Scanning Kodachome slides for sale as stock photos.

If I purchase work that is simply being gotten rid of, who does own the rights? Certainly I would not be able to ethically claim it as my work but if there is no family and it has not been sold or donated by the artist, who does it belong to?

Copyright law is clear on this. Unless someone signs over the copyright, it isn't yours. It belongs to people who may or may not be identified.

I'm also asking because I don't know if it's not actually illegal. I'm not sure what the gray area is here, and the law seems pretty undecided and/or vague. I'm not a lawyer and the lawyers I know don't practice this type of law, but even by Googling, I see nothing but question marks.

 

I don't think there has ever been a legal case involving these facts:

A guy finds a dusty box of 60-year old tourist film slides at a flea market, scans a picture of say -- a mountainside in Tibet with two goats, edits it, sells it, and gets sued.

I'm almost certain it would be a first.

 

Is it abandonment? Is it an orphaned work? Is my editing enough to make it an original derivative work?

A parallel might be drawn here. If you went to a garage sale and found an original Chagall, bought it for $5, then tried to profit off of its sale, I think that would probably be okay if you were selling it as a Chagall. If you tried to sell it as your own work, that would be a different story. I don't know how intellectual property rights work with respect to purchasing the print representation of someone else's work and then profiting from it. This is where speaking with an IP lawyer would be beneficial. If your agreement in the purchasing of the property included rights to own the intellectual property contained therein, and assuming the person selling it had those rights to begin with, then I imagine you would be in the clear. But, if you didn't get the rights to the intellectual property, then all you bought was some slides. You didn't buy the intellectual property contained in those slides. When you buy a CD of music, you are buying the CD, not the intellectual property contained in that CD.

"The law is less ambivalent than you. Even fair use requires substantial modification to qualify as a copyrightable work.If this was a grey area, films that were digitally reconstructed would lose their copyright. That's not happening."

 

This is why I had to create a pseudonym before asking this. I knew it wasn't long before I got a long drawn out moral lecture.

 

You lie (father's photos) and violate the intellectual property of others, and then get uppity when someone calls you on it? Why are you surprised by any of that? If you came here looking for validation on your violation of intellectual property laws, you're not going to find it. We respect your desire to be entrepreneurial, but not through illegal means. Contact the seller and obtain rights to the images. If they cannot give those rights to you, then THEY are at fault and you should get your money back.

To the guy who called me a copyright violator, think again. I just read this great article: Legalities of photo restoration services - Is it a copyright violation?

 

Here are the key excerpts:

 

"Your client brought you an old, water-damaged photo of her Great-Grandma Mabel that she found in her mom’s attic. She wants you to restore the photo. But, is it legal? Is it a copyright violation? These are questions you should ask before you agree to restore any pictures.

 

"Copyright law is a confusing area of the law, even for lawyers. Many areas of copyright law have been intentionally left undefined so that judges can make decisions based on each case. This makes it even more confusing. But, there are a few things for you to consider to make an informed decision as to whether or not you want to agree to restoration of another photographer’s work."

"There is an argument that photo restoration is creating a new work, making it transformative, but (again) there is no clear answer. One Supreme Court case (A.V. v. iParadigms), stated that work “can be transformative in function or purpose without altering or actually adding to the original work.” This would seem to support the argument that restoration is transformative and, therefore, would qualify as fair use, but until a case is actually tried there is no clear answer on which way the courts would rule."

So much for quickly labeling me a copyright violator and a liar.

Look, all of your vitriol aside, the likelihood that anyone is going to recognize photos of a landscape taken decades ago are pretty slim. If you're asking whether it's legal or not, the answer is no, it is not. It is not your work and you cannot legally profit from it. Are you going to get caught? Probably not. I'm sorry if you don't like the answers you are being given, but they are accurate. A derivative work is not created by you simply cleaning up an image, any more than a person restoring and repairing the Mona Lisa could suddenly take credit for it. Yes, photo restoration as a derivative work hasn't been challenged in court, sure, but there's very likely a reason for that. You're also not asking whether restoration as a new work is derivative, you're asking if you should be able to profit from buying some old slides and selling the photos inside as stock when you have no rights to those images. Just contact the seller and get the rights, then the whole discussion is moot.

The fact alone that you hid your true identity in order to ask this question pretty much sums up whether or not you are aware of the potential illegal nature of your endeavor.

Copyright law is clear on this. Unless someone signs over the copyright, it isn't yours. It belongs to people who may or may not be identified.

Spearhead,

It's more complicated than that. This isn't a pure copy. There is work being done by me. That includes scanning, editing, and restoring an old film photo. Not only that, but the medium is being changed from analog to digital. Arguably, the work I'm doing is enough to create a separate body of work. The time required to do this is vastly greater than the time it took for the unknown photographer to point his camera and press the shutter button. The copyright laws are not clear on this. Not as clear as you seem to think.

Look, all of your vitriol aside, the likelihood that anyone is going to recognize photos of a landscape taken decades ago are pretty slim. If you're asking whether it's legal or not, the answer is no, it is not. It is not your work and you cannot legally profit from it. Are you going to get caught? Probably not. I'm sorry if you don't like the answers you are being given, but they are accurate. A derivative work is not created by you simply cleaning up an image, any more than a person restoring and repairing the Mona Lisa could suddenly take credit for it. Yes, photo restoration as a derivative work hasn't been challenged in court, sure, but there's very likely a reason for that. You're also not asking whether restoration as a new work is derivative, you're asking if you should be able to profit from buying some old slides and selling the photos inside as stock when you have no rights to those images. Just contact the seller and get the rights, then the whole discussion is moot.

 

The fact alone that you hid your true identity in order to ask this question pretty much sums up whether or not you are aware of the potential illegal nature of your endeavor.

I hid my identity because I know how emotional society is and it's shoot first and ask (the legal) questions later. I should be able to candidly ask about these things without being labeled a crook, but unfortunately, that's not possible. These questions should be asked. This is how laws are made. The law is not clear on these issues. That is why the Supreme Court exists. There are people on both sides of this argument.

Beyond the legal jargon, I'm simply asking a philosophical question more than anything else. Ethics.

Who am I hurting by scanning these dusty Kodachromes?

Am I depriving someone of royalties?

Am I harming society as a whole?

Is society worse off if people restored old photos and sold them?

Does it make me immoral to restore someone's old abandoned film and make money off it?

In my opinion, the answer is no to these questions.

The orphaned work legislation should have been passed into law. Hopefully it will soon.

A parallel might be drawn here. If you went to a garage sale and found an original Chagall, bought it for $5, then tried to profit off of its sale, I think that would probably be okay if you were selling it as a Chagall. If you tried to sell it as your own work, that would be a different story. I don't know how intellectual property rights work with respect to purchasing the print representation of someone else's work and then profiting from it. This is where speaking with an IP lawyer would be beneficial. If your agreement in the purchasing of the property included rights to own the intellectual property contained therein, and assuming the person selling it had those rights to begin with, then I imagine you would be in the clear. But, if you didn't get the rights to the intellectual property, then all you bought was some slides. You didn't buy the intellectual property contained in those slides. When you buy a CD of music, you are buying the CD, not the intellectual property contained in that CD.

A more accurate comparison would be finding a work of art in a flash drive or SD card, opening the file, modifying it slightly, adding a layer or filter, and then printing it out on paper, and selling it. I've added several layers of changes, and changed it's medium from digital to paper. Is it a new work? Like I've said before, the law is NOT clear on this.

The CD example would be obvious copyright infringement because it's a pure copy of the original with no modifications. Now, if the original work was on an old phonograph cylinder, and the sound was clouded by static, and I took that cylinder and converted the sound to digital, removed the noise, enhanced the sound, and burned it on a CD. Is it a new work? I think it would be. Or at the very least, I would be insulated from major penalties.

Oh come on, time to stop with the garbage:

 

This would seem to support the argument that restoration is transformative and, therefore, would qualify as fair use,

Stock IS NOT FAIR USE.

Yes it is fair use in my opinion, especially if the restored photo is an orphaned work. The copyright office says some 50% or more of copyrighted works are orphaned works that people can't use because of this exact problem. People are scared to use them. But if the original creator disappeared, made no attempt to monetize his work, and abandoned it, then why is it bad for society, or for the industry, for me to restore the photos and sell them? What's "garbage" is the idea that by "violating" the unknown creator's copyright, I am "hurting" that person. That absurd. If that person came forward somehow, then I would pay them their fair share.

Why isn't this signed into law? Because the big recording studios and major IP holders lobby Congress to make the copyright laws stricter for their benefit. They don't want people using orphaned works. Even when it's impossible to find the original owner.

In the digital age, there is no excuse for an artist to leave their work behind unsigned. Photo websites all have usernames, digital files contain tags and meta-data, works on paper should be signed, etc. If you leave behind orphaned work, then it's your negligence.

How is this any different than if you drop coins on the floor or leave your couch on the curb and someone drives by and takes it? That's not theft, that's abandonment.

Who am I hurting by scanning these dusty Kodachromes?

Am I depriving someone of royalties?

Am I harming society as a whole?

Is society worse off if people restored old photos and sold them?

Does it make me immoral to restore someone's old abandoned film and make money off it?

 

In my opinion, the answer is no to these questions.

You are hurting the photographer whose intellectual property you are profiting from.

You are depriving the owner of the intellectual property of royalties.

Not all crimes "hurt society as a whole" but that doesn't mean they are legal.

If I restore a Picasso and pass it off as my own, is society worse? Yes, because the artist whose intellectual property is being stolen is part of society. A crime against one that doesn't affect 8 billion other people doesn't mean the crime is insignificant.

Is it immoral for you to make money off of someone else's creation? Yes.

You can have whatever opinion you want, but the law is the law.

A more accurate comparison would be finding a work of art in a flash drive or SD card, opening the file, modifying it slightly, adding a layer or filter, and then printing it out on paper, and selling it. I've added several layers of changes, and changed it's medium from digital to paper. Is it a new work? Like I've said before, the law is NOT clear on this.

 

The CD example would be obvious copyright infringement because it's a pure copy of the original with no modifications. Now, if the original work was on an old phonograph cylinder, and the sound was clouded by static, and I took that cylinder and converted the sound to digital, removed the noise, enhanced the sound, and burned it on a CD. Is it a new work? I think it would be. Or at the very least, I would be insulated from major penalties.

Nope. I have done a LOT of work in intellectual property cases and the definitions of derivative work, and your arguments would not hold water in court. Your rationalization that it's not hurting anyone is nothing more than that - a rationalization. You asked if it was right. It isn't. You asked if it was legal. It isn't. Will you get caught? Probably not, but don't think for a moment we're going to tell you it's okay.

In order for something to be a derivative work, it has to be a completely new work with a completely new purpose. If you don't think you're breaking the law, I triple dog dare you to do it. Don't say you were not warned.

Moderator Note:

The OP has his views and the premise of the thread was asking for opinions – all those received are similar in content.

The OP has been provided advice apropos Copyright Legislation in the USA and also referenced to the Berne Convention for matters dealing with countries that are signatories to that convention and he should interpret the law and make his own actions as he sees fit.

This thread has now run its course. It is bogged down and is the same repetition of statement and rebuff.

Given the repetition; personal comments; sarcasm and misquoting; the thread portrays elements typical of a thread prone to a rapid and further demise. Accordingly this conversation is now closed.