Help w/ Copyright Dilemma

[geoffrey_swenson]

The owner of an architectural office where I work has several B&W

prints from the forties depicting our town before development. He

would like to have them copied and keep one set for his personal use

(hang them on the walls in the office) and also donate one set to the

City in question.

There is a stamp stating only the photographer�s name on the back of

the matting.

 

My question is this; The owner is attempting to find the copyright

owner and ask for permission to use the images, but most likely he

won�t succeed in locating him.

 

Could some of you tell us the implications in this case?

 

Thank you all,

 

G.S.

[leonard_evens]

Good question.

 

Unfortunately, Congress, ever sensitive to the needs of the large corporations which hold copyrights on most copyrighted materials, have extended copyright periods so they last several human generations. Once upon a time, things entered the public domain after the copyright expired, but after all we have to be fair to Disney, don't we?

 

There still is the fair use doctrine about copyrighted material. In principle, that might allow such material to be exhibited by the city as long as no one made a profit in the process, and there weren't large number of copies distributed. But you would have to check with a lawyer experienced in copyright law.

[tim_atherton2]

Not quite the answer you are looking for, but I could give you a pretty good idea for Canada, because it's something Archives quite often have to do. First there is the actual length of Copyright, the legistlation of which has changed over time for photographs, and there are various tables to work out if something is still actually in copyright. And some copyright acts set out the hoops you go through to determine who the owner or heirs of old works are, using terms like "all reasonable effort" etc.

 

I'm guessing you are in the US? I'll see if I can find if there is similar information for the US copyright act.

[geoffrey_swenson]

Tim and Leonard,

 

Yes we are in California, in a very small town and a small office (12 people). The photographs are nothing to write home about artistically, except for strictly local interest.

 

Thank again,

 

G.S.

[akajohndoe]

Let me preface this by saying that I am not an attorney, and that my experiences with legal systems have led me to the conclusion that the law has very little to do with what is logical.

 

That said, it would seem that the appropriation of property of another for any purpose without due process or consideration is theft.

 

And it is is not possible to "donate" something that is not yours.

[tim_atherton2]

If you go to the US Copyright Office you will see that determining if something is still copyright is somewhat complicated.

 

http://www.loc.gov/copyright/

http://www.copyright.gov/circs/circ1.html#hlc

http://www.copyright.gov/help/faq/faq-duration.html

http://www.copyright.gov/help/faq/faq-fairuse.html

 

But, if these images were created and either "published" (as defined by the copyright act - if you have some information about the local use of the photographs, you may be able to determine this) or registered in the 1940's, then they are now Public Domain and you would be free to use them. However, if they were never "published" (may be hard to determine) or the copyright was renewed after 28 years then they could still have copyright protection. If they were initially registered (somewhat unlikely) or renewed, then you can find the details via a search at the Copyright Office. You might want to start by conducting a search for the photogrpaher at the copyright office. You can find details on the site.

 

You might also want to hunt down a good book on US copyright "for archives and museums" - they usually examine this kind of scenario.

[geoffrey_swenson]

Dear ***** ******,

 

Thank you for response as well. Nobody wants to steal anything from anybody. These are somewhat obscure little photographs that hold no interest for most. Read on;

 

As donation goes, you can donate a 200-year-old horseshoe or an original Rembrandt if you own it. The photographs were paid for in 1947 and the current owner DOES want to find the photographer and compensate him if he wishes so. However, I don�t think he (the photographer) can be found, consequently we have the dilemma I referred to earlier.

Furthermore, the owner wants to donate the originals and have copies made for his personal use only.

 

If by any chance you are the photographer, please give us a call!

 

Faithfully yours,

 

G.S.

[ellis_vener_photography]

<I>Unfortunately, Congress, ever sensitive to the needs of the large corporations

which hold copyrights on most copyrighted materials, have extended copyright

periods so they last several human generations. Once upon a time, things entered

the public domain after the copyright expired, but after all we have to be fair to

Disney, don't we? </I><P>A good answer but not completely accurate. If the

copyright has not been renewed, and the work has gone into public domain, then it

cannot be re-applied. <P>I would check with your local library who may have old

phone books, or other ways to track down his or her heirs to see if they care. I would

definitely make sure the photographer's name is prominently credited in the new

copies.<P>As someone who owns the copyrights on almost all of the

work I have created over the years, and whose business is a very small sole

proprietorship, I think that the copyright extension is a good thing. The work I do is

my legacy: I'm not interested in frittering it away. As Arnold Newman, the great

portrait photographer, likes to say, "I'm an 83 year old photographer supported by

the work of a 25 year old photographer named Arnold Newman." We have to be fair to

others like me as well as to the corporate behemoths

[james_driscoll2]

I think everyone is making to big of a deal out of this issue.

 

A: The photographer is most likely deceased.

 

B: No one is "publishing" and/or profiting from the photos.

 

C: At most, IF the photographer found out, all he probably do is

send the town a "cease and desist" letter, and the photos would

have to come down.

 

D: If someone can publish a book of yard sale Kodachromes, I

think you can make a copy set of photos to be hung in the town.

 

E: If i was the photographer (and probably you too) I would not

object to the usage of the photos (as stated of course) with due

credit and a approx. date. Once again, no one is profiting from

the photographs, and if anything the photographer has all to

gain.

[john_cook1]

Geoffrey, It is my understanding that this "automatic copyright" business is a modern phenomenon which was just enacted into law in the 80's. Before that, if you wanted to copyright something, you had to apply to Washington for one. If something wasn't clearly marked as copyrighted, it wasn't. Too much trouble to go through for every little piece of film you shot every day.

 

It's surely certain that this guy is long dead, his decendents now live back east and never heard of him, his studio is long gone his negatives are all somewhere in the city dump and his routine bread-and-butter work was never copyrighted.

 

Put it this way, how many of us applied for a copyright on the essays we wrote in English class in elementary school in the 50's? Or on our deckle-edged summer vacation snaps? It just wasn't done!

[akajohndoe]

Nope. Not the original photographer.

 

However, since these were purchased, the owner can of course donate them. Also, as stated, the lack of profit and personal use is a contributing factor.

 

For example, I can take photos of people I see on the street and frame them and hang them on my wall without model releases. I cannot sell them for commercial use or profit, though.

[tim_atherton2]

My understanding is that if these images were "published" in 1947 (as appears to likely be the case if they were bought and paid for then) they received copyright protection for 28 years at that point. They would also likely not have been protected by the the automatic increase in copyright protection in 1978. If copyright was not renewed for whatever period was allowed at the time of reneweal (of which there would be a record at the Copyright office), then they would now be Public Doamin.

 

warning - I don't even play a copyright lawyer on TV...

[louie_powell1]

I also do not play a lawyer on TV, but I have read portions of the Copyright law -

 

I think there are two possibilities. One is that the images were copyrighted by the photographer at the time of creation in the 1940's. In those days, that meant submitting copies along with an application to the Copyright Office. If so, the term of that copyright was 28 years, and under the present law, could be extended for another 67 years by application to the Copyright Office. If no application for renewal was submitted, then the images are now public domain.

 

The other possibility - one that is more probable - is that the photographer did not overtly copyright the images. That's stickier, because the current law then states that there is a default copyright that is owned by the photographer or his estate for the life of the photographer plus 70 years (or until pigs start flying).

 

Then there is the possibility that the photographer made the images under contract to someone (the city, your architectural firm?), and that third party may also have a claim.

 

So the best solution is to try to find the photographer (or his grandchildren) and request permission to copy the images. Otherwise, making the copies - even as a donation to the city - is a violation of the copyright law.

 

Since the plan would be to donate the copies to the city, why not take advantage of the fact that the city almost certainly has a lawyer? If nothing else, that lawyer could offer an opinion about whether the city should accept the donation if the copyright issue is in question.

[tim_curry]

At the large format seminar last year there was a session by a lawyer versed in this type of copyright law. His basic take on any copyright issue was simple. If you took the picture, you already own the copyright. However, if you don't apply for a copyright at the time of "publication" and there is some infringement later, the courts will not uphold the photographer's rights because the paperwork for copyright is the actual protection, not the picture or intellectual property. The property holder must show damage to his ability to sell the image and subsequent loss of income due to infringement.

 

Shades of gray.

[h._p.]

The one thing that hasn't been mentioned is the question of who actually owns the copyright. In the UK, certainly, the person commissioning a work is the copyright holder. If the architects (or their predeccesors) asked for the photos to be taken, then they would actually own the copyright.

 

Note, again in the UK, this has messed about with in the latest copyright act.

[geoffrey_swenson]

Most interesting points of somewhat differing views! Thank you all, but I think James Driscoll put in the best argument in this case.

 

Copyright is very important to honor, of course w/in practical limits.

 

Cheers, G.S.

[allen_whittier]

The Museum I work with is running into this. There are many variables in the equation. I'm afraid it may take a lawyer to work them out. Since you're being the good guy and making the photos accessible to the public the legal stuff will probably be free. I agree with Louie's assessment. Sometimes the easiest way to solve the problem is to find the photographers descendants and get permission. The life plus 70 years is a real thing if it applies to you. Your State Historical Society will also be a good place to get help with a lot of your questions. They will want a set of photos for their trouble. Getting your question answered may be a simple matter in the end.

 

On the matter of using them for profit, keep in mind that the city may decide to sell the images. (Post cards, calendars, history books,......)

 

Some US law is different from UK law on the point of work for hire. I've heard of the UK standard before. Here in Oregon ownership of a copyright doesn't automatically move to the person contracting the work unless it's spelled out in the contract. I learned this when a customer was bought out by a larger company. The sale included the direct sale of a great deal of intellectual material that was being sold for another party to make full use of. I owned all the copyrights on the work that I did for hire because there was no "release of copyright" or the "right to sell to a second user" clause in our contract. The original company had full use of the material to use in there business, but the right to use it couldn't be sold to a third party. Once the company ceased to exist the right to use the material ended with it. It was actually a bit more complicated than this; I just didn't want you thinking transfer of copyright was automatic.

 

The most important thing is to do the work and get the photos out of the private collection and into the public sector. I've done a lot of historic research. And I'm always grateful to the person who took the effort to get the photos into a place where I and others can find them. As time goes your contribution will gain greater and greater importance. An image is worth a thousand words especially when interpreting our past. It tells a different story to every person who picks it up and looks at it.

[joe_photo]

This may be off topic but kind of funny. This SX-70 photo sold on ooBay recently for $102.50. Now because someone bought the photo that wouldn't give them the right to publish it, would it? (Oops, I just did)

 

http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=3231643264&category=48&rd=1

[michael_a._smith1]

Since you (or your company) are making the copies for your own

use and not for sale, and since, as has been mentioned, the

photographer is probably long gone, I would do the practical

thing and give a quick search for him in your town. If you cannot

locate him, go ahead and do what you plan to do. If you find

him/her or heirs, I am sure they will be flattered by the request

and ask for nothing.

 

As far as donating work goes. You own it, you can donate it.

Copyright has nothing to do with it.

 

Michael A. Smith

[sjixxxy]

I was going to post something similar, but this thread is essentially the same, I'll just include it here.

 

I'm just wondieng how the same applied if one aqcuires the negative from the said photos. I picked up a few old 4x5 sheets from the 1940's from an antique store that I'm going to print to add to my own personal collection. If someone where to come along and see the images, and want a copy, either by gift or by selling, how would copyright come into play then? I think if the negatives ended up for sale in a store, I'd guess that the most likely case is that the photographer is dead, and/or himself/his family gave away or sold the negatives not giving concern about the copyright anymore. Would this mean that I would be free to do as I please with the negatives?

[struan_gray]

Geoffrey, as far as I can see you are trying to do the right thing. If

you've made a serious, documented effort to track down the

photographer or his/her heirs, that is as much as reasonable

courts expect you to do. Of course, you might end up with an

unreasonable court, or a litigant who just won't let it go, but that's

true of most things in life.

 

Copyright is a seperate right from ownership. You can own a

book, donate it, burn it, or read it aloud to your kids at night, but

you can't copy it, post the pages on a public wall for others to see

or read it aloud on the radio. Photographs are the same: you

own the piece of paper, the copyright holder owns the copyright.

 

The U.K. is odd in that it is easier to accidentally do work for hire.

If someone supplies the camera, film and processing to you,

they can in some circumstances end up owning the copyright

even if there is no formal transfer. In the U.S.A. the person who

pushes the button has the copyright unless they sign an explicit

contract saying otherwise. That's why assistants should always

be on a contract :-)

 

Ellis: copyrights can go in and out of the public domain. The

recent extension to 70 years for personal work was applied

retrospectively and left a gap where materials could have been

re-published in good faith assuming they were public domain,

and suddenly they were not any more. Several of the 'classics at

low prices' book publishers got hit by this. They didn't have to

pay any fine, but they did have to pulp remaining copies - or

negotiate a fee.

 

Geoffrey, one advantage of yours being a small town is that

someone will probably remember the photographer or his

studio, and what happened to him. Perhaps a local paper would

help you track down any info?

 

I'm not a lawyer, etc, etc. Good luck, and good kharma for trying

to get this right.

[dk_thompson]

Let me offer up a different perspective on this--I'm in a work-for-hire agreement with my employer--I'm a state employee. I work for the Dept. that oversees all the state historic sites, history museums, archives & records, state library, geneology search room, archaeology, historic preservation etc. There are maybe a half dozen folks like me, and about 3-4 times as many working on microfilm reformatting projects. This is like the type of work where you shoot a newspaper or periodical onto microfilm for preservation purposes. Gov't records are often handled the same way, every state has an archives that handles this type of work & often works in liason with smaller local gov'ts. In all there are about a little more than 2000 employees in the dept. There are archivists, regsitrars, preservation managers etc.--these types of professions handle the legal paperwork involved with collections, including copyright and transfers of ownership.

 

In my job, everything I shoot belongs to my employer....I guess ultimately it's all public domain in the long run, since the state owns it, but we use copyright on our own materials as well--and have stopped people from using images in the past, but not to the degree that someone in the private sector could. Mostly it's been people copying photographs of objects--say flags--and making reproductions of them for sale. Mostly we just get them to stop doing it--I can't think of any monetary fine that ever came of this. Our images have been used everywhere from Time-Life books, magazines and even exhibits overseas (I had a shot in some exhibit in England once--something about the history of cannabis in medicine, believe it or not...)

 

Anyways, it's not uncommon to see discalimers in archives or libraries stating that they may not hold the copyrights for all the materials in their collections--they leave it up to the patron to secure rights for any type of commercial use because alot of material is copied under fair-use agreements. Meaning you can look at it & use it for research and that's about it. Use it for educational purposes. Public institutions are mostly non-profit and run by local, state or county gov'ts. They may be attached to Universities or colleges, or to state records centers. In our case, we don't charge usage fees, we don't generate a profit, we don't charge admission to the exhibits or the building. The historic sites are mostly free, with few exceptions. The search rooms are open to the public after a training session & security clearance etc. We're here to serve the public basically, not generate income. The missions are to preserve, interpet and promote the history of the state--and yes, alot of photos are copied, but this is the primary way they are preserved in archives all across the country. They are copied and then stored safely away. In fact, it's also not uncommon to find one place copying another insitutions photos and vice-versa. The stuff gets circulated around and over the decades winds up in different collections all over the place. It's like this all the way up through the Federal insitutions as well. All the way through private stock archives that sell public domain photos you could get for free from the Library of Congress even.

 

My advice would be to contact the archive, historical society or maybe public library--whoever it is in your city that you think is interested in them. Find out what they want and go from there. Often times I make sets of prints for patrons off the photos that we've either been loaned or accessioned. When an item is accessioned--it is transfered permanently into the collection--the care of the state. This is done by a review board appointed by the governor--the Historical Society. If an item is here & then returned--it becomes a "receipted artifact". There's a paper trail for all this, and private item histories kept secure as well. Sometimes photos and letters, text etc will come in for "provenance" and be copied and then returned to the donors. Even the most mundane, technically lousy images can take on a new life in this context. You don't have a time machine, you can't go back for a reshoot--so don't discount what you have. Often times that's all there is--historians are interested in all sorts of details that others will just gloss over and not see. So, my advice would be to contact them first--let them handle the legal aspects, maybe they'll want the originals for a collection, or maybe they'll even handle the technical end of it, or give you tips on storing them.

 

These are my opinions only & not those of my employers. Any email to me or from me will probably be viewed by third parties and could be archived as a public record. I'm not advocating violation of copyright laws--just giving you another perspective. Good luck, hope this helps--if you want more info, the professional organizations of the AASLH (American Assoc of State and Local History), the SAA (Society of American Archivists) or the AAM (American Assoc of Museums) may have some FAQs and leaflets for the public. I know the AASLH and SAA do. Hope this helps.

[robert_lawrence]

Harvey,

 

To clarify the UK situation. Since the 1988 Copyright, Designs and Patents Act the copyright explicitly belongs to the photographer unless assigned in writing to another party - irrespective of who commissioned and who paid for it - and the copyright is valid for 70 years after decease. The exception to this is an employed photographer, in which case his/her employer owns the copyright.

 

Robert Lawrence,

Member of the Association of Photographers (UK)

[wayne_crider4]

I think Mr. Smith has it right and it's exactly what I would do. The chances of

someone coming along and asking if you paid for the print, or a copy of the

print, like they were the photo police, is remote. If the 1 chance in a million

happens pull a Sargent Schultz. I would check around tho first just for the

heck of it.

[dk_thompson]

arrghh, let me make a slight correction to that--it's the Historical Commission...