Legal Rights Regarding Old Negatives, photographers unknown

I have recently been acquiring some old railroad negatives off ebay. They are 120 negatives and are obviously from varying photographers, who, I have no idea. I know I can make prints from these which I plan to do, but do I now own the rights to do whatever I want with these negatives? Can I make and sell prints? Can I make prints are display them in a public exhibition? And if so, do I have to state 'photographer unknown'?

I'm just very unfamiliar with this. It is new territory for me.

Thanks.

Short answer: Consult a copyright attorney.

Long answer you're probably not going to like: How did your sources get them? Did the seller provide you with copyright? Investigate the provenances to find correct attribution and public domain use.

Assuming the rights are retained by the railroad companies who hired these photographers to take these photographs then how can someone sell the negatives on ebay? Isn't that copyright infringement?

brian steinberger said:

Assuming the rights are retained by the railroad companies who hired these photographers to take these photographs then how can someone sell the negatives on ebay? Isn't that copyright infringement?

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The copyright issues will vary between jurisdictions - e.g., in Canada, unless modified by contract, the copyright will initially vest in the party hiring the photographer, whereas in the USA, unless modified by contract, the copyright will initially vest in the photographer.

And in either jurisdiction, the copyright in the image is separate from the negatives themselves.

Simple, it is not!

Wow this is complicated. So am I atleast able to make prints from these negatives to enjoy for myself?

brian steinberger said:

Wow this is complicated. So am I atleast able to make prints from these negatives to enjoy for myself?

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Yes.

Best IANAL I can give you on selling them; how old are they? If they are very old (early 1900's) and there is a good chance that the original photographer is deceased, chances are nobody will bother you unless they turn out to be truly valuable, ie, if you found old unpublished Ansel negatives his lineage may take exception to you selling prints from them. But it sounds like there is a good chance that nobody is watching out for these. I would not in any way sell them as your originals however, you could sell them as reprints but any gallery or similar venue would probably want to see some documentation that you have rights to these before they would allow you to sell in their venue.

brian steinberger said:

Wow this is complicated. So am I atleast able to make prints from these negatives to enjoy for myself?

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This sounds like a law school exam question .

I'm assuming that you are thinking of showing them in your own home or own personal workspace, or putting them in an album to show them to others - without any commercial interests whatsoever being involved.

My answer is - who is likely to complain about it?

While that may sound a bit flippant, it is also highly relevant.

If there isn't anyone who will likely seek a legal remedy against you for what you are doing, then it isn't likely that you need worry about it.

And if you are concerned about the morality of printing the negatives I would suggest you ask yourself whether the holder of the copyright is even potentially losing anything by your doing so.

I would have a different answer if you either recognized the images as being publicly well known and/or knew of who might own the copyright.

If they are 120 size negatives they may not be that old. I'm not that certain the original photographer or the copyrite holder could be determined unless research is done. I like to think of images from unknown photographers as documents from history. They might not meet gallery or publication standards without finding out about who or where the materials originated. I've printed some images from older size negatives that are larger than 120s but well under a 4x5 size. You need a large format 4x5 enlarger for those negatives. I don't know what type of reference books are available on this issue, but I wonder if anyone can cite such materials.

Thanks guys. The negatives are from the 40's and 50's. I'm looking for negatives that I can make prints from (up to 6x9) of regional railroads showing locomotives. I have two negs now, one from Hagerstown, MD and one from Washington DC. My idea is to make prints from these negatives to my artistic tastes just for historical purposes. I enjoy local history and I enjoy railroad history. At some point in time after I accumulate a decent collection of negatives and make prints from them it'd be neat to show them. And if someone was interested in purchasing one, that is where I was a bit confused. I mean how would these negatives get out on the open market if the original copyright owner actually cared about their importance or significance?

I believe, could be wrong, but there is a law in the US where a origional copyright holder(s) can make a claim that he/she didn't mean to sell/throw out his/her artwork and gain back his/her full rights.

I personally wouldn't go down this route because of too many unknowns and that worry one day that there will be a knock on my door looking for his/her cut of the pie (or more formally a cease and desist)

I collect really old RR photos, mostly postcards. The laws are complicated and have several different criteria. As I recall, if something is over 70 years old and no copyright on the image (and copyright not renewed,) they are considered public domain. During the 1950s a lot of serious railfans (i.e. foamers) used the Rollieflex. Both Eric Treacy and David Plowden had one. It's almost certain that your negs came from a railfan and not a pro photographer. As to how the negs got out on the market, there are two ways that are most likely. First, the foamers of the time used to trade negs all the time, and later Kodachrome slides. Second, they could have come from an estate sale after the guy died and the kids didn't want a bunch of old photos of trains. That's the more likely scenario. As for your making prints, I say go for it. You've got the negs. Here's a link to U.S. copyright laws. It looks to me that if the copyright was not renewed after 28 years on a photo made before 1978, it expired. I'd say the odds that a foamer had his images copyrighted are about zero.
http://en.wikipedia.org/wiki/Copyright_law_of_the_United_States


Kent in SD

Two23 said:

Here's a link to U.S. copyright laws. It looks to me that if the copyright was not renewed after 28 years on a photo made before 1978, it expired. I'd say the odds that a foamer had his images copyrighted are about zero.
http://en.wikipedia.org/wiki/Copyright_law_of_the_United_States


Kent in SD

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This is very promising!

brian steinberger said:

Isn't that copyright infringement?

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No. Copyright infringement is making a copy when you're not supposed to. Just selling the actual negatives is not an infringement.

MattKing said:

My answer is - who is likely to complain about it?

While that may sound a bit flippant, it is also highly relevant.

If there isn't anyone who will likely seek a legal remedy against you for what you are doing, then it isn't likely that you need worry about it.

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That would be my view of it too.


Steve.

You cannot steal paternity of the work. Right to paternity is unprescriptible. Nobody can publish Hamlet under his own name claiming that Shakespeare died more than 70 years ago. Nor can anybody publish Small Village, the unknown XVI century tragedy, because the author is unknown

You can certainly print the pictures and state that the photographer is unknown, and you are the printer. You have the copyright of the work as printer.

If you make some profit out of it, and one day the photographer proves his paternity, if the work is still covered by the economic rights, he'll be entitled to a certain share of your profit, which I cannot quantify. If the the work is not still covered by the economic rights, and you did not "steal" its paternity, I certainly presume nothing is due to the photographer.

The fact that you don't know the photographer identity doesn't allow you to hint the work is yours. The fact that the economic rights of the work expired never allows you to hint the work is yours.

The fact that you own, as private property, the negatives doesn't mean you can hint the work is yours. You can own, as private property, a work by Picasso but you cannot hint it's "yours" because it's "yours".

Considering that normally the print is executed by the photographer, in my opinion if you exhibit the work with your name only you are hinting the work is entirely yours and you are in breach of (imprescriptible) paternity rights.

Stating that the photographer is unknown and you are the printer is sufficient. If you become rich because of those prints, be prepared to share the wealth with the photographer's heirs, if they ever trace your work and prove their title.

Fabrizio

Thanks so much guys. This helps out alot. I would never hint the work was mine. Considering I'm 30 years old and the images are from the 40's I don't think I'd be able to disguise that one!

I just feel some of the images are timeless and need to be appreciated again rather than just be thrown to the antique and thrift shops.

I stopped lending out original negatives after being taken for a ride by train foamers several times too many. I'm glad to see you're taking a reasonable approach to someone else's negatives.

zsas said:

I believe, could be wrong, but there is a law in the US where a origional copyright holder(s) can make a claim that he/she didn't mean to sell/throw out his/her artwork and gain back his/her full rights.

I personally wouldn't go down this route because of too many unknowns and that worry one day that there will be a knock on my door looking for his/her cut of the pie (or more formally a cease and desist)

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They would have to prove the images were theirs.

Ugh. Where are my art history professor and my media law professor when I need them? Sounds like a copyright exam question from media law.

lxdude said:

They would have to prove the images were theirs.

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Agree, I said claim, which means one needs to go to court and the claimant wd have to prove their case to a jury or judge if bench trial, which if they win could be costly. The risk of the photographer or his/her heirs seeing one of these prints might be rather low, but the rail yard/train line could theoretically own the negs too. Could these be dupes too and the orig negs/slides are still in the photog's/heirs possession?

Who's to say, onus is on the OP, seems like a risk to me

What about the ethics of this? Found art is quite gray, dammed if you do, dammed if you....