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Next in an occasional series on copyright — buying “all rights”

Earlier this week, reader Jes Lindsey asked a great question about a photo of a family member in a comment to an earlier post, and it’s such a great question — one others may have as well — that The Legal Genealogist is “promoting” it here to its own blog post.

photosoldHere’s the question:

I have a picture of my Great-Grandmother taken in 1890 that was given to me as a child by my Great-Grandfather (This is an original and only copy of this picture). The picture has the name of the photo studio that took the picture in 1890, but, I have the original sales receipt for the picture. It states that the picture belongs to my Great-Grandfather with all rights at point of purchase, and is marked paid in full. Therefore, who has a right to said picture, the photographer or the purchaser? The sales receipt makes it clear that when the picture was paid for all rights were given to my Great-Grandfather that is why I am confused. I do photo restorations and would like to use my Great-Grandmother picture on my company’s website, but only if I have the rights as the owner.1

Now, as usual, what follows isn’t legal advice, I’m not practicing law here, yadda yadda yadda.2 With that caveat…

The first part of this question is: when Great Grandpa bought that photo, did he buy the copyright as well?

Answer: yes, based on the facts given, I sure think so. A copyright is a form of property, and it can be bought and sold just like any other form of property. The U.S. Copyright Office couldn’t be clearer about that: “Like any other property, all or part of the rights in a work may be transferred by the owner to another.”3

There are some formalities required for the transfer to be effective: “Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”4

Here, Jes says, the receipt for the photograph — a document in writing — says “all rights” were transferred, and it’s a receipt from the studio that created the original. All rights in this very specific context can hardly mean anything other than just what it says — all rights. So it sure looks like Jes’ Great Grandpa owned the copyright.

The next question, then, is just what that meant: what exactly did Great Grandpa buy?

And the answer is, only what the photographer and studio had. Under the law as it’s changed time and again in the years since 1890, the maximum term of a copyright for an unpublished photograph like this one has come to be the lifetime of the creator plus 70 years.5 No matter what the law was before 1978, as of 1 January 1978, the federal copyright act governs all copyrights and sets one uniform time period for each category.6

Note that it’s not Great Grandpa’s life plus 70 years — it’s the creator’s life plus 70 years. The term of copyright isn’t extended when you sell or transfer it to the next person down the line. If that happened, copyright would never end, and the whole theory of copyright is “promote the … useful arts, by securing for limited times to authors … the exclusive right to their … writings…”7

So what exactly does Jes have today in terms of those rights? Can Jes safely use that photo to promote the photo restoration business?

You already know what’s coming, don’t you? The lovely wonderful lawyerly answer of which The Legal Genealogist is so fond?

It depends.

First and foremost, the question is whether anybody has a copyright interest in that photograph any more. That’s answered by finding out — if it’s possible to find out — when the photographer died.

If the photographer died more than 70 years ago, the photo isn’t copyright protected any more and Jes is perfectly free to use the photo in any way — for personal or commercial purposes.

If the photographer died within the last 70 years, then somebody still has a copyright interest. The question then becomes who. And that’s not answered just by the fact that Great Grandpa gave Jes the photo, or even by the fact that Great Grandpa gave Jes the photo and the receipt.

Remember, under the law, a transfer of rights has to be in writing, signed by the owner of the rights. Great Grandpa would have had to sign something giving the copyright to Jes — just giving up the photo or even the photo and the receipt doesn’t give up the copyright.

If Great Grandpa did sign the photograph (edited:) and copyright over to Jes in a written document, Jes is home free, because Jes would own everything Great Grandpa owned and nobody else anywhere would have any claim to it.

But if there is still a copyright in effect and Great Grandpa only handed over the photo without signing over the copyright, Jes needs to figure out exactly who owns the copyright today. And that’s a matter of the law of the state where Great Grandpa died, and what Great Grandpa did in terms of leaving a will, and maybe even how many other folks descend from Great Grandpa.

See, as the Copyright Office says, “A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property …”8

A checklist of questions to ask:

• Did Great Grandpa leave a will? And if so, then in this order:

• Did he mention the copyright specifically?

• Did he mention this photograph specifically?

• Did he mention photographs generally?

• Did he mention personal property generally?

• Did the will have a residuary clause (“and all the rest and residue of my estate I leave to…”)?

• If Great Grandpa didn’t leave a will, then:

• What state’s law controls how his personal property would be distributed to his descendants?

• What does that state’s law say about who’s entitled to inherit personal property?

• Who was alive when Great Grandpa died who would have been included in that group?

• Who is alive today who might have a claim to any part of Great Grandpa’s personal property?

And, of course, once those people or descendants who own the rights are identified, getting them all to sign off on the use of the photo is all Jes needs.

Hmmm… chasing down descendants. Sounds like a job for a genealogist to me…


Image: Brady’s National Photographic Galleries, Unidentified woman, possibly a nurse, during the Civil War, Library of Congress, Prints & Photographs Division, Washington, D.C.

  1. Jes Lindsey, comment posted 5 Nov 2013 to “Copyright and the old family photo,” The Legal Genealogist, posted 6 Mar 2012 ( : accessed 7 Nov 2013).
  2. See Judy G. Russell, “Reprise: Rules of my road,” The Legal Genealogist, posted 26 Apr 2013 ( : accessed 5 Nov 2013).
  3. “Assignment/Transfer of Copyright Ownership,” Frequently Asked Questions, U.S. Copyright Office ( : accessed 7 Nov 2013).
  4. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 6 ( : accessed 7 Nov 2013).
  5. For a great chart showing the time periods of copyrights covering items created over time, see Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Information Center ( : accessed 7 Nov 2013).
  6. See 17 U.S.C. §301(a) (“On and after January 1, 1978, all … rights within the general scope of copyright … are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State”).
  7. U.S. Constitution, Article I, section 8, clause 8 (emphasis added).
  8. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 6 ( : accessed 7 Nov 2013).
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