Copyright schmopyright

[Jen]

Copyrights

While working on my own project over the last few years, I have had to familiarize myself with copyrights, particularly in the area of photographs. I thought I would pass along my findings here. Infringing on someone's true copyrights can be expensive and has likely derailed more than one project. It is up to the author to determine what isn't in or out of copyright for their own security. The laws are pretty much a mud puddle of "…if…but not if… It seems our government can't make anything simple.

The particular photographs I am working with range primarily from 1880s to 1940. Of the things I have learned, photos taken prior to 1923 are in the public domain. Enough time has passed that any copyright at the time of creation is gone. Once an item is out, it cannot be put back in copyright in it's original form (If you use it in a book, the book is copyrighted, but not the photo itself).
One common misunderstanding is that an individual owns the copyright of an old photograph (prior to 1923) if they own the photograph. This is not the case. Generally the original copyright would have been held by the photography studio or photographer, and retained until expiration, passed on the heirs, or sold. Even if any of those events took place, the copyright on these early pictures is up.

Archives and repositories often charge you to publish items in their collections. I refer to this as the '9/10' rule. They have it, you want it, and possession is 9/10 of the law. If you want the print bad enough, you drop $20 or so on it to get a digital copy, then another $20 or so for the use fee so you can publish it. They are very careful not to call is a rights fee because, in most cases, they don't have the rights available to sell.

http://www.copyright.gov/circs/circ1.pdf

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.

And

Mere ownership of a book, manuscript, painting, or any
other copy or phonorecord does not give the possessor
the copyright. The law provides that transfer of ownership
of any material object that embodies a protected work
does not of itself convey any rights in the copyright.

An individual may have what I refer to as an 'effective copyright' if there are truly no other copies in circulation and it has never been shared. As sort of an example, my family had a photo of my father as a small child. He often (playfully) threatened to burn it. Over time, two more identical prints appeared at our house. If he had burned the first (or, in our discussion, kept it secure and private) it would not have gotten out. When more came to the surface, his percieved control was lost. Once it was duplicated, scanned, copied or otherwise shared, it was out. I don't know why he didn't like the outfit with the bunnies on it.

Tons more information is available at

www.copyright.gov

but there is a great gadget to help quickly determine if you need to worry about infringing someone's copyright at

www.librarycopyright.net/digitalslider/

[Melvin Graf]

Jen,

 

Outstanding post!  I have known people hounded by image scammers when they posted the scammers' misidentified images publicly.  As you posted:  "Of the things I have learned, photos taken prior to 1923 are in the public domain."  Yep, they sure are.  :)

 

One image scammer in Missouri puts a copyright symbol on most (but not all) of the 19th Century images presented on his website even on those he doesn't have ownership of saying in effect that they are copyrighted by "someone."  Yeah, right! 

 

Recently, a fraudulant Jesse James claimant in Texas bought a copy of a 19th Century photo widely distributed as a post card.  The photograph contains a bonafide image of Zerelda Samuel (Jesse James' mother) but the fraud has misidentified other figures in an attempt to make this photograph the "Holy Grail" of her connection to Jesse James.  The dolt paid over $1000 for a copy of a copy done on modern photographic paper.  I'm sure it is by now "copyrighted."  :)

 

Best of luck on your project and thanks for benefiting all of us with your hours of research about this important issue.

 

Mel

 

P. S.  You've coined a great phrase, "copyright schmopyright."  May I quote you with credit since I would say you've copyrighted the phrase?

[Bob Boze Bell]

Very timely post. Just had this conversation about some of our photos in our collection. Thanks.

[Gay Mathis]

Thank you, Jen, for this informative post about copyright, photographs, etc., and your experience dealing with it regarding your project..

 

[Bungalo Bill]

Not to muddy the water, but I have seen sellers on eBay who claim copyright for their "digitized" versions of old photos.  I do not believe that would hold up in a court, but I am no attorney, civil or otherwise.

[Bungalo Bill]

Jeff, my guess would be "no" unless the copied photo is but a minor portion of a larger scene.  If it is a full or partial copy of the original, then it is just that, a copy.  I could see some shyster claiming otherwise, but I would debate it.

[Gay Mathis]

We have some people making claims they own the copyright..They buy a modern copy print of a photo from eBay, and start claiming copyright on that..Never occurs to them that modern copy had to come from an original to begin with..

[Michael]

Copyright claims on misidentified images. Sounds like the tail wagging the dog.

[Fran Bolton]

I was not able to get to the site from your link, so I am reposting it in case others had problems:

http://www.librarycopyright.net/digitalslider/

This is very interesting. What I am reading is that if someone did hold a copyright on a photo, and they sold that photo, the copyright is no longer effective?

Another question.... if someone made a copy of that out-of-copyright photo, and typed something on the photo, does that make his copy copyrighted?

Whew!

Fran

 

[Jen]

Fran,

 

Selling the photo isn't the same as selling the rights. If you go to Olan Mills and have your picture taken. you buy the prints but you don't own the copyright. From the second quote above:

Mere ownership of a book, manuscript, painting, or any
other copy or phonorecord does not give the possessor
the copyright.

 

As for your second question, and some of the others posted below...ummm...good luck figuring that out.

 

Jen

 

[Sally Regina Anderson Goodson]

That's funny, Jim Hardy.

 

Jen, thank you for this information.