Copyright Conundrum

BobD · Sep 19, 2017

I've raised this question on another forum but only seemed to have created confusion there so I thought I'd try on a larger forum.

In a nutshell, the scenario I am questioning is this:

Person A shoots a roll of film but never gets it processed. Some time later the film ends up in another person's possession. Let's say this Person B bought an old camera and found the film still inside, a fairly common occurrence.

OK, so Person B is now the owner of this film and processes it and obtains the images contained thereupon.

Now, who would own the copyright for these images?

According to this document found at the copyright.gov site ...

"Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship
immediately becomes the property of the author who created the work. Only the author or those deriving their rights
through the author can rightfully claim copyright."

Another reference on that site:
"Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression."

OK, so person A "took" the photos but did not "fix them in a tangible medium of expression" due to the fact that the latent images on the film were not visible. Person B did fix them but is he or she considered the one who "created the work"?

Do you see the conundrum? I wonder if anyone knows of any actual court tests of this scenario?

Ian Grant · Sep 19, 2017

The person who bought the film and shot the images would own the copyright. The latent image is a permanent change in the physical state of an unexposed film.

However as long as the second person wasn't claiming the images as their own and states that there's not an issue unless the image is being sold/used for commercial use. Should the original shooter or relative see and claim the images (and have sufficient proof) then that's another matter.

Ian

removed account4 · Sep 19, 2017

the person who exposed the film owns the copyright of the images,
the latent image is fixed on the film.
if the B person wants to claim ownership/authorship of the images
he/she should consult a copyright attorney ..
the attorney will explain copyright and orphaned works &c

faberryman · Sep 19, 2017

I believe in the Vivian Maier case it was determined that the Estate of Vivian Maier owned the copyright to the images even though the processed and unprocessed film was sold to John Maloof. The case was settled; unfortunately, the terms of the settlement were sealed so we don't know how the parties allocated the rights and responsibilities among themselves.

Prof_Pixel · Sep 19, 2017

I've always heard "The copyright starts when the image is taken." However, if an image is not actually registered with the copyright office, the ability to recover damages is limited.

BobD · Sep 19, 2017

Ian Grant said:
The person who bought the film and shot the images would own the copyright. The latent image is a permanent change in the physical state of an unexposed film.

However as long as the second person wasn't claiming the images as their own and states that there's not an issue unless the image is being sold/used for commercial use. Should the original shooter or relative see and claim the images (and have sufficient proof) then that's another matter.

Ian

According to this reference from the Cornell Law site:

"A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission."

A latent image is not "sufficiently permanent or stable to permit it to be perceived" so how could the copyright belong to the original shooter? After processing the image would be fixed but the original shooter is not the one who fixed the image.

As an analogy, if I have an idea for a song and have composed it in my head but never recorded it in any way. Then I sang that song to someone else who did record it. In that case the copyright would legally belong to which person?

Ian Grant · Sep 19, 2017

Didn't Gary Winogrand leave thousands of un-processed films, they remain the Copyright of his estate.

BobD you are talking about a copy not an original in that link, so it's not relevant.

Ian

BobD · Sep 19, 2017

faberryman said:
I believe in the Vivian Maier case it was determined that the Estate of Vivian Maier owned the copyright to the images even though the processed and unprocessed film was sold to John Maloof. The case was settled; unfortunately, the terms of the settlement were sealed so we don't know how the parties allocated the rights and responsibilities among themselves.

I couldn't find a reference stating that the Meyer estate included any unprocessed film, only negatives and other actual images. Do you have a reference specifically stating that unprocessed film was included?

BobD · Sep 19, 2017

Ian Grant said:
Didn't Gary Winogrand leave thousands of un-processed films, they remain the Copyright of his estate.

BobD you are talking about a copy not an original in that link, so it's not relevant.

Ian

Which link? I've posted several.

faberryman · Sep 19, 2017

BobD said:
I couldn't find a reference stating that the Meyer estate included any unprocessed film, only negatives and other actual images. Do you have a reference specifically stating that unprocessed film was included?

You might try using Google. It is a handy resource. He is a link: http://www.chicagotribune.com/entertainment/chi-vivian-maier-photos-legal-fight-20140912-story.html

BobD · Sep 19, 2017

faberryman said:
http://www.chicagotribune.com/entertainment/chi-vivian-maier-photos-legal-fight-20140912-story.html

Ah hah! The ownership of those images are being contested so this tends to confirm that my scenario is not so clear cut as to who owns the copyright. Interesting.

faberryman · Sep 19, 2017

BobD said:
Ah hah! The ownership of those images are being contested so this tends to confirm that my scenario is not so clear cut as to who owns the copyright. Interesting.

The lawsuit has been settled, so the respective rights of the parties are no longer being contested. The issues went beyond the simple question of who owns the copyright. Please note that the Chicago Tribune story I linked to was dated 2014. You need to slow down, do some research, and think before posting.

MattKing · Sep 19, 2017

From the applicable part of the US code (other countries may have different rules):
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
It is well settled law that the photographer owns the copyright, not the holder of a negative, transparency, or print.
Unless of course there has been a transfer of ownership, through agreement or specific provision of law (such as the old Canadian provision respecting photographs made for a paying client or employer).

MattKing · Sep 19, 2017

BobD said:
Ah hah! The ownership of those images are being contested so this tends to confirm that my scenario is not so clear cut as to who owns the copyright. Interesting.

That story is from 2014. The dispute has since been resolved, and in any event centred only on who was entitled to the estate, not whether the estate held the copyright.
I expect that the resolution of the estate issues turned on Mr. Maloof posting a really large and extremely expensive bond - in case Ms. Maier's brother or any of his issue where ever located.

Theo Sulphate · Sep 19, 2017

BobD said:
...
As an analogy, if I have an idea for a song and have composed it in my head but never recorded it in any way. Then I sang that song to someone else who did record it. In that case the copyright would legally belong to which person?

In the A vs B scenario, I know you're seeking a legal answer or interpretation, which I won't attempt to give. To me, morally, the rightful owner is the photographer, images developed or not. The photographer is totally responsible for those images being there, latent or not, and B has no claim, as his effort in rendering them visible is not great. I would hope that the law agrees with this.

As for the song, likewise you are the creator and owner from my moral perspective.

Kino · Sep 19, 2017

MattKing said:
That story is from 2014. The dispute has since been resolved, and in any event centred only on who was entitled to the estate, not whether the estate held the copyright.
I expect that the resolution of the estate issues turned on Mr. Maloof posting a really large and extremely expensive bond - in case Ms. Maier's brother or any of his issue where ever located.

Not true:
"The probate case that has played out in Chicago has added another layer of intrigue to Maier's story. At the center of the case is an unusual situation: A woman who died virtually penniless and without any clear heirs now has an estate potentially worth millions of dollars. But while the estate has the copyrights to Maier's work, others legally own the film itself."

http://www.chicagotribune.com/news/...an-maier-estate-fight-met-20160526-story.html

Gerald C Koch · Sep 19, 2017

As soon as a photograph is made it is protected by copyright. This prevents anyone from using the work without permission. Registering a work is not rrequired but it does allow the creator of the work to sue for damages. People seem ignorant of this important distinction.

BobD · Sep 19, 2017

Ian Grant said:
Didn't Gary Winogrand leave thousands of un-processed films, they remain the Copyright of his estate.

Ian

The Winogrand case is not what I'm talking about. He didn't sell or give his unprocessed film away to some stranger. The film remained with his estate so of course his heirs would own the copyrights.

faberryman · Sep 19, 2017

Theo Sulphate said:
In the A vs B scenario, I know you're seeking a legal answer or interpretation, which I won't attempt to give. To me, morally, the rightful owner is the photographer, images developed or not. The photographer is totally responsible for those images being there, latent or not, and B has no claim, as his effort in rendering them visible is not great. I would hope that the law agrees with this.

As for the song, likewise you are the creator and owner from my moral perspective.

Morals are tricky things about which their is much disagreement.

BobD · Sep 19, 2017

Gerald C Koch said:
As soon as a photograph is made it is protected by copyright. Registering a work is not rrequired but it does allow the creator of the work to sue for damages. People seem ignorant of this important distinction.

Yes we know that. The point being raised here is WHEN (legally) is the photograph considered to be made IF the film changes hands between exposure and processing. In other words, is an invisible latent film image a photograph? Copyright law seems to say that it isn't because it is not fixed in a perceivable form.

faberryman · Sep 19, 2017

BobD said:
Copyright law seems to say that it isn't because it is not fixed in a perceivable form.

"Seems" is a waffle word. You don't have any idea what the law is.

skorpiius · Sep 19, 2017

I would say at the very least if you were to go with the opinion that a negative is not considered a copywriteable image, you are leaving yourself open to needing to hire a lawyer.

MattKing · Sep 19, 2017

BobD said:
Copyright law seems to say that it isn't because it is not fixed in a perceivable form.

Copyright law is clear - the copyright belongs to the photographer.
That interpretation you referred to isn't the law itself, it is an interpretation, and it was most likely worded to deal with all sorts of copyrights, including copyrights for music and movies.
And by the way, the latent image is fixed in a form that can be perceived with the aid of a "device" (chemical development).

BobD · Sep 19, 2017

Theo Sulphate said:
In the A vs B scenario, I know you're seeking a legal answer or interpretation, which I won't attempt to give. To me, morally, the rightful owner is the photographer, images developed or not. The photographer is totally responsible for those images being there, latent or not, and B has no claim, as his effort in rendering them visible is not great. I would hope that the law agrees with this.

As for the song, likewise you are the creator and owner from my moral perspective.

I'm sure many would agree with you but, I am speaking about legality, not morality.

However, I don't quite agree with the idea you expressed that "the photographer is totally responsible for the images being there."

First of all, in my mind someone who processes film is just as much a photographer as someone who exposes it. Secondly, the shooter is only partially responsible for the images because they weren't even perceivable when he relinquished them. If it were a perfect world I would think they should somehow share the copyright but I also know how unreal an idea that is.

Gerald C Koch · Sep 19, 2017

BobD said:
Yes we know that. The point being raised here is WHEN (legally) is the photograph considered to be made IF the film changes hands between exposure and processing. In other words, is an invisible latent film image a photograph? Copyright law seems to say that it isn't because it is not fixed in a perceivable form.

To me this is similar to making an engraving. The image is certainly covered by copyright even though no print has been pulled from the plate. I am unaware of any requirement in copyright law that requires a work to be completed before a copyright exists. I am speaking of say an unfinished painting or book or musical work.

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