ownership of unclaimed photos

Discussion in 'Film and Processing' started by greg_miller|10, Sep 28, 2011.

  1. We had one client about 5 years ago that had us process several rolls of vintage film for them and have never paid us. We have tried on repeated occasions to get payment from them but have been unsuccessful.
    Just lately our company has been compiling sample photos of our processing of old film. This customer has some fantastic picture dating back into the 1940s that we would like to use as samples. Does anyone have any idea if at this point, we own the pictures or not. From an ethical stand point I feel that I should be able to use them because they asked us to do a service for them and they have never paid us for that service.
  2. You really need a Copyright lawyer. The relevant US Copyright laws are those for before 1973. Before 1973, Copyright did not automatically exist at the creation of the image. You had to make deliberate efforts to place something under Copyright, for instance a Copyright notice and submission of two copies to the Library of Congress.
  3. As an amateur lawyer, consider the possiblity of your laws regarding:
    "abandoned property n. property left behind (often by a tenant) intentionally and permanently when it appears that the former owner (or tenant) does not intend to come back, pick it up, or use it. Examples may include possessions left in a house after the tenant has moved out or autos left beside a road for a long period of time, to patent rights of an inventor who does not apply for a patent and lets others use his invention without protest. One may have abandoned the property of contract rights by not doing what is required by the contract. However, an easement and other land rights are not abandoned property just because of non-use."

    As an amateur ethicist, though, I would find other examples to use.
  4. Thank you John and Brian. It's helpful information. Ultimately a copyright lawer would be the way to go but on the other hand we can simply get permission from other people to use their photos. These are just such amazing pictures though and it would seem a shame if they were to remain forever unseen on a hard drive somewhere.
    Question for Brian. For the sake of respectful debate, I'm very curious why as an ethicist you wouldn't use the pictures? My feelings on this is that a person has asked us to do a considerable amount of work for them and after seeing the preview of the pictures and realizing that for whatever reason they didn't want the pictures, decides that they wouldn't pay us for the time and expense involved in the work. Surely the ethical concerns are theirs and not ours. The pictures are in no way offensive or would in anyway reflect poorly on the subjects. Most people in the pictures would no longer be alive. My opinion is that they're beautiful and should be shared and the person who decided they would basically "dine and dash" at our company has no claim to our respect or the pictures they abandoned. Your thoughts?
  5. In the era before the Digital Millennium Copyright Act, I'd have said "go for it". But the dying media companies are trying to make everyone criminals, and making Copyright law more and more aggressive and unreasonable. That is why the DMCA is so scary.
  6. I'd suggest that if the pictures are that amazing, you look into donating them to some museum that will curate them, perhaps even exhibit them. There are on-line museums of photography to display them, as well as physical art museums and galleries.
  7. Mr. Miller..
    I would think that in at least some state jurisdictions you might have a mechanics lien, (being unpaid for work on their property which is still in your hands) on the entire property, copyright rights and all? Those states with mechanic’s lien laws usually place some burdens and procedures on the “perfection” of a lien and disposal of the property to satisfy the debt. Some states make it more of a chore than other states to comply.
    A. T. Burke
  8. The older copyright laws were superseded by the Copyright Act of 1976, which took effect 1/1/1978.
    Quoting from the US Copyright Office website:
    "Works Originally Created Before January 1, 1978, But Not Registered or Published by That Date
    These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright of these works is generally computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120 terms apply to them as well."
    The website also states that mere ownership does not give the owner copyright.
    So possessing the physical objects (the processed film) does not give you copyright. I agree that a copyright lawyer should sort this out for you.
    I'm interested to see if you can display the actual objects (processed rolls of film) as samples of your services. I wonder if ownership of the processed rolls (which might be yours now) would give you the right to display them and/or print from them and display the prints for commercial purpose if you did not sell the prints.
    A lot of people own pictures made by someone else, which they came to acquire as abandoned property; e.g., bought at a yard sale, contents of an abandoned storage unit, etc. Some have copied them and displayed the copies on a personal website, incorporated them into books or other presentations, etc. If another person could show origination I think they could claim copyright if they are otherwise entitled to it even if they no longer have ownership of the image, if origination falls under the time frame specified in the Act.
  9. dying media companies ... criminals ... DMCA is so scary.​
    John: you don't have to take full advantage of the DMCA's provisions to protect your own work. And if you are right about it being better not to have one's work thusly protected, you should be able to pursuasively convince fellow artists to license out their work under looser terms, which they absolutely can do, right now (and indeed, many do).

    In the meantime, the DMCA is how a lot your fellow photographers, right here (you know, the Eeeeeevil Corporate Goons who use this web site right along with you) go about keeping many parasites who pirate their work from continuing to use it without permission. And when those same photographers want to make their work something that can be passed around and used without explicit permission and consequence, they have every mechanism they need in order to do so.

    I expect that a lot wedding specialists, amateur artists, fine art photographers, stock photographers, activists/bloggers, and others would be disappointed to hear you'd prefer they didn't have the DMCA's protections.
  10. Hi Greg, I like respectful discussion and welcome your follow-on question. I totally agree wiht you that folks who commission work and then refuse to pay are the epitome of unethical. In fact, i wish that situation coulod be considered theft... because they stole your time and effort. In terms of using property resulting from that sort of "transaction" I, personally, would still consider the work to be theirs (or whoever originally shot the film) unless it could be lawfully converted. Not really knowing the law really, it might come down to a matter of whether it is worth the hassle to go through the legal clarification, etc. Maybe I'm a push-over, but when I get taken advantage like that I prefer to "write it off" and move on rather than expending extrordinary effort to either get compensated, getting even, or even figuring out how to make the loss work for me. Ethics, though, are personal and whatever you chose to do is what should prevail over opinions gathered from the internet. Good luck!
  11. From an ethical stand point I feel that I should be able to use them because they asked us to do a service for them and they have never paid us for that service.​
    Your business was hired to process a physical object. The business is owed the agreed upon price. What you are regarding as ethical is seizing other distinct, different and potentially valuable assets. Suppose, for discussion, the imagery happens to be worth $50,000. According to your ethics, such an asset can rightfully be seized and exploited as seen fit. Merely because you weren't paid the twelve bucks or whatever the price was. Is that just? I'll let you decide.
    One consideration is what you would do if you ruin a customers images during processing. Does your lab take responsibility for the loss of the physical film or does it also reimburse the customers for the loss of the potential value of the imagery? If five rolls of a wedding get botched and the photographer loses $1500 dollars as a result, does your business pay them that? If not, why would you think you are entitled to the value of the intellectual property if the customer doesn't perform their duty but not the other way around?
    Despite these "ethical" discussions, the Copyright Act governs whether or not a use of an image is infringement. Should the copyright ownership still remain with the customer, the business would be disregarding copyright law which is not a very inspiring practice for a company engaged in this particular business.
    abandoned property n. property left behind (often by a tenant) intentionally and permanently when it appears that the former owner (or tenant) does not intend to come back, pick it up, or use it. Examples may include possessions left in a house after the tenant has moved out or autos left beside a road for a long period of time, to patent rights of an inventor who does not apply for a patent and lets others use his invention without protest. One may have abandoned the property of contract rights by not doing what is required by the contract.​
    None of this is applicable. The Copyright Act alone determines the status.
  12. I agree, abandoned property laws do not apply to copyright, only physical property. So you could claim that the
    negatives are now yours. But, you still can't make prints from them or scan them. But if they had paid you to make a
    large print, you could sell the print. My interpretation, I am not a lawyer.
  13. Caveat: I have no legal training. I'm asking questions, not making suggestions.
    If you were to publish the pictures in question, if the original creator protested, what would be their remedy? They could certainly ask you to remove the images from your publications (websites). Can they collect damages? Are copyrights similar to patents in that damages accrue only after a cease and desist order?
  14. Did the client actually take the pictures? If not, then it looks like copyright might not be the problem. Write a letter to the client asking for payment, or if they do not wish to pay, ask for permission for the use of the images.
    If you are in the USA, and they fail to respond, take them to small claims court to get payment for the work. It may not be worth their time to go to court, but it should bring this to a conclusion.
    I am not a lawyer, nor did I ever play one on television.
  15. I know that there are good things about the DMCA. But there are abusive things in there. The records companies are desperate to maintain their former monopoly over the distribution of recorded music, and are going "over the top" to do so. Their million dollar lawsuits against file sharers are an example of that.
  16. But, you still can't make prints from them or scan them.​

    Of course you can. How could the copyright owner know (or care) if they had been scanned or printed? It's just publication/public display which might be a grey area.
  17. It would be interesting to see how a copyright infringement case would play out considering that the (assumed) copyright owner is not in possession of the negatives and has never seen them in a processed state!
    If they are as old as the OP has suggested then it is likely that the client doesn't know what was on the films anyway.
    I think I would use them until the client asked you not too. You can then take the opportunity to give him his bill.
  18. You certainly don't have to assume responsibility or bear liability for your customer's property at this point since most bailment agreements are assumed to expire in thirty to ninety days, and that would be true if they paid for your work or not, but that doesn't give you ownership rights or the right to reproduce any images on the roll. There may even be privacy rights involved if there are photos of recognizable people. Of course, no one but you knows what's on the film. Incidentally, images created prior to 1923 are all free of copyright, the so-called Mickey Mouse rule since Disney managed to work that date into the law because that's when Disney was founded.
  19. Please note: As Mr. Miller is located in Canada, the DMCA statutes do not apply. That being said, there are two relevant clauses in Canadian copyright law, quoted here verbatim:
    (2) The person who
    (a) was the owner of the initial negative or other plate at the time when that negative or other plate was made, or
    (b) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate,
    is deemed to be the author of the photograph...
    (2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.​
    From this, I would say that since you can't prove that the person who took the pictures didn't drop dead 30 seconds after snapping the last shot, the copyright stands at 50 years (standard in Canada). Even if that doesn't stand up, the second clause mentions that if the images are paid for, the copyright goes to the person who ordered them. However, since the person never paid for the scans you made, you own the copyright.
  20. Mr. Henneberger,
    I found your post interesting. May I discuss with you your last point? You said, “None of this is applicable. The Copyright Act alone determines the status.”
    As to “…The Copyright Act alone determines the status.” In my humble non-legal opinion (many board members already know that all my opinions are both humble and always timidly expressed) I would agree that with very few exceptions it does determine the original status. Taking the original status as full intellectual ownership rights, those rights (maybe better called a ‘bundle of rights’) may then be, sold, franchised, licensed, gifted, hypothecated, and/or involuntarily seized by order of Federal, State and Local courts. Most often seizure of property is made due to an unpaid debt to either a government body or damaged individual. If the artist is the entity subject to seizure, the rights that were conferred upon the artist by federal law can then transferred to other entities without interfering with the conferring Federal law. The Federal law then protects those copyright rights on behalf of the transferees.
    As to “None of this is applicable…” I would agree with you and doubt that copyright rights would pass with abandoned property in most instances. In the circumstances of the OP, I’d guess that a Mechanic’s lien, in most states would be a better route.
    Now perhaps someone has a learned answer to a situation that I have had no experience with? Artist White paints a painting, which he sells to Grey under a written contract. The contract in addition to stating that the copyright does not go with the painting also requires Grey to loan White the painting one time for temporary use necessary to make a master copy for reproduction which White may sell without sharing the proceeds with Grey. The right of loan-back expires five years after the sale. Grey leaves the painting in a storage locker and does not pay the locker rent. Two years after the sale, the locker company, after filing notice and waiting the proper time as required by the state and local law sells the contents of the locker including the painting to Black. I presume Black can hang the painting on his wall, sell it and even use it as collateral for a loan, but could not do four color take-offs, make prints and sell them because White still owns that right. Am I correct? I would also presume that White would loose his right to borrow?
    A. T. Burke
  21. Did the client actually take the pictures? If not, then it looks like copyright might not be the problem.

    If you are in the USA, and they fail to respond, take them to small claims court to get payment for the work. It may not be worth their time to go to court​
    In the U.S. it doesn't matter if the customer shot the images. It matters that the lab didn't. Assuming the copyright didn't expire.
    As to the U.S. small claims comment, the part about not being worth it applies, namely, suing for the cost of processing a roll of film.
  22. Brian, I think you hit it "the original photographer" . It is his / her's work. Is that person still alive? Did the photographer that took the photo's bring them in? If not, then it is not their work either and in that case would not have any copyright to them.
    Brian you bring up a very strong arguement on abandon property. I think the lien would be the way to go and let the court decide there about the legality of the copyright.
    Just my $.02. I did not read all the answers and hope this was not repeated Thank you
  23. ed, please realize that I brought the notion of abandon property as a question more than an answer. John H has told us many times in the past that he is a real lawyer (and I believe him) so if he says that is not possible I'd believe him. My understanding about abandon property is that it applies mostly to physical property that is intentionally abandon. What intriqued me and inspired me to add it to this discussion was the notion that it can also be applied to abandon patents. I thought maybe there is a possible relationship between abandon patents and abandon images. It seems from the tenor of John's comments that the copyright law is tighter than the patent law with regard to abandonment and reuse by others. I'd like to know more about that but it is probably beyond the scope of this thread. As another "out of scope" question, I also wonder about the potential use of "somebody elses images" as examples of processes/services rendered under the Fair Use clause. I've done similar in academic papers, but in corporate papers was forbidden by company lawyers. The company lawyers didn't even want to talk about the possibility, they just wanted to reduce the risk to ZERO.
  24. Wow...a lot of interesting and thoughtful debate here. I think there are a lot of odd ball factors here - the film is over a half century old, the work requested has not been paid for, the person who took the pictures and many of the people in the pictures are probably dead and so forth.
    Ultimately I think I will not be using the pictures even though it saddens me that they don't get seen. I've been finding lately that many clients are happy to let us use their images if we ask...in fact many are flattered. Here's one taken in the 1930s we just developed about a week ago and we do have permission to show it as we like. While definitely not stellar in terms of quality, still an extremely charming image.
    Thanks so much for all the thoughtful contributions.[​IMG]
  25. John H has told us many times in the past that he is a real lawyer​
    That's funny. I don't recall EVER saying that much less many times.
  26. I remember a case that went to trial in New York City years ago where a lab claimed ownership of property and copyright because the customer never paid the lab and left the work unclaimed for over a year. The lab eventually took the customer to court to recover payment for the amount of the bill, but the customer counter sued for recovery of his property at the same time. The judge denied that the lab ever had ownership of anything and this was simply a collection case. In other words, if the only value the court places on the matter is the unpaid balance of the lab bill, then the lab never had rights beyond that invoice. I think the judge wanted a simple way out, but that one stood as a test case. After reading that one, I changed my lab agreement to read that the lab was not responsible for unclaimed property after 60 days and I began taking payments before work was begun.
  27. I'm sorry John, maybe saying that you mention it "many times in the past" also includes times I've read your posts and remembered you saying it occasionally... or even maybe just once. You are a lawyer, aren't you? (Not that you contributions here, which I enjoy and value, should necessarily be interpreted as legal advise.) Or am I totally mistaken and just inferred that, convincing myself that you must be a lawyer.
  28. Mr. Castronovo….
    I believe the court ruling would be hard to overturn. To refresh my memory I looked up Bailment on Wikipedia (which is NOT a legal oriented site). See:
    As a Bailment situation, the lab would never own the property short of some type of court order and/or state or local laws regarding unclaimed Bailed property. I would guess the judge considered a year’s holding longer than was necessary under the reasonable care provision. Hence the he ruled that the bill was still owed but reasonable care time had expired and the artist was then not entitled to Tort damages. To overturn, an appeal would have the burden of proof that the judge erred in assigning a year as being beyond reasonable.
    Mr. Miller…
    Further reading on the Wikipedia page may answer the your question. The author of the Wikipedia page claims that unclaimed property that was Bailed (as opposed to other forms of temporary holdings) would escheat to the State. Perhaps the State is the “real” owner of the film unless you can perfect a lien of some sorts against it.
    A. T. Burke
  29. Or am I totally mistaken and just inferred that, convincing myself that you must be a lawyer.​
    From previous posts, I too was under the impression that John was a lawyer although I don't recall him stating as such.
    It could be that he is legally qualified but not practicing or perhaps just well educated in law.
    In any case, his postings are most valuable and usually cut through the myths and speculation with common sense and clarification.
  30. I agree, Steve, with all of your comments. And if John chooses not to clarify/correct... that's fine too.
  31. I am almost positive that John has said he is a lawyer.
  32. Regarding whether John Henneberger is an attorney or not, I don't recall if he has claimed to be a lawyer, and I don't recall if he has ever made a disclaimer about not being a lawyer. There is not doubt however that he freely gives his opinion on legal questions in posts at photo.net.
    Assuming (possibly incorrectly) that he has never clarified his standing with respect to the legal profession, the best thing to do is to assume that he is neither an expert in the law nor a licensed attorney and treat his expressed opinions on the law on the same basis as one would treat legal opinions of most people here at photo.net, i.e. to assume that he is offering a layman's opinion and that he has no particular qualifications that would give his opinion additional weight over the opinions of the rest of us.
  33. Send a stamped, addressed envelope and $5 to the John Henneberger Fan Club and receive a membership card, badge and bi-monthly newsletters!
  34. I'd like french fries with that, please!
  35. I don't know if John H. who posted in this thread is is the same person as John Henneberger, but regardless, the question of whether John Henneberger is a lawyer or not has come up for discussion.
    To answer this question, in a post made by John Henneberger on Photo.net on Mar 04, 2004; 12:28 a.m. the author stated that he is a lawyer. Here is the link.
    Here is the quote. "I'm a lawyer but am not offering anything that should be considered advice."
    Interestingly, the title of that thread was "ownership of negatives", which seems eerily similar to the topic of this thread.
    I suppose, however, that it could be a case of mistaken identity, i.e. John H. and John Henneberger might be different people. Nevertheless, it is an interesting and perhaps notable coincidence that the last post made by John H. was on March 13, 2004, and the first post made by John Henneberger was just three days later on March 16, 2004.

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