Scanning Kodachome slides for sale as stock photos.

Hi,

I'm fascinated by old photos and discovering new ones on eBay. I've purchased some amazing slides of landscapes,from places like Hawaii, Switzerland, Greece, etc. They're tourist snapshots, from the 1950's-1980's. Now that I've been getting into photo editing, I want to buy a scanner capable of scanning the slides in high resolution.

I'm also interested in potentially selling them on stock photo sites like Shutterstock. Not really for profit, but to make back my cost of purchasing the slides and the scanner (I doubt I'll make much off them).

I've read some posts pointing out potential copyright issues. It is my view that the photos are now mine, and the previous owner abandoned them, even though the copyright was never transferred. From what I read, the copyright law is a bit iffy when it comes to abandonment. If there was ever a case to be made in regard to abandonment, this is it.

Furthermore, how on earth would anyone be able to recognize a landscape photo from 70 years ago? Not only to identify it, but determine that it was taken by them or a relative. Then they would need to prove it. I think the odds of that happening are slim to none. Basically zero.

Regarding the documentation required by the sites -- what's to prevent me from claiming that these photos are my "father's" photos that I found in the "attic"? My father has passed away, so I am entitled to his estate as his only heir.

Despite the legal issues that exist here, I just don't see a potential liability. Especially considering that I'm not going to scan photos with recognizable faces.

What do you all think?

There's an old saying from the crash of '29 "He who sells what isn't his'n buys it back or goes to prison." That of course, isn't likely, but you would be selling photos you didn't take. I would hesitate to do that even with my Father's voluminous world wide collection,, He is long gone, and we bear the same name. I suppose, since you bought the slides, there is some cover in selling things you bought. You'll have to decide what works for you ethically.

Why? Who would challenge your father's photos in court? Who would sue over such a thing?

Ethically, I think it's fine. I feel like I rescued these slides from obscurity, and hope to edit them so the world can see them. I don't think I'm taking any potential profits from anyone's pocket or depriving someone of royalties. They abandoned the photo decades ago.

Don't know much about stock photo sales, but here are the Submission Terms for "Istockphoto":

Getty Images Work With Us | Terms & Conditions

If you are comfortable making the representation as per section 2, then so be it.

Don't know much about stock photo sales, but here are the Submission Terms for "Istockphoto":

 

Getty Images Work With Us | Terms & Conditions

 

If you are comfortable making the representation as per section 2, then so be it.

It says that I warrant that the content is my "original creation". I guess it depends what "original creation" means. Does it count if you take a photo from a slide, modify it in lightroom, apply filters, adjust the clarity, remove grain, resize, and convert to .jpg or .png? If so, then yes, it is my original creation.

. . . Regarding the documentation required by the sites -- what's to prevent me from claiming that these photos are my "father's" photos that I found in the "attic"? My father has passed away, so I am entitled to his estate as his only heir.

Probably not much is stopping you.

But that doesn't make it any less of an untruth.

WW

So I've spent a few hours down the legal rabbit hole known as Google search. It appears that there are a couple of important issues here, for anyone that is wondering, or wants to add anything.

The first is digital copies of works that were never digital as originals. There seems to be a legal debate/gray area here, and some courts have ruled that the digital copy is a separate copyright, and others have ruled it is not. Also, some courts disagree on which modifications would suffice and how different the image has to be. I've found one Supreme Court case, but it seems really broad since it did not establish the minimum threshold for modifications needed to regard a work as "original" in it's own right. It also didn't precisely define "original" -- or at least, by digital age standards (SCOTUS cases were all in the early 90's) -- hence the subsequent legal debates about digital images.

The second is orphaned works (the Kodachrome slides are the perfect example), where the original creator cannot be identified or found. Even the Copyright office agrees it's a problem. The U.S. government has tried passing legislation easing all penalties for people who want to use orphaned work, if a good-faith attempt is made to locate the creator of the work. I think that's a great idea. However, those bills failed to pass into law.

It may be kind of weird, but if I manage to do this, I'm sort of hoping the 1-in-1 billion chance of someone coming out of the woodwork and claiming an image actually happens. It would be an epic, years long legal case with Supreme Court potential. .

If you didn't get intellectual property rights to the photos on the slides when you purchased them, I'm afraid you run a risk (even if it's a very small one). On the purest technical level, selling images you don't have the rights to just because you don't think anyone will recognize the photo taken (especially given the subject matter), is still wrong. But based on what you tell us about the photographic content, I can't imagine a likely scenario where someone would recognize it as a photograph someone else took.

The rather laughable possibility here is, in the (highly) unlikely event someone bought a stock version of one of these and used it in a very public and profitable way, you could get burned.

Like others have said, you're basically asking this because you know it's not actually legal.

If you didn't get intellectual property rights to the photos on the slides when you purchased them, I'm afraid you run a risk (even if it's a very small one). On the purest technical level, selling images you don't have the rights to just because you don't think anyone will recognize the photo taken (especially given the subject matter), is still wrong. But based on what you tell us about the photographic content, I can't imagine a likely scenario where someone would recognize it as a photograph someone else took.

 

The rather laughable possibility here is, in the (highly) unlikely event someone bought a stock version of one of these and used it in a very public and profitable way, you could get burned.

 

Like others have said, you're basically asking this because you know it's not actually legal.

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?

As I recall just a few years ago there was a question over who owned the rights to Vivian Meyers' work. I believe it was all purchased in a storage locker sale and no one knew much about it. I doubt there would have been many claims but when the work became popular and worth substantial money 'relatives' and others were coming out of the woodwork claiming they owned the rights to it. I don't know how or even if it has been settled but something like this could come back and bite you. Owning the slides or negatives or prints is one thing but owning the publishing rights is something else.

Rick H.

What you are proposing violates copyright law.

It is my view that the photos are now mine

They're not. While copyright law is occasionally vague, the photos are not yours based on any interpretation of US copyright law, and probably international law also (see Berne Convention).

From what I read, the copyright law is a bit iffy when it comes to abandonment.

This is not correct. Copyright law currently treats abandoned and parented works identically.

Furthermore, how on earth would anyone be able to recognize a landscape photo from 70 years ago?

Basically you say you are fine with violating other people's copyrights, even if they can't be located currently. There's an assumption there also that no copies of the slides were ever made.

what's to prevent me from claiming that these photos are my "father's" photos that I found in the "attic"?

Nothing, but you will characterize yourself as a liar in addition to a copyright violator.

The first is digital copies of works that were never digital as originals. There seems to be a legal debate/gray area here, and some courts have ruled that the digital copy is a separate copyright, and others have ruled it is not.

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.

I'm also asking because I don't know if it's not actually illegal.

It's not illegal, it's a copyright violation and can be prosecuted.

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

The first two questions are irrelevant. Unless you are creating something that is new, it's not original work. Simply making modifications in an editing program is unlikely to pass muster.

The problem here is that you've said you have no problem violating copyright. You've tried to make a bunch of arguments that don't hold up. Virtually all photographers would expect a high level of ethics when it comes to copyright violation. Maybe you're not a photographer but if you are, you've certainly put yourself in an interesting position.

Any stock agency is going to require that it be your own work. If you're going to take the lying and copyright violation route, you better check what the penalties are in the stock agency's contract.

"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."

Well, I never said they would lose the copyright. I was referring to derivative works with a separate copyright.

The law is less ambivalent than you.

A poster above mentioned the Vivian Maier case. If the law is so definite and decided, then why are lawyers still battling the case out in court 3 years after it was filed?

I don't believe you backed up your soapbox lecture with any concrete precedent or relevant case law that applies to this particular situation. Emotional beliefs about what is you think is "right" and "wrong" doesn't count in court. Save that for the philosophy class.

Jeff spent more time than I would explaining the ins and outs: aptly described what it is that you are proposing to do - "the lying and copyright violation route".

WW

. . . I don't believe you backed up your soapbox lecture with any concrete precedent or relevant case law that applies to this particular situation. Emotional beliefs about what is you think is "right" and "wrong" doesn't count in court. Save that for the philosophy class.

It wasn't a soap box lecture it addressed the content of the conversation. Take this as your first and only warning, personal attacks are not tolerated.

WW.

I don't believe you backed up your soapbox lecture with any concrete precedent or relevant case law that applies to this particular situation. Emotional beliefs about what is you think is "right" and "wrong" doesn't count in court

Well it is certainly true that you provided no case law for what you stated. However, I can cite the relevant copyright law if you would like. Suffice it to say that that would be a waste as you have already said you would lie about it.

"However, I can cite the relevant copyright law if you would like."

I can find the text just fine thanks. The law as written is often very different from precedent and case law. Judges interpret laws in various ways, some are more literal, and some are not. If you have any decided cases I would love to see them.

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.

I'm not sure why, but this discussion led me to look up my image of a (street) shoulder:

I think the reason the Maier debacle is still going on is that there is money to be made and everyone wants a piece of it. Or all of it if they can figure out how. A jaded point of view but I often think most of these sorts of things are simply driven by profit motive. It does lead me to a question though. If someone does find a body of work that is abandoned similar to the Maier work, is there a copyright issue? 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?

Rick H.

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.