled ‘An Act to amend the several Acts respecting Copyright…,’” 13 Stat. 540 (3 March 1865). ↩
- Peter B. Hirtle, Copyright Term and the Public Domain in the United States, Cornell Copyright Information Center (https://copyright.cornell.edu/ : accessed 3 Mar 2015). ↩
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 3 Mar 2015). ↩
- U.S. Copyright Office, “FAQs: Can I Use Someone Else’s Work? Can Someone Else Use Mine?” (http://www.copyright.gov : accessed 3 Mar 2015). ↩
- The law isn’t 100% clear on whether this format-shifting is a fair use, but the federal court in RIAA v. Diamond Multimedia, 180 F.3d 1072 (9th Cir. 1999), said it wasn’t a copyright violation, and that’s good enough for me in my own decision-making. ↩
- This is the issue that’s being litigated right now in the case of the work of 20th century photographer Vivian Maier. See Randy Kennedy, “The Heir’s Not Apparent: A Legal Battle Over Vivian Maier’s Work,” New York Times, posted 5 Sep 2014 (http://www.nytimes.com/ : accessed 3 Mar 2015). ↩
On the other side of the coin, am I correct in thinking any prints made from some beautiful, hand-painted glass slides a fried and I found in the “stacks” of the Seattle Branch of the National Archives are probably in the public domain? The original photographs were taken before 1946 by a federal employee of the then Columbia Forest Reserve, now the Gifford Pinchot National Forest.
If they were taken by a federal employee in the course of his or her official duties, then they HAVE to be in the public domain: US copyright law expressly provides that US government works can’t be copyrighted.
There is another important qualifier I would add to this:
If you are a government CONTRACTOR photographer, the government still owns your work AND at least in THEORY it’s in the public domain.
The Library of Congress’s Prints and Photographs Department is crammed full of works taken by contracted professionals that were not “government employees.” Their works are still public domain.
I knew a photographer (later called “imaging specialist”) for the Department of Defense–note, not the Army, Navy, etc. He told me that, at certain times, he was taking photographs of classified projects where the photos were only disseminated on a “need to know basis.” The DOD still owned the photos, but even he didn’t know if (or when) I could ever gain access to any of them, never mind publish them. He was such a high-end technical photographer that he was supposedly even “loaned out” to other agencies for photo work. He used to maintain separate sets of camera gear for separate work assignments (including his own hobby photography), and was extraordinarily conscientious in turning over the negatives/slides (and later digital files) to only the properly appointed recipients.
So, ONCE AGAIN, “it depends….”
Not exactly. If you are a contractor, and not an employee, then unless the contract expressly transfers the copyright to the federal government AND the government licenses it for public use, that image is NOT copyright free. Only works by a federal employee for the federal government are copyright-free without something more being done.
Copyright of photographs – one of my favorite confusing topics! Would you please comment on what constitutes “published” with respect to photographs? Are studio cards “published” works? How about picture postcards, like the ones that have a photograph of the family on one side with a place for the address, stamp and message on the other? I have seen some of those that were actually used that way, complete with postmark. And how does “work made for hire” apply to studio photographs from say 1910? That’s a nice chart but without knowing how “published” and “works made for hire” are defined with respect to photographs, the topic is still rather murky. Any additional insights would be very much appreciated! Thanks, Judy!
Skip
Added to the topic list for the future, Skip!
Thanks, Judy!
And those musty boxes of hundreds of old photographs found in the inherited estate of a third cousin twice removed?
You know the answer: it depends! If that third cousin twice removed was the photographer, and you’ve inherited his estate, you may well have inherited the copyrights as well!
I saw that coming!! Since probably nobody knows who took the photos…?
Wait, wait… don’t tell me… It depends!
Judy, thanks for the nice call out.
I might qualify one part of your answer. You say “Owning the thing itself doesn’t mean we own the copyright to the thing.” That is correct, but it also does not mean you do cannot own the photograph.
As you note, today transfer of a physical object by itself does not confer copyright. But that was not necessarily true prior to 1978. As the House Report to the 1976 Act notes, “the bill would change a common law doctrine … [under which] authors or artists are generally presumed to transfer common law literary property rights when they sell their manuscript or work of art, unless those rights are specifically reserved.”
I have seen cases that involved works of art but I have never seen one that involved a manuscript. And who knows if a court would consider the glass plate negatives to be “manuscripts or works of art.” But there is at least a chance that if someone bought the negatives from the copyright owner prior to 1978, they also acquired copyright in the photos.
In short, the best answer is it depends. 🙂
>> In short, the best answer is it depends. 🙂
Love it.
Do you have a “macro” set up to automatically enter the phrase “It depends”?
You already know what I’m going to say in response to that one, right? 🙂
Judy,
I want to let you know that your blog post is listed in today’s Fab Finds post at http://janasgenealogyandfamilyhistory.blogspot.com/2015/03/follow-friday-fab-finds-for-march-6-2015.html
Have a great weekend!
Thanks so much, Jana!
I wanted to tell you that I’ve included this post in my NoteWorthy Reads for this week: http://jahcmft.blogspot.com/2015/03/noteworthy-reads-5.html
Thanks so much!
Great post Judy, we all need this information! Have bookmarked the link.
I’ve just found a booklet written by my Great Grandfather in 1920 for a family reunion. In this booklet were 4 songs (music and lyrics) that he wrote for the reunion. How would I find out if they were copyrighted in 1920? If the family decides to release them should they be copyrighted? Would photographs from the 1930 showing my father and co-workers in the coal mines be owned by the mine company?
(a) From what you’re saying, the songs were published in the US before 1923 (distributing that booklet likely counts as publication) so the songs are public domain now and anyone is free to use them; no-one could copyright them now. (b) It depends: who took the pictures? why? were they ever published? Without answers to those, it isn’t clear.
The picture looks like a professional one with more than 25 people standing on ladders in the opening of a large mine in Tenn. My sister and I were going to use it as the cover of family book. Just wondering if you are going to be on the cruise to Alaska in August? If so I am so looking forward to meeting you.
Unfortunately, without knowing exactly who took the photo, why, when, and whether it was ever published, you can’t be 100% sure if it is or isn’t still under copyright. I would try to contact the historian or librarian or archivist of the mining company and ask if it’s theirs. Otherwise, you’ll have to make your own decision on whether or not the use you’re planning is fair use under the law. (I can’t and don’t give legal advice, so you’re on your own on that one!) And yes I will be one of four speakers on the cruise — looking forward to it!
Being a collector of old negatives and slides that were taken 40 years ago, If I purchase slides/negatives and decide to sell the pictures, or sell the negatives later, would I have to have transfer of copyright>
Example-Buy a collection of original Beatles negatives from 1967; decide to sell in a few years. When they are listed at auction, potential buyer says they were his original negatives that were taken from him in 1973. I had no idea when I purchased them. Buyer states that he had negatives published in a book, from 35 years ago. Has the statute of limitations passed, and thus I couldn’t sell them? Or, if I die and leave them to my kids-could they sell them? How do I know if I buy negatives without transfer of copyright that I cannot sell duplicates?
Please advise
On a general level, for genealogical work — and that’s all this blog covers — it’s important to remember that ownership of the thing does not imply ownership of the copyright and that it’s possible to legally sell any copy of a thing you legally own (such as a book you bought) without selling any right other than to possess and read the book. Your question seems to go more to the question of whether you legally own the thing, and that’s a legal question for which you need legal advice — and you can’t get that except by consulting a licensed professional in your state.
So my great great grandfathertook pictures with his own Camera in 1925-26. Never published. Negatives passed to my grandmother, to my parents, to me. Do I own the copyright? Can I publish them?
(a) Whether these can be copyrighted by anyone depends on when your great great grandfather died. If he died before 1948, the copyright has expired and no-one can copyright them; they’re in the public domain. See Peter Hirtle’s chart at the Cornell Copyright Center, Copyright Term and the Public Domain in the United States. (b) If they are copyrightable at all, the owner is the person who would inherit the rights under probate law. You’d need to determine if (1) he left a will mentioning the negatives or (2) he left a will with a residuary clause (“all the rest and residue of my estate, I leave to…”) or (3) he left no will (so who were his legal heirs at the time of his death?). Then you’d have to trace it down from those heirs to you. (And remember that if your grandmother had siblings, they may have rights; if your parent had siblings, they may have rights; if you have siblings, they may have rights. With all those generations and their descendants, it’s probably not just you.)
I purchased a storage locker and there were thousands of slides I am now selling the actual slides not making copies but selling the slides itself
Can I get in trouble?
Presumably, you purchased the locker in a perfectly legal way and the seller had a perfectly legal right to sell it and its contents. If so, and you are clear that you are only selling the item and not making any promises about the rights to the item (copyrights, that is), I can’t see any reason why you’d get into trouble.