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