… copyrights, that is …
Reader Mindy Jarrett just ran head-first into one of the most common — and yet most perplexing — copyright problems to plague genealogists.
The problem of the difference between ownership of the thing and ownership of the rights to the thing.
“I found an image of one of my ancestors for sale on Ebay (of all places!),” she wrote. “The listing… says that it’s a press photo from 1965, so I assume the photo was given to a local newspaper for an article, and (the listing site) somehow acquired the photo from the newspaper. My question is: Does this site have the right to sell this photo now? ”
And, she noted with some chagrin, she wasn’t entirely certain it was a copyright question at all.
Well, it is and it isn’t. Which — The Legal Genealogist knows — doesn’t help a whole lot, does it?
Let’s back up here a minute and do a quick review.
First and foremost, we need to remember what’s eligible for copyright protection and what isn’t. Copyright law protects “original works of authorship fixed in any tangible medium of expression.”1 That definition doesn’t include “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”2 But it clearly would include a photograph.
Second, we need to understand that the fact that the photograph was acquired by the EBay lister doesn’t have any impact at all on the copyright status of the photograph. That’s because owning specific physical items — that particular photograph, in Mindy’s 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 copy or phonorecord that embodies a work does not give the owner of that copy or phonorecord the ownership of the copyright in the work.”3
And just because this particular item is a photographic image doesn’t change the analysis, though it can complicate things. The U.S. Copyright Office explains on its website:
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.4
So I can buy a copy of a book or a photograph or a painting — and then give my copy away, donate it to a library, loan it to a friend, or sell it to someone else. What I can’t do just because I own this copy is make more copies and distribute them: owning my one copy of the work doesn’t give me the right to make more copies and sell them to others.
All of which means, yes, assuming that the EBay lister legally acquired its copy of that photograph, it too can give it away, donate it or even sell it.
And none of that answers the question of whether anyone who buys it can use the photo for any purpose the buyer wants. That’s still going to be affected by the question of the copyright status of the image itself.
This particular image appears to have been a publicity photograph of a man who, at the time, was an officer in a statewide industry association in Louisiana. It thus appears to have been distributed to the press with the intention that it be used to publicize the man and his association. That would constitute publication under the law,5 subject of course to all of the usual caveats here about nothing in this blog being legal advice yadda-yadda-yadda.6
Works published between 1924 and 1977 without a copyright notice are in the public domain today because that copyright notice was required at the time in order for copyright protection to attach to the work.7
Which means that if Mindy buys this copy, she should be free to use it any way her heart desires — items in the public domain may be used freely, any way we want, for any purpose (with some limits8), without needing permission from or payment to the creator of the work.9
The thing and the rights to the thing… not an easy question, is it?
Cite/link to this post: Judy G. Russell, “The thing and the rights,” The Legal Genealogist, posted 31 Jan 2019 (https://www.legalgenealogist.com/blog : accessed (date)).
SOURCES
- 17 U.S.C. § 102(a). ↩
- U.S. Copyright Office, “Copyright in General: What does copyright protect?,” Copyright.gov (https://www.copyright.gov : accessed 31 Jan 2019). ↩
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 3 (https://www.copyright.gov : accessed 31 Jan 2019). ↩
- U.S. Copyright Office, “FAQs: Can I Use Someone Else’s Work? Can Someone Else Use Mine?,” Copyright.gov (https://www.copyright.gov : accessed 31 Jan 2019). ↩
- See Carolyn E. Wright, “Are Photographs Posted On the Internet Published?,” Photo Attorney, posted 2 Sep 2012 (https://www.photoattorney.com/ : accessed 31 Jan 2019). ↩
- See generally Judy G. Russell, “Rules of my road: 2019,” The Legal Genealogist, posted 4 Jan 2019 (https://www.legalgenealogist.com/blog : accessed 31 Jan 2019). ↩
- Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” updated 2 Jan 2019, Copyright Information Center, Cornell University (https://copyright.cornell.edu/ : accessed 31 Jan 2019). ↩
- This is a photo of a relative, mind you. He — if living — and otherwise his close kin probably wouldn’t be amused by the use of the photo to advertise something illegal, immoral or fattening… Just sayin’ … ↩
- See generally Judy G. Russell, “Where is the public domain?,” The Legal Genealogist, posted 21 Dec 2015 (https://www.legalgenealogist.com/blog : accessed 31 Jan 2019). ↩
Now my bran feels like burnt scrambled eggs. ♀️
That could be problematic in the case of a Zombie apocalypse. 🙂
Yes, for sure!
Along the same lines: I have letters written from a mother to a daughter in 1918. They were in my attic when we moved in two decades ago along with many other documents from the family that built the house in the 1890s. The letters are amazing, documenting the mother’s life experienced in rural Maine and including all sorts of genealogical information.
The family has been long gone from the area the writer and recipient are both deceased and their children/grandchildren deceased. (I did a bit of digging.)
My question is who would hold “copyright” of the letters? Could they be transcribed and published?
I want to donate the letters to a local historical society. Can I do that since I have possession?
Didn’t search the blog, didja? 🙂 Check out Copyright and the lost letters. (And yes, regardless of copyright status, you can always donate your legally-acquired copy of these letters. What can be done with them depends on the copyright status.)
I’m sorry! I didn’t. I read this post and thought wait what about those letters I have? and just typed away. Thanks for the link!
I own quite a few family photos and family papers created by my maternal grandparents. They were given to me by my mother who had received them from my grandparents.She also gave me her photos and documents There is no document indicating that these items were given to me. No one signed anything. They were just handed to me with the comment,”Well, no one else wants this stuff.” Is copyright an issue here for me or may I use them any way I want?
There could be a copyright issue, but you’ll have to work through whether there is one or not:
(a) Are these copyrightable? Photos would be; text documents with some even minor bit of creative energy to create them would be; purely factual documents would not.
(b) If copyrightable, are they now copyright-protected? These would likely be unpublished materials, so copyright would last until 70 years after the deaths of the creators. If the creators died before 1949, they are no longer copyright-protected if they ever were.
(c) If still in copyright, who owns the copyrights? As personal property they would pass first by will (did the creator leave a will? does the will have a clause about copyrights? if not, is there an “all the rest and residue” clause?) and if not by will then by intestate law of the jurisdiction where the estate was probated. If the creators are deceased and their heirs under their wills and/or intestate laws are also deceased, who are their heirs under the same system?
Have fun doing traditional paper-trail genealogy to answer this legal question!
Ever watch a football game on TV? At the end, the announcer announces, roughly, that “this telecast is for the enjoyment of the viewer only. Any further use or account of this game is prohibited…” Does this mean I can’t record it on my VCR or tell my neighbor across the fence about it, or gosh knows what else?
What, twice in one day I have to note that I can’t, don’t and won’t give legal advice about current legal issues unrelated to historical genealogy? See Rules of my road: 2019.
That being said, it wouldn’t hurt for you to read Sony Corp. v. Universal City Studios, 464 U.S. 417, 456 (1984) (“One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home,” emphasis added).
When I graduated from college, the photo chain that took my graduate photos offered me several options; hard copies of the photos, CD copy of photos, downloadable images – these options made it clear they still owned the copyright.
I don’t remember what the last option was called, but it didn’t include any photos, other than the image proofs that were part of the e-mail. However, it gave me shared or limited copyright where I could do whatever I wanted with the proofs while they retained copyright if they wanted to use the photos in promos or ads. It cost $85 in 2011 from this studio. I felt it was worth it as I wanted the ability to share the photos online without risking the chain coming after me for copyright violation. It was only slightly more expensive than the cheapest photo package they offered.
I’m glad the photography chain made it clear! So many people have no idea they may well not have the right to copy little Susie’s school picture for the grandparents and everyone else.
Gee — I wonder if sites such as Classmates.com tracked down all the photographers who took the portraits of the students to get permission to put them on line behind a paywall? And if the photographers have lost their copyrights because the schools failed to put copyright notices on the photos, I wonder if the photographers would be able to sue the schools for damages. I imagine the schools had some kind of contract with the photographers. Our local school district used the same local studio for years and the studio took in a fair amount of money considering that everybody bought multiple 8×10 prints for all the relatives plus dozens of the wallet sized prints the students used to traded with all their friends (we’re talking pre-Facebok here), so there was enough money involved to make it worthwhile to put everything in writing.
Not expecting any answers — just engaging in idle speculation.
You write that “This particular image appears to have been a publicity photograph of a man who, at the time, was an officer in a statewide industry association in Louisiana. It thus appears to have been distributed to the press with the intention that it be used to publicize the man and his association. That would constitute publication under the law…”
I’d like to think you are right, but don’t forget the case of King v. Mister Maestro, Inc., 224 F. Supp. 101(S.D.N.Y. 1963), in which the Court concluded that the distribution to the press of copies of the advance text of Martin Luther King’s “I have a Dream” speech without copyright notice did not constitute a “general publication” that destroyed its common law copyright.
If distribution to the press did not constitute publication, we might then ask if publication of the photograph in 1965 destroyed its copyright. That might depend on whether it appeared in a publication that had a copyright notice on it – and if that copyright notice extended to the photograph. Tough questions.
It might be easier to think about whether there is any presumptive copyright owner who might care about your use.
You’re right that a deeper analysis is probably the way to go. However, the King speech is almost sui generis, particularly in light of the registration by King of his copyright in the speech on Sept. 30, 1963. The real issue in the King speech cases is whether distribution to the media prevented that 1963 copyright from being effective. See Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211, 1214 (11th Cir. 1999). That’s a very different set of facts than the typical “here’s a publicity photo, please use it” situation.