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Thing versus copyright

It’s a persistent question that has reader Sherri perplexed in trying to understand her rights to a photograph of her grandparents: the question of the difference between owning a particular thing and owning the copyright to that thing.

3d little human taking a photoShe explains the problem in her question:

In July 1992, with permission, I took a photo of an original, one of a kind, picture of my grandparents that was in the possession of my mother. I then did some restoration work, and gave copies to my aunt and uncle and my brother. I still have the copy negative. My mother is now deceased. Yesterday I discovered my photo on Find-A-Grave. I wrote to the poster asking for his source for the photo. He replied that he didn’t remember. I then politely asked him to remove the photo from Find-A-Grave and anywhere else he’s posted it. Today I learned that other family members have had unsuccessful dealings with this individual.Do I have any recourse or does this individual have me over a barrel?

The problem here, of course, is the problem of who owns the rights to that photograph.

And that’s a different question than who owns the photograph itself.

Many different people can legally own a copy of a thing — The Legal Genealogist and all of the readers of this blog could all own a copy of a book or a calendar or a painting or a photograph, for example, and we’d all be perfectly legal in our ownership of that item.

But owning a copy of that thing wouldn’t give any of us ownership of the copyright in that thing. Owning a specific physical item — the photograph in this case — is entirely separate and apart from owning any copyright there may be in the item. The U.S. Copyright Office explains that:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.1

And, as the Copyright Office continues, it can often be a real headache to figure out who does own the rights when it comes to a photograph:

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.2

So we have to work through the rights here.

First and foremost, who took the original photograph — the “original, one of a kind, picture of (Sherri’s) grandparents that was in the possession of (her) mother”? As the Copyright Office notes, the owner of the copyright is usually the photographer — or the photographer’s heirs if the photographer is deceased.

And it’s the original photographer that matters: the fact that Sherri was the one who made a copy of the original isn’t enough to give her a copyright in her copy. To qualify for copyright protection, the work has to be independently created by the author or artist and not copied from other works.3

Second, when was the original image created? Copyright lasts for a long time, but not forever. In general, in the United States, under current law, copyright lasts for the lifetime of the creator — the photographer — plus 70 years.4 So if that original image was created by someone who died before 1945, nobody owns the copyright any more — the image would be in the public domain. And anything in the public domain is fair game for anyone to use any way that he or she wants.5

If the work is still copyrighted, then the copyright owner — the photographer or the photographer’s heirs — would have the right to insist that Find-A-Grave remove that image from its site. The right to decide when and how and by whom a copy is made is one of the key exclusive rights granted to the copyright owner.6

If the work isn’t still copyrighted, then it’s in the public domain — and anyone who owns a copy of the photo is allowed to use it.


SOURCES

  1. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 19 Aug 2015).
  2. U.S. Copyright Office, “FAQs: Can I Use Someone Else’s Work? Can Someone Else Use Mine?” (http://www.copyright.gov : accessed 19 Aug 2015).
  3. See generally Judy G. Russell, “Copyright and microfilm,” The Legal Genealogist, posted 14 July 2014 (http://www.legalgenealogist.com/blog : accessed 19 Aug 2015). And see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345-346 (1991).
  4. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at 4 (“A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death.”)
  5. U.S. Copyright Office, “FAQs: Definitions: Where is the public domain?” (http://www.copyright.gov : accessed 19 Aug 2015).
  6. See 17 U.S.C. §106.
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