Copyright Conundrum

[Theo Sulphate]

Yes, but, once again the question being asked here is WHO really MADE THE PHOTO? Per copyright law the work must be fixed and perceivable to be covered by copyright and the shooter in this scenario didn't fix the image in a perceivable form. Please try to understand that idea before posting further comments.

Oh, I get it. There is no question that the image is fixed in the latent image by the chemical change in the emulsion. I also realize that it's not immediately perceivable. However, the person developing the film can only lay claim to rendering visible what was already there in the film. For that reason, person B has less involvement with the actual image.

No, I didn't. I said "Just as much a photographer ..." NOT "... just as much the photographer."

Well, if he's not the photographer, that lessens his claim on the image. Still, processing film doesn't make anyone "just as much a photographer".

 

[BobD]

Is this a real question (meaning about a real situation) or a hypothetical just for discussion?

Lots pf people find old unprocessed film and I've found many such rolls over the years. Seems real enough to me.

 

[Theo Sulphate]

Well, ultimately a court will have to decide. I can partly see the other side of the argument from a legal sense (and that is the only interpretation that will matter). Morally, which I know counts for nothing, I give all credit for the image to the photographer.

 

[BobD]

Oh, I get it. There is no question that the image is fixed in the latent image by the chemical change in the emulsion. I also realize that it's not immediately perceivable. However, the person developing the film can only lay claim to rendering visible what was already there in the film. For that reason, person B has less involvement with the actual image.

Yes, I would agree with this.

Still, processing film doesn't make anyone "just as much a photographer".

It does to me in the context of film photography because it takes both shooting and processing to make a photograph. Therefore those who process and print film images are also photographers to me.

 

[BrianShaw]

Lots pf people find old unprocessed film and I've found many such rolls over the years. Seems real enough to me.

Mostly if commercial use of the found images is anticipated. Other than that it seems like hypothetical without much concern for ethics.

 

[MattKing]

Well, ultimately a court will have to decide.

Its already been decided long ago. It is the taking of the photograph that creates the copyright.
The importance of all the language about something being fixed or perceived is in relation to defending the copyright, not in relation to who owns the copyright.
You can't start a copyright infringement action, and can't obtain a remedy, until your film is developed and the image on it is copied by someone who isn't entitled to it.
But you still own the copyright on the image, because you took the photograph.

 

[MattKing]

For those in the US:
section 201 of the US Copyright Act of 1976:
§ 201. Ownership of copyright (a) INITIAL OWNERSHIP.—
Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
section 201 of that Act:
§ 202. Ownership of copyright as distinct from ownership of material object
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
The "work" is not the negative, and the negative is not the "work",

 

[Steve Smith]

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.

Only in the US.


Steve.

 

[Steve Smith]

Copyright law says a work must be in a fixed and perceivable form to be covered by copyright. Once again the question being asked here is: Did the shooter in your scenario satisfy that requirement? Can an invisible unprocessed latent film image be considered to be in a fixed and perceivable form?

No. But it will be when you process it.


Steve.

 

[Craig75]

So basically you want to rip off a fellow photographer?

 

[removed account4]

Once again the question being asked here is: Did the shooter in your scenario satisfy that requirement?

yes
there really isn't an argument, philosophical or otherwise.
ethical on the other hand ... to me at least, it is unethical to lay claim to
someone else's work, even if it was found in a camera purchased
at a yardsale, flea market, ebay or some online classifieds ... and
selling someone else work for monetary gain ( to a gallery or stock agency
or ad agency or whatever ) crosses the boundary into theft.

 

[MartinCrabtree]

All this begs the question.........are the photos you found that good as to wonder if problems exist selling them?

 

[MartinCrabtree]

Or have you purchased Ansel Adams' old pocket camera containing some undeveloped film?

 

[BobD]

Well, here's the thing: I don't think copyright law takes into account the scenario where one person exposes film and then another takes possession of the film and processes it and in so doing fixes the images and makes them perceivable.

 

[BrianShaw]

Well, here's the thing: I don't think copyright law takes into account the scenario where one person exposes film and then another takes possession of the film and processes it and in so doing fixes the images and makes them perceivable.

It seems to me that you are splitting hairs. That often works but often fails as a defense. A reasonable person would interpret based on the intent and what's right rather than weasel-worded twists of the language.

 

[faberryman]

Well, here's the thing: I don't think copyright law takes into account the scenario where one person exposes film and then another takes possession of the film and processes it and in so doing fixes the images and makes them perceivable.

You seem to want to make an arbitrary distinction between chemical and electronic devices required for perception. If you make a tape recording you can't perceive anything on the tape without the aid of a tape playback machine. If you take a digital image, you can't perceive anything on the SD card without the aid of a computer and software. If you take a film image you can't perceive anything without the aid of a film processing machine. There is no reason all three type of devices should not be treated equally. There is no copyright issue with someone making a tape recording, and then someone else taking possession of the tape recording before it is played back, or someone taking digital images and someone taking possession of the SD card before the images are viewed. Likewise, there should be no issue with someone taking film photographs, and someone taking possession of the unprocessed film. Keep in mind the purpose of the Copyright Act: to protect creators of artistic, literary, etc. works. The person who simply plays back a tape, views digital images on a computer, or processes film should not have rights superior to the actual creator of the sound, or digital or film images.

 

[Gerald C Koch]

How would one prove who took the picture without a documented trail of who used the camera, or who may have taken shot 3 and handed it to a stranger to take shot 12?

In reality how often doess such a situation occur unless you are taking family snapshots. For any serious photography the camera will not be passed off.

 

[BrianShaw]

Section 999 of the US Copyright Act of 2018:
§ 999. Ownership of copyright (a) ABANDONED FILM.—
Copyright in a work protected under this title vests initially in the creator or creators of the work unless lost, stolen, or inadvertently sold with an old camera whereby the ownership of the image, perceivable or latent, becomes ambiguous. The authors of a joint work are coowners of all resulting ambiguity. In cases where ambiguity is not contested the following prevails without prejudice to the original creator or creators claim of ownership or copyright: Finders, keepers; Losers, weepers.

 

[darkroommike]

If A has a camera and a roll of film and B buys the camera at a later date with a roll of film shot by A. B owns the camera, A, or his estate owns the copyright to the images. In the Maier case, Maloof bought a bunch of film, some processed some not, he sought out Vivian Maier's closest living relative and cut a deal. Some slimy sleaze ball lawyer (but I repeat myself) did a genealogy research after the images became famous and found another living relative with the same degree of consanguinity and cut a deal with Cousin #2 for a big piece of the action. I have not seen the decision, it was sealed, full non-disclosure, but here's how it probably played out: Maloof was screwed but still got a little, Cousin #1 was screwed but still got a little, Cousin #2 was screwed but still got a little, and the big winners were, brace yourself, the LAWYERS for both parties, especially the slimeball that brought the suit. Anytime something goes to court, the lawyers always win.

NB there is a class of lawyers that do intellectual property "prospecting" and are always filing patent infringement, trademark infringement, copyright, etc. suits. Occasionally they grab lapsed copyrights, abandoned intellectual property or buy up rights to old works, and then make out like bandits in the courts. There needs to be a revision of intellectual property rights to protect against these predators.

 

[Wallendo]

This is the US patent offices most recent report on orphaned works. It is a long read, but interesting.
https://www.copyright.gov/orphan/reports/orphan-works2015.pdf

My interest in all of this this stems from my mother's wedding portrait, photographed in 1958. Since the photographer was alive in 1958, the copyright extends until at least 2028 and probably longer. I have done online searches, and not unexpectedly, this studio is no longer in business. I know only the photographers last name so searches for him are also fruitless. I have scanned the images for archival purposes. I have no way of knowing the status of the images rights. Did he leave them to one or more descendants or sell them to another photographer or release them to the public domain on his death? I doubt the negatives still exist, but if they do, I have no way to locate them. It's a legal quandary. Wal-mart among others will not print my images because I can't prove I own the copyright - other services have done it for me since it is so old. It is extremely unlikely that the copyright owners will ever know of my "illegal" use of their images and I am not really worried about being sued for infringement. Still, it would be nice to know when the copyright expires, and I have complete legal use of the print.

 

[faberryman]

This is the US patent offices most recent report on orphaned works. It is a long read, but interesting.
https://www.copyright.gov/orphan/reports/orphan-works2015.pdf

My interest in all of this this stems from my mother's wedding portrait, photographed in 1958. Since the photographer was alive in 1958, the copyright extends until at least 2028 and probably longer. I have done online searches, and not unexpectedly, this studio is no longer in business. I know only the photographers last name so searches for him are also fruitless. I have scanned the images for archival purposes. I have no way of knowing the status of the images rights. Did he leave them to one or more descendants or sell them to another photographer or release them to the public domain on his death? I doubt the negatives still exist, but if they do, I have no way to locate them. It's a legal quandary. Wal-mart among others will not print my images because I can't prove I own the copyright - other services have done it for me since it is so old. It is extremely unlikely that the copyright owners will ever know of my "illegal" use of their images and I am not really worried about being sued for infringement. Still, it would be nice to know when the copyright expires, and I have complete legal use of the print.

What possible interest would the heirs of the wedding photographer have in your mother's sixty year old wedding photo? Are they really going to file a copyright infringement lawsuit to prevent you from making a copy of your mothers wedding photo? Use some common sense. And how exactly did Walmart come to the conclusion that you didn't have the right to make a copy of your mother's wedding photo? I don't recall any photo finisher ever asking me if I owned the copyright to family photos when I had copies made.

 

[rrusso]

Anytime something goes to court, the lawyers always win.

Of course. Want to change this? <queue laugh track> Pass legislation preventing the lawyers from receiving more than their clients. <play laugh track>

Since most politicians are lawyers, it ain't gonna happen.

 

[Wallendo]

What possible interest would the heirs of the wedding photographer have in your mother's wedding photo. You probably have a box of miscellaneous family photos. Are you going to seek out the heirs of your Aunt Matilda to get permission to make a copy of one of the photos she may have taken.

The problem is that many services will not print the image since it was a "professional photograph". This is not an issue with snapshots that look like snapshots.

This has actually become an issue for enthusiasts who take "professional looking" photographs with modern digital equipment.

When I actually get my darkroom up and running, hopefully by the end of the year, that won't be an issue.

 

[darkroommike]

This is the US patent offices most recent report on orphaned works. It is a long read, but interesting.
https://www.copyright.gov/orphan/reports/orphan-works2015.pdf

My interest in all of this this stems from my mother's wedding portrait, photographed in 1958. Since the photographer was alive in 1958, the copyright extends until at least 2028 and probably longer. I have done online searches, and not unexpectedly, this studio is no longer in business. I know only the photographers last name so searches for him are also fruitless. I have scanned the images for archival purposes. I have no way of knowing the status of the images rights. Did he leave them to one or more descendants or sell them to another photographer or release them to the public domain on his death? I doubt the negatives still exist, but if they do, I have no way to locate them. It's a legal quandary. Wal-mart among others will not print my images because I can't prove I own the copyright - other services have done it for me since it is so old. It is extremely unlikely that the copyright owners will ever know of my "illegal" use of their images and I am not really worried about being sued for infringement. Still, it would be nice to know when the copyright expires, and I have complete legal use of the print.

I think that "fair use doctrine" and "abandoned works" both apply in this case. In any case you are not doing this for profit, so the most you could get is a take down notice from the heirs. You might, also, acknowledge the great work done by the creator, and note the "extraordinary" lengths you went to to find the creator. As a rule, main street studios do not push back very hard, since their customer base is in the same town as their business.

 

[Prof_Pixel]

Only in the US.


Steve.

That's true... but the Original Poster is in the US.