Copyright law in the USA

tjaded · Mar 8, 2007

Hi all--
I have a question that I cannot seem to find a clear cut answer on. Hopefully this is the right forum. If you buy a negative or chrome of an image taken sometime pre-1970, do you now own the copyright if you register the image or is it public domain or something else entirely? The reason I ask is that I own quite a few old images that I have collected over the years and I have been asked on a few different occasions to make copies for use in things like tv programs (for retro effect or whatever.) I have been reluctant to do it for a couple of reasons, first being that it would freak me out to watch a tv show and suddenly see a picture of my grandmother or something on the screen...the possibility is slim that a situation like that would occur, but you never know. The second is strictly the legality of it. The producers of one of the tv shows assured me it was legal but then wanted me to sign a liabilty release. I know there is some way to do this--many years ago I had a long talk with someone that owned a HUGE 8mm/26mm home movie collection (not his movies originally) that were used in other films (the old footage of LA in the 1950's at the begining of LA Confidential being one example.) I never even thought to ask him about the whole legality thing! So...anyone know for sure?
Adios,
Matt

John Bartley · Mar 8, 2007

You know of course that there's going to be a whole bunch of people who will analyse the legal aspects of this sort of topic until we run out of bits and bytes.

Here's my laymans take on it (just an opinion) and is likely how I would proceed if it was me :

If the original owner(s) of the negatives cared so little for them that they either threw them out, sold them at a garage sale or disposed of them thru' an estate sale, then they've given up any rights they had.

If you have no practical way of identifying the people in the negatives, then how can you be legally responsible for finding and notifying them that you are about to use their likeness?

And, while there is a risk that someone might identify an image, what are the odds? My guess is that you are more likely to be struck by a bus during rush hour traffic in Whitehorse .....

I'd likely use them, but I sure wouldn't sign any papers absolving the producers of responsibility just to accept it all myself.

So...anyone know for sure?

This answer will only come from a court of law. Even a lawyer can only give an (educated) opinion.

cheers eh?

jstraw · Mar 8, 2007

I do not know the legalities of using such material in films but I'd take the request to sign a waiver seriously.

The copyright issue is not complicated at all. It's extremely simple. Copyright acrues from creation, not registration. Registration can make it easier to defend copyright but it does not constitute an imposition of copyright.

The lack of provinance doesn't mean copyright doesn't exist and the responsibility is on the user to clear rights, not the owner of copyright to assert them. Unless you created the work, paid for the creation of the work or purchased the rights, you do not own and cannot manufacture copyright.

There are indeed cases not unsimilar to the hypothetical grandma where people have sued and recovered damages.

IAMAL but in my opinion there is no open question about copyright, just one of risk management.

luvcameras · Mar 8, 2007

Jstraw - but doesnt he own the rights the images ?

luvcameras · Mar 8, 2007

I have a smiliar concern - but even less likely to be an issue. I purchased an 1880's cabinet card of a photographer...I scanned it, touched it up added my site logo...I then re-sold the original image on ebay. Do I have the right to use this image ?

BWGirl · Mar 8, 2007

Here's a link that may help get you started:

http://www.photosecrets.com/tips.law.html

There is also an excellent book:

http://www.amazon.com/Law-Plain-Eng...419047?ie=UTF8&s=books&qid=1173366705&sr=8-25

And there's another book that has business & legal forms (so if you decide to allow the TV people to use you images.)

Hope all this helps!

jstraw · Mar 8, 2007

luvcameras said:
Jstraw - but doesnt he own the rights the images ?

Think of it this way. Let's not think about negs or chromes. Let's say you paint a picture and sell it to me. Do I have the right to sell the use of that painting for illustrating a book cover? I do not. Unless copyright to the work was explicitly reassigned to me, I don't own it ("it" being copyright...the right to copy).

When you sell a print do you give up the right to control the use of the image? There is no inherent legal distinction between the original in-camera creation (the neg or chrome) and the duplicate (the print).

jstraw · Mar 8, 2007

luvcameras said:
I have a smiliar concern - but even less likely to be an issue. I purchased an 1880's cabinet card of a photographer...I scanned it, touched it up added my site logo...I then re-sold the original image on ebay. Do I have the right to use this image ?

This is another good example of why this is a risk management issue. You may own the rights to use that image in your logo if its copyright has expired. Otherwise, no. But there's the question of the liklihood of there being any consequences for doing so.

Donald Miller · Mar 8, 2007

It is my understanding that the copyright protection extends to the original producer of a work for a period of his/her lifetime plus twenty five years. It is only then that a work will enter the public domain...provided additional copyright protection is not sought and gained.

This is what the US Copyright Office told me at the time that I sought and obtained a copyright for both my image and the descriptive term for "Red Rocks Where the Stars Come Out".

A copyright may still exist when a copyright has not been formally applied for and obtained.

naturephoto1 · Mar 8, 2007

It is my understanding that if you are the photographer (artist, work of art) for works created after January 1, 1978 that the copyright lasts your entire life plus 70 years after your death so that your relatives can benefit from the copyright.

Rich

tjaded · Mar 8, 2007

naturephoto1 said:
It is my understanding that if you are the photographer (artist, work of art) for works created after January 1, 1978 that the copyright lasts your entire life plus 70 years after your death so that your relatives can benefit from the copyright.

Rich

That, to my mind, is where my question stems. These were all taken long before Jan 1978, and if I remember right the previous copyright laws were much shorter . If the copyright is expired, does that make them public domain or can someone (me in this case) register them now (not that I would...)

TheFlyingCamera · Mar 8, 2007

Here is a fairly definitive statement of the terms of copyright, from Cornell University's Copyright Information Center-

Dead Link Removed

.

jstraw · Mar 8, 2007

Donald Miller said:
A copyright may still exist when a copyright has not been formally applied for and obtained.

The only question is whether a copyright has expired and/or who owns it. All creative works are copyrighted from the moment of their inception. Copyright may be registered but there is no "obtain" in that sense. One does not get copyright from government.

Donald Miller · Mar 8, 2007

jstraw said:
The only question is whether a copyright has expired and/or who owns it. All creative works are copyrighted from the moment of their inception. Copyright may be registered but there is no "obtain" in that sense. One does not get copyright from government.

Perhaps you failed to read or to grasp what I clearly stated in the last sentence of my post. For your information, I will restate it here..."A copyright may still exist when a copyright has not been formally applied for and obtained."

For your further information, when one does apply for a registered copyright under the purvey of the federal government, they do grant a certificate that very clearly attests to the existence of that application and registration, if acknowledged as being valid. I do have a certificate attesting to that in my possession. So one does "obtain" verfication of the existence of the copyright.

I am not an attorney, certainly not in the area of copyright or patent law. I assume that you probably do not fit into that catagory either.

jstraw · Mar 8, 2007

Donald Miller said:
Perhaps you failed to read or to grasp what I clearly stated in the last sentence of my post. For your information, I will restate it here..."A copyright may still exist when a copyright has not been formally applied for and obtained."

For your further information, when one does apply for a registered copyright under the purvey of the federal government, they do grant a certificate that very clearly attests to the existence of that application and registration, if acknowledged as being valid. I do have a certificate attesting to that in my possession. So one does "obtain" verfication of the existence of the copyright.

I am not an attorney, certainly not in the area of copyright or patent law. I assume that you probably do not fit into that catagory either.

That's the sentence I was responding to. The "may" part only relates to the possibility of expiration. It existed or exists entirely without regard to it's registration. There is a process for registering copyright. There's no such thing as applying to "obtain" copyright. Certifiying a fact is not the same thing as making a fact. The distinctions between registering a copyright and the existence of copyright as well as the purposes of each are useful to understand.

I'm not sure why you find working towards clarity a matter of personal confrontation but if you'd rather fight than discuss, you fight and I'll discuss, ok?

JBrunner · Mar 8, 2007

It needs to be pointed out that even if you own the copyright of an image, you may not own the right to use the likeness of a person pictured in the photograph depending on the disposition of the person, and the circumstances of said photograph. In the simplest sense, if I photograph you, I certainly hold the copyright to the photograph, but without a release for your image, there are limitations as to how I might use that photograph and that liability may in fact be of some concern to the OP.

Sirius Glass · Mar 8, 2007

JBrunner said:
It needs to be pointed out that even if you own the copyright of an image, you may not own the right to use the likeness of a person pictured in the photograph depending on the disposition of the person, and the circumstances of said photograph. In the simplest sense, if I photograph you, I certainly hold the copyright to the photograph, but without a release for your image, there are limitations as to how I might use that photograph and that liability may in fact be of some concern to the OP.

Question: What if I purchase and now own the negative? Have the rights of reproduction passed to me? :confused:

Steve

TheFlyingCamera · Mar 8, 2007

It is my general understanding that absent any documentation to the contrary, ownership of the negative implies ownership of the right to reproduce. I would consult a copyright lawyer to get a definitive answer on this.

Magnus W · Mar 8, 2007

Stever said:
Question: What if I purchase and now own the negative? Have the rights of reproduction passed to me? :confused:

No. Not unless the photographer has released those rights to you.
The physical possesion of a negative does not automatically grants you the copyright, in the same way as the possesion of a print does not grant you the rights to copy the print.
The copyright is immaterial and has to be granted specifically.

-- MW

JBrunner · Mar 8, 2007

Stever said:
Question: What if I purchase and now own the negative? Have the rights of reproduction passed to me? :confused:

Steve

I wish I could give a better reply, but my advice is to consult a copyright lawyer. It sounds like you have a good collection, and having professional advice in regard to sorting out how you may use it would be worth the effort.

Paul Sorensen · Mar 8, 2007

Stever said:
Question: What if I purchase and now own the negative? Have the rights of reproduction passed to me? :confused:

Steve

Nope, not unless you have been explicitly given or purchased those rights. As stated above (correctly in my opinion) owning a piece of artwork does not give the owner copyright to the artwork. In a practical matter, I agree that if someone sells negatives, in many or most cases they are not concerned about the possibility of them being printed by someone else. An example to the contrary is that occasionally I have seen framed and matted prints sold as an edition of one with the negative mounted with the print (an idea I am not wild about, but that isn't the issue here...). The person doing this is clearly not intending to transmit copyright to the buyer for them to reproduce the print. That would make the whole cache of it being an edition of one kind of a moot point.

Another issue is that copyright needs to be defended by the owner, and if the owner doesn't care, there may be copyright, but for all intents and purposes there isn't, because the owner won't defend it if you make copies. It's not the same as a piece being put in the public domain, and probably not good enough for a smart publisher, but the effect is the same nonetheless.

As with the other folks that have posted here, I am not an attorney, but the issue of copyright not following the ownership of a negative is pretty clear in my mind.

jstraw · Mar 8, 2007

JBrunner said:
It needs to be pointed out that even if you own the copyright of an image, you may not own the right to use the likeness of a person pictured in the photograph depending on the disposition of the person, and the circumstances of said photograph. In the simplest sense, if I photograph you, I certainly hold the copyright to the photograph, but without a release for your image, there are limitations as to how I might use that photograph and that liability may in fact be of some concern to the OP.

This is a very good point. It gets kind of complicated. If I photograph you on a public thoroughfare or in a public space, I do not need your permission to publish the picture in my newspaper or book as editorial or creative content. I cannot use the same picture of you to sell a product, however.

jstraw · Mar 8, 2007

JBrunner said:
I wish I could give a better reply, but my advice is to consult a copyright lawyer. It sounds like you have a good collection, and having professional advice in regard to sorting out how you may use it would be worth the effort.

I agree.

Moopheus · Mar 8, 2007

tjaded said:
That, to my mind, is where my question stems. These were all taken long before Jan 1978, and if I remember right the previous copyright laws were much shorter . If the copyright is expired, does that make them public domain or can someone (me in this case) register them now (not that I would...)

Generally speaking, if the copyright had not expired before 1978, it would be covered by the 1978 law (and subsequent revisions). Once a work's copyright has expired and enters the public domain, it can't be recopyrighted. So if the pictures were taken before, say, the early 1950s, they might be PD. But for more specific answers, you would have to know when the pictures were taken, and consult a copyright lawyer.

Oswulf · Mar 8, 2007

Thank Disney for the ever increasing copyright lengths. Every time Mickey Mouse gets close to being put into public domain Disney lobbies to have the term extended. It used to be the life of the author/creator plus 25 years. Then it was 50 years. Now it's 70 years.

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