Sold old Negatives, Can I Still Post Online Pictures?

I have tried researching this question and thought maybe I could get some help here. My father passed away a few yesrs ago and he had hundreds of old car racing NEGATIVES and photos, he was a photographer and had his own darkroom. I sold many of his shots that were negatives to many different people. I recently posted a few of his photos on a car racing website to show his work and someone who had bought some of his negatives was upset that I posted some photos. When I originally sold the negatives I put a note with them saying they were free to use them as long as they acknowledged my father as the photographer of the photos. I did not release any copyrights, etc..to the negatives, as I said I told them they could be used however they wanted with the acknowledgement. All the negatives were prior to 1978, all are from 1940's to 1960's. I would like to post some more of his work, I am not charging anyone for the photos.

AFAIK if you didn't release the copyright the intellectual property (the image) is still yours, but with the caveat of being under whatever terms of copyright he used.

I recently posted a few of his photos on a car racing website to show his work and someone who had bought some of his negatives was upset that I posted some photos.

 

Firstly I think that "upset" should be defined as it occurs to me that this might be a storm in a teacup and might easily resolved or ignored.

 

Secondly, apropos the implied question about your 'rights' and thus how you might address the issue of ‘upset’ - it seems to me that you need to be sure that the copyright of the images is in fact yours and that will depend on several matters the main ones being:

 

1. Your location (hence) the legal jurisdiction which will applies to the copyright of these images (it does vary considerably)

 

1a. Secondarily the location of the person who is ‘upset’ (can be complicated if they are in another country, but they are likely not)

 

2. The establishment that your Father owned the copyright in the first instance (for one example only, he may not if he made the images during and as a direction of paid employment; there are other examples that dispel the wide held belief that ALL photographers ALWAYS have the copyright immediately the shutter is released)

 

3. The Will, Probate and Inheritance laws in that jurisdiction (to confirm that you did indeed inherit the copyright)

 

4. The term of the copyright (how long it lasts) in your jurisdiction

 

***

 

My advice is, after assessing what “upset” means (i.e. does it have any real impact on you). If it is going to have an impact on you, then seek to smooth it over with the person who is upset.

 

On the face of it, it seems to me a telephone conversation explaining that you inherited the copyright and reiterate that what you sold to them was the right to use the image with a credit to your Father, explain that is USAGE RIGHTS, and not COPYRIGHT. Explain that these two rights are different but are often misunderstood and confused.

 

Maybe a polite telephone conversation by way of education and explanation of the fundamentals of “Copyright” and “Usage Right” would be the best route to calm the storm in any case.

 

WW

If we assume that you're in the USA and your father was NOT a professional photographer, that might have taken some of these images while employed "for hire", then it's likely the copyright is yours. When you "sold" the negatives, if you didn't transfer the copyright via a licensing agreement, then that would not have erased the existing copyright. OTOH, if your father was a professional and some of the images were published in magazines or papers, then you may or may not have a problem, because the Publisher may actually own the copyright. That pre-existing licence would be the cause of your problem, not the more recent transaction with the negatives.

 

Generally, if he just enjoyed taking pictures of races and race cars and didn't Publish them or give the right to Publish them to anyone else, then your buyer should have been more careful, if they were expecting exclusive copyright ownership. You message to the buyer(s), as you report it, would not have created restriction on you. You basically gave them a non-exclusive right to publish, with attribution, if your description is accurate. That's a limited use and doesn't put a restriction on you.

If you keep the images, then what, exactly, did you sell to the buyer?

 

Regardless of the letter of the law, it seems to me that you can't, in fairness, sell something and keep it at the same time -- at least not unless this was made explicit to the buyer at the time of sale.

Buying a CD by your favorite band doesn't give you rights to profit from broadcast or re-sale of that music. It's a very appropriate simile, as intellectual property laws apply to both cases. Unless the actual rights were part of a contracted sale agreement, the copyright owner still retains ownership of the intellectual property. The OP described that the buyer was given rights to use the images, with proper photo credit. That would seem to me a clear case of usage rights.

If you keep the images, then what, exactly, did you sell to the buyer?

 

Regardless of the letter of the law, it seems to me that you can't, in fairness, sell something and keep it at the same time -- at least not unless this was made explicit to the buyer at the time of sale.

 

If we follow your "fairness" standard, selling people DVDs of movies, phonographs of music, ect, means they own the copyrights to the content found on such tangible items. The person bought a tangible item. that is all they are and should be entitled to.

If we follow your "fairness" standard, selling people DVDs of movies, phonographs of music, ect, means they own the copyrights to the content found on such tangible items. The person bought a tangible item. that is all they are and should be entitled to.

 

Actually, it's more like selling the master tapes of the original recording, in the music example. I consulted with a company that owned some master tapes but didn't have releases from the artists. The tapes proved worthless, without a whole lot of digging to obtain the releases. The owners of the tapes had visions of millions and ended up with a very expensive to maintain set of physical tapes. At least our OP gave the "buyers" limited usage of the negatives.

The CD/DVD example is particularly inapplicable, since all you own (according to the producers) is a license to view or listen, which you most definitely cannot sell and keep at the same time.

In any case, buying just the media ?? I can't imagine that the buyer thought that was all they were getting. It, in any case, is an ethical issue not a legal one only.

The CD/DVD example is particularly inapplicable, since all you own (according to the producers) is a license to view or listen, which you most definitely cannot sell and keep at the same time.

In any case, buying just the media ?? I can't imagine that the buyer thought that was all they were getting. It, in any case, is an ethical issue not a legal one only.

 

When buying and selling image media, physical or digital, I think that following the law is ethical. In my personal experience, I've run across a lot of ignorance in the Sharing (on social media and otherwise) and selling of images. Because of that wide spread ignorance, I think buyers and sellers serve themselves well by having written contracts, signed by both sides. When in doubt, consult an attorney.

 

I just consulted my attorney yesterday about selling an image, for use as wallpaper, which Getty had sold to Travel & Leisure under a non-exclusive license. My agreement with Getty doesn't say anything about wallpaper, but the attorney thinks that I have a strong case that it's the same as a print, which I'm allowed to do. If the prospect comes through and buys, I'll have my attorney review the contract with the buyer.

 

Anyway, imposing a higher "ethical standard" than law puts a burden on the seller. I might feel sorry for a buyer that was ignorant of the law, but I'm not going to change my behavior to console the ignorant. If the sales price was nominal, I might offer to buy back the negatives and then resale them to someone else. Rather than attaching sticky note, next time, the OP should draft up a little licensing agreement and have the buyer sign.

Owning the thing itself doesn’t mean we own the copyright to the thing.

Owning specific physical items — these negatives in this case — is entirely separate and apart from owning any copyright there may be in the items. The U.S. Copyright Office explains that:

I can buy a copy of a book — and then give my copy away, donate it to a library, loan it to a friend. But owning my copy of the book doesn’t give me the right to make more copies and sell them to others. Just because these are photographic images doesn’t change the analysis. The Copyright Office specifically notes on its website that:

The CD/DVD example is particularly inapplicable, since all you own (according to the producers) is a license to view or listen, which you most definitely cannot sell and keep at the same time.

In any case, buying just the media ?? I can't imagine that the buyer thought that was all they were getting. It, in any case, is an ethical issue not a legal one only.

 

Okay, as someone who deals regularly with music publishers regarding copyrights both in audio and sheet music form, I most certainly disagree with you on the applicability of the music simile.

 

The OP didn't disguise the copyright to the buyer, she specifically said she granted usage rights. I do not see where there is a violation of ethics or intent to defraud here. That seems pretty clear to me. The intellectual property is not the film negative, it is the art stored upon it. I give my wedding clients a USB drive with the images on it. They know, according to our contract, that that USB comes with usage rights, but not a copyright. In other words, and this is described thoroughly in my contract, they have rights to print and publish *with photo credit* but have no commercial ownership of the images. This is not an unusual approach, nor is it any sort of attempt to sneak the copyright ownership by the client.

 

If a buyer purchased the negatives for use only and does not understand the difference between usage rights and copyrights, it is the buyer's fault for not being educated in the matter.

If you keep the images, then what, exactly, did you sell to the buyer?

 

Regardless of the letter of the law, it seems to me that you can't, in fairness, sell something and keep it at the same time -- at least not unless this was made explicit to the buyer at the time of sale.

 

Quite possibly the OP sold some negatives but also kept copies (probably digital copies) of those negatives.

 

It occurs to me that she sold the negatives with USEAGE RIGHTS provided that there was attribution to her Father as the Photographer, but she did not transfer the Copyright of the negatives to the buyer.

 

Subsequently, the OP published some of the images from the copies of the negatives that she sold and the purchaser of those negatives is upset by the publications of those images.

 

Maybe the Original Poster can confirm or correct my interpretation of her opening post.

 

WW

caveat emptor, never give a sucker an even break. nice.

caveat emptor, never give a sucker an even break. nice.

 

If that response is to my interpretation of what could have happened, then my opinion is that response is certainly NOT with an understanding of how photography works and has worked for many years.

 

For example it is quite common to sell a digital file with usage rights ONLY and not transfer the copyright - and also keep a copy of that digital file..

 

There is absolutely no difference if one were to sell a film negative (or a transparency) with usage rights ONLY and not transfer the copyright - and also keep a copy of that negative (or transparency).

 

In both cases, the Photographer having kept the copies is free to publish those images because s/he has retained the copyright of them. Such practice has been common for decades.

 

It is not so much about "buyer beware" - it is more about the very common confusion between USAGE RIGHTS and COPYRIGHT.

 

WW..

Edited July 20, 2017 by William Michael

Both the seller and the buyer were clearly uninformed, or this thread would not exist.

 

my response was not to anyone person, and I assumed from the start that something like the hypothetical scenario was the case.

, , , my response was not to anyone person, and I assumed from the start that something like the hypothetical scenario was the case.

 

Understood. Thanks for explaining.

Hopefully the OP will return and expand providing more clarity about her situation.

 

WW

It is a reasonable assumption to make that a person making a purchase of intellectual property understands the concept of usage rights versus copyright ownership. The OP didn't sucker that person, the OP acted within the very normal process of that type of transaction. I don't buy a piece of sheet music, make an unauthorized recording of the song, try to market and sell it, then get angry that the sheet music publisher didn't warn me that I wasn't buying the copyright to the song along with the sheet music.

 

The buyer was uneducated, and it is not the OP's responsibility to assume that everyone who buys from her is uneducated. At no point, based on the OP's post, did I feel she was trying to cheat someone who didn't know better. In fact, she wrote a reminder indicating that proper photo credit would be required. Not only do I think the OP acted ethically, I think she gave the buyer ample opportunity to ask about photo credit and rights.

 

On a second reading of the original post, it is evident the buyer didn't think the OP had the rights to use the photos herself later. This indicates to me that the buyer thought they were getting some sort of exclusivity. If they were trying to gain that exclusivity and made the purchase without a contract handing the copyright over, then they acted unwisely.

. . . It is a reasonable assumption to make that a person making a purchase of intellectual property understands the concept of usage rights versus copyright ownership. The OP didn't sucker that person,.

 

Yep I concur. On the face of what was written there was NO "suckering" at all. Personally I think it irrelevant to introduce the notion that the purchaser was "suckered".

 

***

 

. . . On a second reading of the original post, it is evident the buyer didn't think the OP had the rights to use the photos herself later. This indicates to me that the buyer thought they were getting some sort of exclusivity. If they were trying to gain that exclusivity and made the purchase without a contract handing the copyright over, then they acted unwisely.

 

Agree again. I think this matter is all about ignorance and confusion concerning "usage rights" and "copyright". That ignorance and confusion is widespread

.

WW

Both the seller and the buyer were clearly uninformed, or this thread would not exist.

 

my response was not to anyone person, and I assumed from the start that something like the hypothetical scenario was the case.

 

Well, when neither party knows what's "right", then I say, "Fall back on the law." The law supports what she did.

 

Some of us would feel no guilt and some would. Anyone that feels guilt might offer to buy the negatives back.

 

Those of us that understand the law, if only to a small degree, tend to make our sales with accompanying licenses or releases, signed by buyer and seller. Newbies, OTOH, tend not to use contracts, thinking, "I hardly ever do this, what could go wrong?" Here, we seem to have two newbies both the buyer and the seller. Lesson learned, but only by two. Maybe the thread will move a few future newbies to use contracts sooner.

This is slowly becoming a classic case of a collision between the art & the business of photography.

>snort<

 

Yeah. It's not a coincidence my book is called "Balancing the Art and Business of Wedding Photography"

 

It's a real problem with many photographers. Artists don't always make good business people.

Seldom if ever IMO.

I was trained in "The Business of Photography", I specifically looked for a hardcore business & science oriented course.

My favorite bit of legalese (included in every contract I ever used) was "Copyright to be released as per (agreement details) upon payment of invoice".

(I had some big clients & they were always the slowest & worst payers).

One after exhausting every other possibility I sued for copyright infringement as they'd repeatedly published them bot in house & in trade papers!

Slightly off the main topic - but:

 

Seldom if ever IMO.

I was trained in "The Business of Photography", I specifically looked for a hardcore business & science oriented course.

My favorite bit of legalese (included in every contract I ever used) was "Copyright to be released as per (agreement details) upon payment of invoice".

(I had some big clients & they were always the slowest & worst payers).

One after exhausting every other possibility I sued for copyright infringement as they'd repeatedly published them bot in house & in trade papers!

 

What is your estimate of ALL the COSTS to your business (including your TIME at market rates to proceed with: "every other possibility" and "sued for copyright infringement" . . .

 

i.e. my simple question is: Was it worth it to have those "big clients"?

 

My point being, (and general comment):

 

There comes a tipping point where having "big clients" as customers will actually be taking money from a business's NET Profit, rather than adding to it.

 

Turnover is one thing and it is always nice to have an extra (example only) $200,000 turnover per year on a 2,000,000 T/O Business by taking on a "big client". On the face of it, a 10% increase in turnover seems fantastic.

 

But: if without that "big client" the NET profit is running at 17% and with the extra 200,000 T/O the Net drops to (example only) 15%, then, effectively the business PAID 10,000 after tax cash, just to have that "big client".

 

Mathematics here:

 

2,000,000 @ 17% = 340,000 Net Profit

2,200,000 @ 15% = 330,000 Net Profit

 

WW

What are the rights of a purchaser of a negative assuming there are no usage or copyright agreements?