Copyright and the old family photo

First in an occasional series on copyright — the old family photo

Opal Robertson c1900

The photograph you see to the left here is of my grandmother, Opal (Robertson) Cottrell. Isn’t she adorable? Offhand, I’d say she might be all of two years old in this image, so it was probably taken around 1900.1

It was probably taken in Granger, Williamson County, Texas. That’s one of the two studio locations for the photographer, and that’s where her grandmother Martha Louise (Shew) Livingston was living in 1900.2 Martha and her last husband, Abigah Livingston,3 had their own photo taken at the same studio, most likely at the same time.4

Let’s see here… 2012 minus 1900… that photo was taken 112 years ago. I own this copy of the photo. The person depicted in it is my grandmother. Nothing to worry about in using this photo, is there?

After all, most people will tell you that any photograph or other work created before 1923 is now in the public domain, meaning that there aren’t any copyright restrictions and anybody can make use of it.5

Great! My grandmother’s picture was certainly created before 1923, so it’s public domain and I can do whatever I want, no?

No. As a matter of fact, were it not for the concept of fair use,6 I’d be violating the copyright of the photographer who took this picture by using it here in this blog.

Pretty mind-boggling, isn’t it? I own this copy of the photo, it’s a picture of my own grandmother, and yet the law severely limits what I’m allowed to do with it.

That’s because — drum roll, please — ownership of the photo is not the same thing as ownership of the copyright.

Under the law, if an item is protected by copyright, then only the copyright owner gets to say who can and can’t copy it or use it. And the mere fact that the copyright owner sells or gives away copies of the item doesn’t mean the copyright goes with it.

If I take a photograph, I can sell you a copy and keep the copyright. You can display the photo in your home or your office, but the only one who can make more copies or publish it or use it in a whole bunch of other ways is me. I can print hundreds of copies and sell them all, and none of the buyers has any right to re-copy or re-publish the work. I could even sell you one copy for your home, sell the right to make copies for public sale to your cousin, and sell the right to hang the photo in public to your cousin’s husband’s buddy.

What that means for this picture of my grandmother is that even though the photographer sold the photo to someone in my family (I’m betting it was Martha Louise who paid for it — my grandmother was her first grandchild), and even though the picture was passed down through my family and a copy ultimately came to me, the only way I can use the picture any way I want is if the copyright on that photo has expired.

How do I know that it hasn’t?

Here’s the story:

Because of a number of amendments and changes in copyright law, what is and isn’t covered by copyright depends on two things: (1) when the item was created; and (2) whether it was published. Here’s a general outline of the key dates under the law:

Created 1-1-1978 or after When work is fixed in tangible medium of expression Life + 70 years1 (or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation2
Published before 1923 In public domain None
Published from 1923 – 1963 When published with notice3 28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
Published from 1964 – 1977 When published with notice 28 years for first term; now automatic extension of 67 years for second term
Created before 1-1-1978 but not published 1-1-1978, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2002, whichever is greater
Created before 1-1-1978 but published between then and 12-31-2002 1-1-1978, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2047 whichever is greater

Chart courtesy Prof. Laura Gasaway, UNC Law
Check for updates here

1 Term of joint works is measured by life of the longest-lived author.
2 Works for hire, anonymous and pseudonymous works also have this term. 17 U.S.C. § 302(c).
3 Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-1978 and 3-1-1989, effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. 17 U.S.C. § 405.

So… why isn’t this 1900 photo in the public domain? Because it had to have been created and published before 1923. And there’s not one bit of evidence it was ever published as that word is used in the law:

“Publication” is the distribution of copies … of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.7

And when it comes to photographs, making a single print for the person photographed does not constitute publication. Even if the photographer hangs it up in his window as a display piece to entice others to come into his studio, it won’t help:

A public … display of a work does not of itself constitute publication.8

Under current U.S. law, for any unpublished work created before 1 January 1978, the copyright lasts for the lifetime of the creator plus 70 years. Hmmm… That photo was taken 112 years ago, and the photographer had to be an adult when it was taken, so time is running fast, no? No. Frank J. Schlueter, principal of the studio where the photo was taken, was born in Germany in March 1874. And he died in Texas on 7 December 1972.9 I have 30 years to go before I can use that photo in any way and for any purpose I want.

But I mean, really. Nobody is alive today who could possible chase me for using this copy, no? No again. “Ownership of a copyright … may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.”10 Whoever has the rights to his estate has this copyright too.

But wait a minute. There are other photos from this studio out there on the web, some even on Flickr from respected institutions like Southern Methodist University. Nobody’s chasing them, right? And there are all kinds of photos online at the Library of Congress! Yeah. That’s true. And you should really take the time to read what the Library of Congress says about the photos it owns and puts in its digital collections. You’ll find its overview here. And the bottom line there is that “The Library is unaware of any lawsuits involving the use of its historical images.”

Just my luck, the case against me would be the first one…

Sigh… I’d better still be alive and kicking in 2042…


  1. Opal E. (Robertson) Cottrell was born 21 Aug 1898 in Eagle Lake, Colorado County, Texas. See Virginia Department of Health, Certificate of Death, state file no. 95-011808, Opal Robertson Cottrell (1995); Division of Vital Records, Richmond.
  2. 1900 U.S. census, Williamson County, Texas, Justice Precinct 2, population schedule, enumeration district (ED) 125, p. 117(B) (stamped), sheet 9(B), dwelling 143, family 154, Martha Levingston; digital image, ( : accessed 5 Mar 2012 2012); citing National Archive microfilm publication T623, roll 1679.
  3. I have to say “last husband” because she had a child — my great grandmother, Opal’s mother, Eula — by an earlier relationship. See 1870 U.S. census, Cherokee County, Alabama, Leesburg P.O., population schedule, p. 268A (stamped), dwelling/family 15, Martha and Eula Baird; digital image, ( : accessed 5 Mar 2012); citing National Archive microfilm publication M593, roll 7; imaged from FHL microfilm 545506. We’re still trying to figure out if Daddy was a husband or not…
  4. Abigah and Martha Louise (Shew) Livingston photograph, c. 1900; digital image, c. 2004, privately held by Judy G. Russell, New Jersey. The original is held by a great grandson of Abigah and Martha Louise in Texas.
  5. As explained by the United States Copyright Office, “A work of authorship is in the `public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.” See U.S. Copyright Office, “Definitions” ( : accessed 5 Mar 2012).
  6. Ibid., “Fair Use” ( : accessed 5 Mar 2012). I’ll get to fair use in a future post.
  7. 17 U.S.C. § 101.
  8. Ibid.
  9. Texas Department of Health, Certificate of Death, state file no. 92069, Frank J. Schlueter (1972); Bureau of Vital Statistics, Austin.
  10. 17 U.S.C. § 202(d)(1).
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208 Responses to Copyright and the old family photo

  1. Very helpful post! Thanks! Just go to show photographs copyright can be complicated too.

  2. Marjorie says:

    Thank you (I think) for the clarification between creation and publication. It’s all so complicated – no wonder we all just play ostrich and hope for the best!

    • Judy G. Russell says:

      Hoping for the best isn’t quite what I’d recommend… but stay tuned for future posts on fair use and other concepts that may help.

  3. Celia Lewis says:

    Oh dear, Judy – my mind boggles with all this… I have a gorgeous tintype of my grandparents taken in 1899 from a photographer’s studio in Barrow in Furness, England. Studio now defunct, grandparents died and this photo given to me by grandfather (before, of course). Oh my… who knows when the photographer died etc. and what happened to his photos. By the way – love Opal’s photo – simply delightful.

    • Barbara Schenck says:

      You and I should talk. I have relatives who had photos taken in Barrow in Furness, too, at more or less the same time. And I bought an album on ebay of those photos. Who knows — we might have connections!

    • Judy G. Russell says:

      Celia, for works like yours created in a different country, the rules are pretty close to the same, but I’d look at the bigger more comprehensive chart at Cornell. The link is here.

  4. Judy – Thank you! I’ve wondered about this, but unfortunately have not been able to find a good, clear explanation until now! Can you tell me, does this also apply to studio photographs that do not have a photographer’s stamp? Thanks again!

    • Judy G. Russell says:

      Cynthia, this same date-and-published-or-not schedule applies to anything that can be copyrighted, so yes, it applies to any photograph whether it has the stamp or not.

      • I imagine this scenario would be a lot harder to enforce if you can’t identify who the copyright holder is.

        • Judy G. Russell says:

          Yup. And that’s among the points made in the Library of Congress guide referenced towards the end of the post.

      • So who owns the copyright now that the original owner is DECEASED ? Doesn’t the copyright end along w/the owner’s death ?

        • Judy G. Russell says:

          No, copyright doesn’t end with death; it lasts (today) for 70 years after the author’s death. The copyright can be willed to an heir just as any other property can be, and if not included in a will (or the person didn’t leave a will) passes by intestacy.

  5. A couple of questions for you.

    Let’s say a photo is in public domain. You have what is known to be the only copy of a photo of your great grandfather. No one else has a physical copy. Is there any way to restrict usage of the image (other than not publishing it or sharing on the internet) by anyone else? Or is it fair game once made public?

    And other twist on the same thing. A digital version of a photo is shared on eBay. The owner is selling it. The image is in public domain. Does that therefore mean that the owner can place no restrictions and anyone who sees the photo on eBay can use the photo (in say, a blog post)?

    I would imagine secondly, that there are some restrictions if trying to use a digital image for commercial purposes. Say for instance, someone grabs the digital copy of a public domain image from a seller on eBay. Then he reproduces it and tries to sell copies. Is that breaking the law or anything else?

    Thanks in advance! Copyright is a very complicated thing!


    • Judy G. Russell says:

      Marian, both of those questions are already in the queue for answers in this “occasional series on copyright.” I’ll give you a heads-up when the answers are posted.

    • Anne says:

      Try this: Don’t think of it as a photo. Think of it as text. Let’s say you had a physical copy of “Hamlet”, and tried to claim copyright or use it as if you did have the copyright (putting your name on the byline, for example), that would be wrong– illegal and unethical. A photo is no different. If something is already in the public domain, you cannot take it back and claim it as yours.

      • Judy G. Russell says:

        True — but that wasn’t the question, really. If I own the only copy of a painting, even if it was painted in the 16th century, I absolutely do have the right to restrict anyone else from even seeing it. Those are terms of use issues, not copyright issues, so contract law and not copyright law.

  6. Kyla Cromer says:

    Thanks, this is great. (Except for being bad news for most of us!) Since it’s so complicated, though, I wonder if you’d edit the chart to indicate four digit years? Thanks!

  7. Anne Tanner says:

    I just read through the whole Library of Congress site on this subject and I’m amused by the last couple of paragraphs, which say that if you have trouble proving ownership and publication of a particular photograph, anyone who might decide to sue you for using that photograph will have equal trouble proving it. I guess the copyright law is like the tax laws–deliberately set up to confuse. At any rate, that’s my great-great-grandfather right here in this portrait and I AM going to use it in my family history!

    • Judy G. Russell says:

      And that use might well qualify as a fair use (more on that on another day) depending… My concern is particularly with photos where the photographer had a commercial operation. Those records may very well exist and then there’s a very real risk.

  8. Thank you, Thank you… I have been after supposedly cousins on who have taken my pictures and put them in their trees. My mother took the pictures and they came to me & my brother by inheritance. My web page where these photos are have a note on it saying they are mine and to copy is illegal. You have given me more information on how to handle this, I hope.

    Thanks for writing about these issues.
    Nettie of Nettie’s Genbits

    • Judy G. Russell says:

      I gather from your comment that you host those pictures on your own website, in which case yes, you’re right, they are violating your copyright (inherited from your mother) unless a fair use exception applies (and it might). If you were the one who put them on Ancestry, the limited license given Ancestry to use images might lead to a different conclusion.

      If this bothers you enough that you want to follow up, you can contact Ancestry and inform them of the violation. But always consider whether it’s worth it in the long run. Those supposed cousins — or others like them on Ancestry — might have something to offer in return… Perhaps you might use this info to ensure there’s credit given to your website rather than to get the photos taken down.

    • TC says:

      Annette – I know of people who have been contacted by Ancestry for copyright infringement by ‘taking others photos’ – they will contact the owner of that tree, and ‘ask’ them to remove it or they will delete them, and possibly the owner (one that I know of so far, but I don’t know the particulars on that, I suspect the ‘owner’ got testy with Ancestry on the request) – and anything on YOUR website (barring the other information that Judy gave us) is yours. Personally? I would watermark ANYTHING I put up. Sure, those knowledgeable can remove it, but at least you have a way to prove for most that they took it.

      • JWG says:

        TC, the copyright owner does not have to “get testy” with Ancestry. It is simply a matter of following the procedure detailed on Ancestry’s Legal page. I’m one of those copyright owners who follows the procedure to have unauthorized copies of my original photos removed from the trees – but more importantly, from Ancestry’s server which only Ancestry personnel can do. Tree owners merely remove a display or hotlink.

        As far as whether or not it is worth doing (enforcing my copyrights) because I might get something in return. Nearly three years after filing my first claim to Ancestry, getting something in return has yet to happen. Honest. “Sharing” has become a one-way street in some corners of the genealogical community.

        • Judy G. Russell says:

          Remember of course: this only applies to photos that are still protected by copyright and where you own the copyright. Hard to enforce something you don’t own the right to!

        • TS says:

          I know this is an old thread, but I am new to expanding my genealogical research to ancestry and the like and I have been floored by a lot of these issues. I have thousands of photographs that have come to me from my grandmother and great-grandmothers, but I would never think of them as “mine”. Many only have single copies only because printing them was so expensive at the time. I have shared copies of many, many family documents and photos over the years and never, ever thought that was anything other than the right thing to do. Maybe less “sharing” is happening because people display these attitudes that they own their ancestors and no one else can. Inheriting the only or one of the few surviving images of an ancestor, most likely by luck (I have seen few wills that say “the 8×10 of Aunt Minerva goes to…”), and claiming ownership of the image over other relatives? What may technically be ownership and what is the right thing to do for history are two different things. And why would anyone share if this is what they see? And everyone squirreling away what they have leads to a great loss to everyone. What if someone has other images of the same individuals, but not the names to go with them and a wider dissemination of the images would lead to them potentially being identified? Just really, really unfortunate and I have been really shocked and disappointed by it and I just feel the need to try to show a different perspective.

          • Judy G. Russell says:

            I agree that sharing especially of the oldest most precious family photos is what we hope all families do! I’m so grateful to my own cousins who’ve shared with me.

  9. Paula Williams says:

    This is all a ploy to get me to take down my Flickr site and any potential unflattering photos of you, isn’t it? Tough noogies, it stays!!!

    • Judy G. Russell says:

      (a) You’re a member of my family. By definition, that makes you judgment-proof, so why worry?

      (b) There aren’t any photos of me taken after the age of 18 months that aren’t unflattering.

      • Brad Bunnin says:

        And now, with your comment about financial capability, you’ve trod upon the slippery slope of . . . defamation! As a retired publishing lawyer, I must caution you about that pitfall. (I admire a well-mixed metaphor.)

        • Judy G. Russell says:

          I rarely worry about defamation when I’m bantering with close kin. After all, truth is an absolute defense, y’know…

      • Mike Daymon says:

        I think I missed a beat– why does Paula Williams being a member of your family make her “judgement-proof”? Is there some special rules for using photos of family members?


        • Judy G. Russell says:

          (a) Don’t take anything I ever say about my family all that seriously. I don’t — and I sure hope they don’t!
          (b) Paula, like me, is a committed genealogist, which means we spend everything we have on research, leaving nothing left over for creditors to try to swoop down and take!
          (c) Other and (a) and (b), there’s no special legal insulation for family members. If your wealthy Aunt Agnes swipes one of your photos or something you’ve written, and you’re willing to brave your Mom’s and your cousin Myrtle’s displeasure, go right ahead and sue Aunt Agnes.

  10. Bernice Bennett says:

    Thank you very much. This is a helpful article for those of us with old original photos. I definitely thought that as the owner of these photos, I had the legal right to make as many copies as I wanted.

    • Judy G. Russell says:

      Glad to help, Bernice. The issues are so much more complex than just who has a copy of the picture, aren’t they?

  11. Myriam Espritt-Steptoe says:

    Thank you for this article I found it more than helpful and interesting .

  12. Andrea Dietze says:

    You’ve opened my eyes to a whole new copyright wrinkle with public libraries’ photograph collections. Those of us in Library Land need to pay attention. Thank you for the clear, concise, and thoughtful post.

    • Judy G. Russell says:

      Andrea, for libraries and archives, I can’t recommend enough the link towards the end of the post to the copyright info from the Library of Congress. It’s a good solid common-sense approach (putting the onus where it belongs, on the user) with enough guidance for librarians to be able to steer patrons in the right directions.

  13. In the process of copyrighting and publishing a book I created, I was advised that if a copyright request is not accompanied by placement of a copy of the related work in the LOC, it is futile to prosecute and win a judgment against a violator of one’s copyright. I would like to see discussion about the pecuniary value of holding a copyright.

  14. Ginny R says:

    This is very helpful legal information. However the practical matter is that no one will be tracking what happened to a photo from 1900, especially if the rights were handed down to a relative. Also this only applies to photos with identification from the studio, correct? If there is no designation from a photo studio, then the photo can be used freely. How can the determination be made that a photo has a copywrite? For example, I am a photographer, and have taken professional photos of family members, but gave them the photo, negative & rights. In trying to print copies myself I have hit reprint locations that refused to do reprints based on the assumption that they looked professional, and therefore you do not have a right to additional prints!! Hogwash. Proof of ownership of rights is needed.

    If you did use a photo someone is tracking, the first step is they ask you to remove the photo, so take down/stop using the photo and politely ask on what grounds do they have ownership. If you are going to use a photo from a book or other publication method, request permission first and include a reference to the owner. Be realistic, not afraid.

    I hate to think that an article like this might cause people NOT to share old family photos for fear of being sued or going to jail. There is already a comment posted here that librarians are going to limit copies of photos. Really? Then we might as well let those items be destroyed since they effectively cannot be shared except to those who can walk into that library and personally view it.

    • Judy G. Russell says:

      This absolutely does NOT apply — as a matter of law — only to studio photographs. It applies to absolutely any photograph, including the iPhone snapshot you just took in your backyard and put on Facebook. Being realistic is the right way to go — any use of an old photo is a balancing act between the risk of being sued and the likelihood that a rights holder will sue you. But being realistic does NOT mean burying our heads in the sand and imagining that the law isn’t what the law really is.

  15. Ginny R says:

    Why do people want to restrict usage of old family photos? Especially when people say ‘I have the only known copy of my great grand parents, and I have the copyright and don’t want anyone to have a copy,’ I don’t understand. What’s that about? How selfish. No different than the libraries that lost funding and are destroying their old records — it’s mine and no one else can have them, not even a copy.

    The best is when someone photographs a headstone from a cemetery, then says there is a copyright. Like no one else on the planet can take a photo of that same headstone? Let’s be genealogists and share, not hoard and pick petty legal battles.

    • Judy G. Russell says:

      I’m all in favor of sharing. As a matter of fact, I strongly recommend the use of Creative Commons licensing especially for tombstone photos. (That says anybody can use this image, but give me credit for the work I did in taking it.)

    • -A says:

      I agree, however, I do believe people should ask before taking a photo. It’s just like if you’ve spent the past 20 years and a lot of money extensively filling out your family tree and a distant cousin, who just started researching yesterday takes all of your info and puts it in their public tree. Of course, family should share info with other family memebrs, but before taking something, ask first, just out of respect for the person who has worked hard to get this info. It seems like some peolpe are willing to take take take without even acknowleging all of the hard work that went into something. A family member recently gave me a few precious photos and before I decide to make them public, I will get her permission to do so out of respect for her first and I will acknowledge that she gave me the photos. This is aside from rules and copyright laws. It’s about basic respect.

    • Kerry says:

      right on !!

  16. Lena Holland says:

    I am fixing a book about us cousins and want to put old studio photos of some of my uncles in it. These are the only pictures I have of them. I can’t locate the photographers. I would be glad to ask permission to copy them, but I can’t find them. Is the Library of Congress working on changing some of these copyright laws of old photos? It would certainly be helpful for conscientious people!

    • Judy G. Russell says:

      I sure wish I could tell you that this problem — called orphaned copyrights — is on its way to being fixed. But the Registrar of Copyrights (which is within the Library of Congress) did a major report to Congress on this problem asking for a legislative solution six years ago… and nothing has happened to move it forward.

  17. J. says:

    Greetings from Toronto. May I add two comments here? As a new subscriber, in reviewing the thread on copyright, I am not sure that anyone has mentioned the fact that different countries have different Copyright legilsation and regulations than those of the United States of America? The rules here in the Dominion of Canada, while similiar in nature are different. Just this week the Supreme Court of Canada issued a ruling that deal with five parts of our Act and effects everything from artist / creator fees for downloading music to your ipod etc., to an much expanded intrepretation of the concent of “fair useage”.
    The second thought is can anyone provide a Case Law citation of a copyright holder who has sued, or even brought suit against a genealogist over use of an image?
    Food for thought on a Sunday morning in this hot, humid drought in North American while England is being flooded out …. but global warming does not exist, right – LOL. CHEERS! J. Brian Gilchrist

    • Judy G. Russell says:

      Greetings to our neighbor from the north! You’re absolutely right about the different laws, Brian, and I had mentioned that in one post on Australian newspaper articles but should re-emphasize it. And I’ll have to take a particular look at your recent Supreme Court case! As for anybody being sued over an image, few cases are brought — most situations will settle without litigation. But being aware of the rules and of fair use principles will avoid even the threat of litigation.

  18. Susan O'Neill says:

    Considering eBay has literally “thousands upon thousands” of old (personal and unpublished) photos posted for sale on any given day, I am a bit bewildered by this copyright law. If I am interpreting the law correctly, it states that then unless all these eBay seller’s have explicit copyright consent (which we know they don’t) from the creator of the image (or heir) , then they are violating the copyright law by posting the image and selling it?

    • Judy G. Russell says:

      Technically, yes. That’s copyright violation (though in any individual case there’s always the chance that it might be considered fair use). The fact that nobody is likely to enforce it is a detail.

      • Susan O'Neill says:

        Thank you for your timely response. If you don’t mind, I have another question? Not only is there an enormous market on eBay for buying and selling vintage photos, but there is also a significant market for individuals to sell “copies” of some of thier collected photos. If a person came forward and were able to show that they are the rights owner of an unpublished image, do you know what kind of legal award they could expect if they sued the infringer ? Are they entitled to ask for punitive damages?
        My guess is that unless the seller obtained a significant profit off the photo and/or it was widely publicized, it is probably not worth the time and money to file a suit.

        Thank you again,

        • Judy G. Russell says:

          (a) You can’t sue at all unless you’ve registered the image with the Copyright Office.

          (b) Statutory damages for a violation range from $750 to $30,000 “as the court considers just” — and that will take in all kinds of factors, such as the willfulness of the violation, the nature of the copyrighted item and its value to the copyright holder, etc. If the violator can prove he/she didn’t know it was a violation, damages can be as little as $200; if the copyright owner proves the violation was willful, damages can be as much as $150,000.

          (c) You can’t get statutory damages — only your actual damages — until you registered the copyright in advance.

          My guess is most of these cases involve unregistered works, if they were registered damages are going to be at the far low end of the scale, and the combined cost of registration and the filing fee for a case in federal court is more than could be obtained via a lawsuit.

      • Miguel A. Collazo says:

        The fact that nobody is likely to enforce it is a very important detail! If it was otherwise the market for selling and buying vintage photographs would grind to a halt. What good would that do?

        • Judy G. Russell says:

          Not exactly right. Anyone could still buy or sell a vintage photograph. What is affected by copyright is the right to reuse that photograph — to republish it. Put it up on your wall, no problem. Resell it, that’s another story. And, of course, if it’s truly vintage, it’s likely out of copyright anyway. But if it’s not, you don’t get the rights to republish the thing when you get the thing itself.

          • Rita says:

            Ok, that second sentence just confused me. Are you saying, for example, if I have a vintage image of my grandmother and it it looks to be an original print, I could sell the actual original print, even though I obviously didn’t take it myself, but if I make a copy of that image and sell it, then I may be violating a copyright?

          • Judy G. Russell says:

            That’s exactly what I’m saying: selling your copy is perfectly legal, but making a copy of it may very well violate an existing copyright.

  19. Linda Gilmore says:

    I just found your very helpful email. How complicated this discussion is. At any rate, here are my questions.

    (a) I have a picture of my aunts and uncle in a one room school picture taken in 1925 or 1926. From your discussion, it seems that this photograph was published as it was offered for sale to several families. In this area, there was one commercial photographer although there is no identifying feature on the picture. Does this picture fall under the third category line in your chart? What does the phrase “published with notice mean?”

    (b) I also have a few earlier pictures before 1923 that would not have been published. The pictures were of one family. These pictures it seems fall under the fifth category line. Again this lone photographer in the area died in the thirties, so if he took them, they are in the public domain. Right? This was and still is a very rural area, so I am making an assumption that this lone photographer took them.

    Can you comment? Thanks so much.

    • Judy G. Russell says:

      (a) A single photo offered for sale to many people could very well be regarded as published. “Published with notice” means with a copyright notice attached to, that is printed on, the item. So a published item with no copyright notice done in 1925-1926 should be in the public domain. There’s always the chance that there was a notice and it was cut off, or that the photo wouldn’t be regarded as published, but then the whole area of fair use comes into play and if you’re planning to use this image solely for non-commercial purposes you likely fall within the fair use doctrine anyway.

      (b) Any photo taken by a photographer who died more 70 years ago would be in the public domain, yes.

      • Barbara Fultz says:

        I have some photos of ancestors and want to put them in albums that will be given to my children. So are very old and look like professional photos. I do not plan to put them on the internet, only want to make copies to give to the children. Old photos don’t last forever.
        Can I make copies for this use?
        Thank you for any help re this.

        • Judy G. Russell says:

          Barbara, there are a lot of variables here. I’m assuming that there are no studio names on the photos, so no-one that you can try to contact for permission to copy the images. If that’s the case, then all I can say is that if I were in your shoes and I was fairly confident that (a) there was no way to find the original photographer, (b) the images are really “very old” (enough that the photographer could well have died 70 or more years ago) and (c) the photos would not be copied beyond a single copy for each child, I would do it — I would make one copy for each of my children. I might end up in hot water — but the odds are in my favor. This is not legal advice, of course. Just my own sense of what I would do.

  20. G says:

    Thanks for your very informative article. Here’s a scenario to consider:

    Let’s say someone in the United States wants to reproduce an old family photo of mine in a book that will be published in the US. The photo was taken more than 100 years ago in Hong Kong, at the time a British colony, and the name of the studio where it was taken is not known. Is this photo in the public domain?

    • Judy G. Russell says:

      This is a really complicated question, because it depends on the laws of several nations. Most likely, the law that would apply would be the law of Hong Kong, since that’s where the photo was taken. Hong Kong law provides that copyright lasts 50 years after the death of the creator or 50 years from the end of the year in which the work was first created or made available to the public if the identity of the creator is unknown. Given the facts as you outline them (no identifying information on the photo and more than 100 years old), then under Hong Kong law the photo probably is public domain. The answer might be very different if the law applied was US or British law. And there’s no guarantee how a court would decide the question of whose law applies. My own guess would be that it would be Hong Kong law, but you’ll have to make your own judgment and decide whether the risk is worth it if you’re wrong.

  21. G says:

    Thanks again for your reply. Let’s say that the family photo appears in an e-book and is also accessible via Google Books. Is there anything I can do to prevent that photo from being downloaded, manipulated or enhanced with photoshop, and re-sold for commercial gain? Obviously if it’s in the public domain, they would have every right to do so, but somehow that still feels like exploitation just because that photo has been kept in the family for generations.

    • Judy G. Russell says:

      I sure understand your uneasiness. But the fact is, if the item is in the public domain, it’s in the public domain. Unless publication can be shown to be actually harmful to living people today, there’s not even a legal leg to stand on to stop its use.

  22. Fiona says:

    Thank you for such an informative article. Having recently paid over $300 Australian for the copyright of my daughter’s graduation photos it is a topic of interest.

    Interestingly, copyright is different in different countries, it would be worthwhile checking if you have photos from the UK and other areas.

    I look forward to seeing the article of fair and reasonable use.

    • Judy G. Russell says:

      The rules certainly are different in different countries, Fiona, but because of international treaties the similarities are generally greater than the differences! But folks should review the law in their own home countries to be certain.

  23. In short, a designated heir, family or not, owns works and images created by their legator-bequeather-ancestor. Complicated to trace and enforce.

    As a Canadian editing for U.S. based Wiki and Gutenberg, both of which use text and images, I tried to summarize international copyrights comprehensibly on my aneyespy blog. I have not found the outcome of a recent proposed change in Canada. Not front page news here.

    • Judy G. Russell says:

      Correct. Copyright passes like any other property right, either by will or intestacy, in the United States. Complicated? You betcha.

  24. Frosty says:

    Interesting stuff.

    If all this is true….
    A few of the ‘unpublished’ 125 year old studio portraits that I own wont be in the public domain until 2026! i.e. Because the photographer (C.C.Curtis) didn’t die until 1956.

    I doubt that Curtis ever even copyrighted his published work. e.g. Multiple copy souvenir photos, for the general public.

  25. Frosty says:

    I’m not really too concerned with someone trying to sue me for posting a 90+year old family photo. What concerns me more is that websites like Flickr and Blogger might become hypersensitve to this issue and start a wholesale banning of such ‘unpublished’ photos. e.g. In much the same way Walmart refuses to make copies of very old family studio photos or the way YouTube became overly sensitive to copyright issues (For example taking down videos over supposed copyright issues over background music when the posters themselves owned the rights to that music).

    Question: What happens if the studio photographer never designated a heir to the copyrights? e.g. If the closest living relatives are the grandchildren, would they all equally hold the copyright ownership?

    • Judy G. Russell says:

      The terms of use are always a potential issue. As for your question, if there’s a will, it probably has what’s called a residuary clause (“all the rest and residue of my estate, I leave to the Home for Wayward Cats”) and that’s what would control. If there’s no will, then the heirs at law in whatever percentages or proportions the law of the state of residence directs.

  26. alexis says:

    This has been the absolute most helpful resource so far regarding all the questions I have. Allow me to add to the ongoing discussion, hopefully someone will know what I’m dealing with.

    I’m an avid collector of old slides. They are almost all images of American family life from the 40s-70s. As I began archiving them digitally I also began playing with the images. I’ve started a series of heavily edited images based on these slides. The original image is still very much there though. I really want to use some of the more amazing images I’ve worked and sell the prints. They are absolutely beautiful. The images are (because they are slides) very likely the originals and the only ones in existence. None were taken by professional photographers etc. They were purchased through auctions and estate sales for the most part, however, I have no way of getting in touch with the families pictured. (I wish I could!)

    I want to be respectful but I also love the images too much to let them sit and collect dust. I’ve seen tons of t-shirts and bags and screen-printed items that obviously use old photos (yes many are faked but not all).

    After reading this thread I’m pretty sure that I can’t use any of the images but I’m still looking for a loophole because of the loss I feel! I’d really appreciate the advice.

    Thank you!

    • Judy G. Russell says:

      Alexis, you’re absolutely going to need to talk to an attorney to get legal advice you can rely on (you absolutely can NOT rely on what you read on the Internet!!!), but do consider the issue of what’s called transformative use. You and your lawyer may be able to construct an argument that your use qualifies as a transformative use and, therefore, is a fair use under the Copyright Act. But I repeat: you need to talk to an intellectual property lawyer about this. (See my Rules of my road post from February 2012.)

  27. alexis says:

    I thought as much. I always begin with the internet as my starting point and branch out from there to debunk and fill in blanks. I think it will definitely be worth looking into further with a lawyer. If I get any helpful information I will relay what I’ve found.

    Thanks so much!

    • Judy G. Russell says:

      It’d be terrific to hear what your lawyer has to say, Alexis. Good luck — it sounds like a wonderful project.

  28. Ian says:

    Unbelievable. We live in the United States of America, the land of the free and home of the brave, and have allowed copyright laws to balloon from the original 7/14 year range to the draconian pile of ludicrousness you waded through in this article. Let’s see our Congress enact some copyright reform sometime soon and let Walt Disney and Mickey Mouse (the reported impetus for the massive extensions to US copyright law in the 20th century), as Marie Antoinette said, eat torte.

    • Judy G. Russell says:

      I certainly tend to agree that copyright length is.. shall we say .. a tad generous… particularly since so much of the benefit goes not to the person who created the intellectual property but to his or her heirs.

      • JW says:

        Thanks up front – this is a very helpful site. In my case, the length is a good thing. The year of death+70 years gives me the freedom to do as I please with my grandfather’s unpublished transparencies, something he was in the process of doing, 35 years after taking the images, when he passed away 40 years ago. It’s an honor to try to finish what he started.

        There are other images he did have published in a book in the 30′s. The book copyright has long expired but what about the images, for which I have negatives? If I make prints using slightly more of the negative content, is it the same as being an unpublished image? Technically, it is different…

        • Judy G. Russell says:

          I’d be hard-pressed to agree with you on there being enough new content in the reprinted image to qualify for a new copyright, JW. I’m not sure I buy that at all.

          • JW says:

            Fair enough; I realize it’s splitting hairs a bit and if I get any other feedback, I’ll certainly share it here. It would be convenient for me to treat all of the images the same going forward in a 30 year window.
            But assuming the copyrights for the book-published images have expired, new images made from original negatives will still be far better than other’s efforts to use images from the original book or low-res images I might put on line. I can certainly work with that sole advantage if need be. Thanks again.

          • Judy G. Russell says:

            Remember that if you’re re-publishing the old photos in a new book, then the new book is still copyrighted if it has the needed originality –which is usually from the organization, your selections, your text, etc. It’s just that those earlier photos by themselves individually wouldn’t be copyrighted.

  29. Sidney Levesque says:

    My question is: If the studio photographer, who for example made and sold photos in the 1890s, didn’t explicitly state in his will that he was leaving the copyright of the photos to his heirs, can they come back and sue someone decades later? If the photographer’s will doesn’t mention copyright, then it would seem that the rights died with the photographer. Or is that now how it works?

    • Judy G. Russell says:

      Nope. Not at all. First, if there’s a will, it’ll have what’s called a residuary clause (“all the rest and residue of my estate I leave to the rest home for wayward cats”) and the residuary legatee(s) (whoever gets that part of the estate) would own the copyrights. If there isn’t a will, or the will somehow doesn’t have a residuary clause, then it’s property that passes by the laws of intestacy of that state, and the photographer’s heirs-at-law own the copyrights. If the photographer didn’t have any heirs, it’s usually the state that becomes the heir-at-law under a legal principle called escheat.

      The key here is that, for the entire period that copyright lasts, somebody owns those rights. They don’t die with the photographer at all.

      • Sidney Levesque says:

        Thank you! Very helpful information.
        Unless I am making money off someone else’s photo, I think I am safe to continue to attach the images of old photos to my family trees on the Internet and to Findagrave.

        • Judy G. Russell says:

          “Safe” is one thing. But if it really is “someone else’s photo,” and you’re copying it, not just linking to it, please consider the ethics, not just the law. It’s just nice to ask permission, no?

          • Frosty says:

            But for the very old photos, how can we even know who to ask for permission?

          • Sidney Levesque says:

            If the photographer has been dead for 70 years then I do not need to ask permission.
            Also, the way most genealogists are using these photos would be “fair use.”
            The fair use of a copyrighted work is allowed for scholarship or research and is not an infringement of copyright.
            That’s what we are doing – family RESEARCH. Further, my family trees are for nonprofit, EDUCATIONAL purposes.

          • Judy G. Russell says:

            Family research is not a license for wholesale copyright infringement. You have to look at the entire fair use test and consider all of its components, not just one.

  30. Frosty says:

    This maybe a little off topic…
    I own the original glass negatives to a set of 100+ year old photos. (These are photographs of people in my hometown/area.)
    The photographer died more than 80 years ago. I am fairly sure that these photos were done as part of the photographer’s job for a large U.S. company (This company has been sold and merged since then). These negatives apparently were in private hands for decades before they were sold at an estate sale. I suspect that these images are unpublished; although I’ve seen one image from the same ‘photo shoot’ that was published 100 years ago. i.e. It’s the same people and same local as in one of the pictures I own, but the people are posed sightly differently.
    From what I’ve read about ‘works for hire’: “The duration of copyright for works for hire and for anonymous and pseudonymous works is 95 years from publication or 120 years from creation, whichever is shorter.”

    Question: So if these could be considered unpublished ‘works for hire’, does that mean the copyright lasts 120 years?

    • Judy G. Russell says:

      Answering the specific question (“if these could be considered unpublished ‘works for hire’, does that mean the copyright lasts 120 years?”), the answer is yes (120 years from the date of creation or 95 years from first publication). But there are an awful lot of “ifs” in that question. If the photographer took them as an employee and not as a contractor, if there wasn’t some side understanding about copyright, if they weren’t published… Lots of room for investigation there that could put these into the public domain, for sure.

  31. Diane Glover says:

    OK…so how does this apply to written correspondence. I have letters between a man and woman dating from 1895-1920…who courted..married..and had a family. None of their children survived with any offspring. I’ve been researching the family to look for any direct heirs. There are none…there are cousins of the authors…who may have descendants…. these peoples story is beautiful…I’d love to publish it…but am not sure about some third coursin twice removed showing up for a piece of the action…I would love to use actual letters in the book and their picture ….but it sounds like I just need to give this dream up….confused and disappointed..

    • Judy G. Russell says:

      This was addressed in the blog post “Copyright and the lost letters,” Diane. The problem you have here is compounded, for sure, by the fact that you don’t have any direct descendants to ask for permission. I can’t tell you you’re likely to be sued if you do use these letters — but I also can’t tell you for sure that you won’t. Your one big hope for a totally clear path would be if the letter writers died more than 70 years ago. Then the copyrights would have expired. Otherwise, you can always write this and not publish it until that much time has passed. You can choose to take the risk involved in publishing any way. Or you can track down the copyright owners and get permission. Only you can make that choice.

  32. Pingback: Responsible Online Family Photo Sharing -

  33. Craig Hansen says:

    If you have photographs from a family album that is 100 years old and is just taken by a bystander or friend or relative.
    (nonprofessional) Can you sell copies posters etc?
    Can you copyright.
    I can’t imagine that old photos of the 1906 earthquake or Cliff House with people in the foreground have the ok of those people to publish or use otherwise.

    • Judy G. Russell says:

      You don’t generally need a photo release for someone who’s dead. Seriously, unless the photo is going to be used for some commercial purpose AND the person’s estate has some economic interest in the likeness (think Elvis here or Marilyn Monroe), you can use the photos even commercially if they’re out of copyright.

  34. Stewart Darrah says:

    So, who owns copyrights, if any, of snapshots of my parents and their families taken by my grandparents? Would the rights belong collectively to my cousins and I, now that my grandparents, parents, and their siblings are mostly gone?
    Thank you.

    • Judy G. Russell says:

      If your grandparents left a will, then the copyright went to whoever received the residuary estate under the will (“and all the rest and residue of my property I give to…”). If they didn’t leave a will, then whoever their heirs at law would be under state law when they died, etc., on down the generations.

  35. Jes Lindsey says:

    Help,I am confused with the copyright ownership laws. 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.
    Thank You,
    Jes Lindsey

    • Judy G. Russell says:

      Jes, yours is a specific fact-sensitive legal question and I don’t give legal advice here (see Reprise: Rules of my road, posted 26 April 2013)– we just chat about legal and other matters.

      All I can tell you is what I’d do if I were in your shoes. I’d look at that receipt that said my Great Granddaddy bought “all rights” (which, absolutely, under the law can be sold, including copyright), and I’d be feeling mighty confident that Great Granddaddy owned the copyright to that picture. Then I’d think about the fact that my Great Granddaddy gave me the photo, and sigh that I wasn’t old enough to ask Great Granddaddy to sign over the copyright to me when he gave me the photo.

      Then I’d look to see when the photographer died and, if it was more than 70 years ago, I wouldn’t worry about copyright at all because the copyright would have expired anyway.

      And if it was less than 70 years ago, the only thing I’d be asking myself is if any of Great Granddaddy’s other descendants might think I was being a whippersnapper for not sharing the copyright with them, and if I was really concerned about that, I’d get those other descendants to sign off on my using the photo.

      That’s what I’d do. Your mileage may vary.

      Does that help?

  36. dawn says:

    What about the issue of modern family portraits taken by semi-professional family members? My father in law is a photographer and I was under the impression that the photos he took of me hours after giving birth were personal family photos, I was horrified to find a a photo of me and my newborn and partner on our local community website with my hair unbrushed, face looking awful, and belly hanging out. I was half dressed! In the moments after giving birth it never occured to me to ask him before he took the photo if he would be putting it online!

    Seems like there should be rules about putting family photos online without the permission of those in the photo.

    • Judy G. Russell says:

      I understand and agree with this concern, but in general when it comes to this sort of issue, it’s not the law that will control but the rules of good interpersonal behavior. Family members shouldn’t put images of living people online without permission and, if the images do get online, they (and any websites involved) should taken them down immediately if the living person objects. The law may not require that, but politeness and good manners do!!

      • Rita says:

        Why in this case would they not need a release form from the photo subject before posting it online? I understand that if they took a photo of someone on the street as they passed by a building, and they weren’t recognizable, or something to that effect, that they wouldn’t need a model release, but in an informal setting with the idea that the photos were for non-published use only, professional or semi-professional or not, why would they be ok to publish without a model release?

  37. Elaine says:

    I have thousands of slides from my grandparents. They took these slides on multiple world cruises in the 1950s and 1960s. They are both deceased for 25 years. The slides were given to my dad in the estate. My dad gave them to me. Help me understand if I could use these beautiful photos for stock photos. I hate to let these gorgeous pictures go to waste. I have scanned many of them and i would like to share his work.

    • Judy G. Russell says:

      You should be just fine here, Elaine. The slides were taken by your grandparents, so they owned the copyright. They gave the slides to your father in the estate and, presumably, all of the rights to the slides as well. And then your father gave them to you. Before using them as stock images, you may want to record the copyright on the collection with the US Copyright Office (and you’ll have to show your right to do so) because no stock company will accept them without proof of copyright.

  38. Frank says:

    I would like to make some reprints of Who’s who in baseball books I have that are before 1923. Can I reprint these books and sell them online. The who’s who in baseball book series still continue to this very day. They come out every year and I have every one back to 1916. with the exception of 1917,18,19,20,and 1921. These books are very, very scarce and I love the game of baseball and believe that baseball lovers could be able to get these books. Most of them today are in very fragile condition and will soon be gone. I would like to preserve the history of these books because of the players who represented that time in history and they should not be forgotten with all their contributions to the game. Thanks Judy for any help that you can provide me.

    • Judy G. Russell says:

      Frank, keep in mind that I don’t and can’t provide legal advice and when you’re talking about a commercial venture you really should get advice from a professional in your area. That being said, I can tell you that anything published in the United States before 1923 is now in the public domain and can be used in any way.

  39. Donna Hyora says:

    I believe copyright is not automatically granted to, say, a studio if it was not indicated copyrighted during certain periods–at least according to US laws. Merely being identified by name did not confer copyright on that entity during certain periods, unlike now when the creation of any work confers instant copyright status.

    • Judy G. Russell says:

      The charts set out in the post and a more comprehensive one from Peter B. Hirtle of Cornell University at Copyright Term and the Public Domain in the United States will guide you through those issues — but be very very cautious when dealing with unpublished materials. When the law was changed in 1976, effective in 1978, an awful lot of unpublished works gained federal copyright protection.

  40. Lorraine says:

    So… if we have old professional photos of relatives prior to 1978 (actually dating between 1900-1958) can we not copy them solely for personal use? For all siblings to have a copy?

    • Judy G. Russell says:

      ANY copying of an image that is still copyrighted is fraught with danger, even if you’re only sharing it within the family. That might qualify as a fair use, but might not. Getting permission, whenever possible, is the safest way to go.

  41. Dennis Cake says:

    I am writing a book on several people. I plan to use copies of pages of high school yearbooks. I called the schools and got their permission to use the copies of pages of the yearbook. Is their anyone else that I need to consider asking? Do I need to contact the people in the pictures or the possible photographer?

    • Judy G. Russell says:

      I can’t give legal advice on specific situations, Dennis, but you do have to work through all the possible issues here including copyright (is this material copyrightyed? if so, by whom? is this a fair use?) and privacy right issues (will anyone complain if you use a photo).

      • Dennis Cake says:

        I went to a public library near the high school where the year book was published and the library had a full set of yearbooks. Looking through the yearbooks, I found a message from the school to Olin Mills studio. I contacted Olin Mills (now called Life Touch) and they are giving me permission to use the photographs for my book. I also have the permission of the high school. I am limiting the use of photographs to only my dead relatives. I hope I have everything covered.

        Thanks for your help.

  42. Sheri L. Eaton says:

    I am visiting your site for the very first time – today! Am truly impressed.

    My concern is I have a photo of my grandmother, and mother, sitting in a restaurant in Tiajuana, Mexico, 1944.

    At the table with them, is the actor, Van Johnson.

    Under U.S. copyright law, I am required to obtain permission from Mr. Johnson’s family AND/OR
    the person in Mexico who took the photo? I have tried to locate the supposed photogragher but didn’t find anything listed.

    Your advise would be of great help.

    Thanks, Sheri

    • Judy G. Russell says:

      You don’t need permission from Mr. Johnson’s family to use the photo in ordinary use. (You might need permission if you were going to use it to advertise a product of some kind.) The problem of not being able to identify the photographer — who would likely own any copyright that might exist — is a tougher one. This is what’s called an orphan work (meaning one where the copyright owner can’t be identified or located), and Congress has had proposals sent to it for years to set up a system for dealing with the problem of orphan works — and has done nothing. In your shoes, I’d work through a fair use analysis and I suspect I’d come down on the side of using it for my own research and family history writing. But remember there’s never a guarantee in a fair use case.

  43. Shayne Davidson says:

    Thanks for in interesting discussion! So my understanding from reading your article and answers to questions is that, if the photo was made before 1923 and the photographer is unknown, the work is in the public domain. One needs to be concerned about copyright for photos made before 1923 only if the identity of the photographer is known. In other words, if there is no way to determine the identity of the photographer then a photo made before 1923 is in the public domain. And if you make a photo or scan of such a photo, you can publish your photo or scan without copyright infringement.

    • Judy G. Russell says:

      The key is whether or not the photo was published. If published in the US before 1923, then it absolutely is in the public domain, whether the identity of the photographer is known or not. If it wasn’t published, and the identity of the photographer is unknown (so the death date is unknown), the rule is 120 years from creation — which makes anything created before 1894 fair game.

      • Shayne Davidson says:

        Thank you for the reply! I guess part of the issue is also what constitutes “publishing”. It seems to me that could be debated. I am an artist and have created artwork using mugshots created between 1900 and 1910. The photos have no known restrictions on copyright according to the National Archives. Anyway this area interests me because many artists working in the pop and conceptual genres incorporate commercial photos made after 1923 in their artwork and they generally don’t get sued. I know there have been a few flagrant violations where a lawsuit has occurred and the photographer won, such as Rogers v. Koons. But generally artists seem to get away with it. Maybe if one if only using a portion of the photo it doesn’t constitute a violation.

  44. eLaReF says:

    New to this site and Whilst I’ve skimmed down the responses I may have missed this answer, so if ‘asked & Answered’ already, please excuse!
    I presume the laws quoted are for the US. Do they apply all over the world? i.e. is UK/EEC law different?

    • Judy G. Russell says:

      The law is similar in most countries since we all are signatories to the Berne Convention, but there are local differences and they need to be considered. A big difference is in how long copyright lasts.

  45. Kim says:

    And don’t bother trying to get a copy of it made at Walmart.

    This law is the biggest bunch of crap I’ve ever heard. It’s rediculous that I would have to try to hunt down an unknown photographer just to get a copy of my great grandfather’s portrait picture even though my great grandfather has been dead for 90 years.
    I have 4 pictures I wanted printed to hang on my living room wall that walmart wouldn’t print. I had the originals at one time for some and had scanned them for safe-keeping, others my aunts have sent me digital copies. And now because one got ruined & I’ve misplaced the originals of the others, I can’t get them printed/replaced. I’d hate to have had a fire or flood & be trying to get them replaced.
    So frustrating & well, just stupid.

    • Judy G. Russell says:

      Nobody ever said the law had to make sense. But if your great grandfather has been dead for 90 years, then the photographer has likely been dead for 70, so the image would be out of copyright.

  46. Mike says:

    My Dad took a lot of photos as a professional in the 1940-1950s. A few were published but most weren’t. The shooting dates were not always documented

    If he decides to publish some of them now for the first time, say as prints for sale or in a book, would he register the copyright as 2014? Or as the date he thinks they were shot?

    • Judy G. Russell says:

      He would register the copyright today. No matter what he does (publish or not) the copyright will end 70 years after his death.

  47. David Solomon says:

    OK so I work in the Information Assurance/Information Technology field. Where Copyright and Ownership are a major player for Companies. In my eyes everyone should be mindful of what they do with there own photos especially those old ones being uploaded to Ancestral Sites. Just like it has been reported once you upload something to the Internet it is their for good. Old Family photos should be shared with your family. Old Photos can be used for historical purposes or Ancestral family books. This is where maintaining that proper ownership and allow them either to make a royalty or provide a release form for what ever the Photo is going to be used for. You are starting to see this with Photos from the Jesse James collection as well as others. The Free Sharing of the Internet is ruining business for those people that have proper ownership of a photo. Right now I can download photos from and I don’t even have to be a member.

    • Rita says:

      As someone who uses Ancestry, I go in with the full understanding that anyone could take any of my family portraits from there, and I would only share ones that I both feel comfortable with sharing and feel that the person who is in them would not care, if they are deceased, and ask before posting photos of others, as well as only posting ones that I feel comfortable myself with posting and pretty much losing any proprietary use, even though I took them. I am of the mind that family photos and information should be shared among family members and anyone else who is interested. I know that it comes with the risk of some of my images being used in other ways, or even someone claiming they took the photo, or even changing the information as to who is in the photo, but I know the risk and I would rather those photos be available without hassle to any family now or later who may want them. That goes for any family notes I make. What I do not understand is those who post photos, or other information, leave it public, and then get upset that someone took it without asking. Sure, asking would be best, I guess, and I know some people just feel differently than I do, but I guess I feel like you should know what you are risking when you post things on Ancestry, and if you aren’t wanting to share, than you don’t have to make your tree public, or you can use their resources, but make your tree someplace else, or use Family Tree Maker or something and keep it offline. Now, that said, I do not believe in people going to places like Flicker or even Facebook, or random internet searches and taking them without permission and compensation.

  48. Found this to be a very interesting site with a lot of good information and people sharing their view’s. I have found on that a lot of people choose to claim my picture’s as theirs. I do not mind this as long as the original poster is given credit for their original works. I choose to share so others less fortunate that do not have access to some of the people places or things, will be able to add them to their tree’s.

    • Judy G. Russell says:

      Many of us post things online with the intent to share. But it’s ethical and courteous to do so ONLY by giving credit to the original creator — and only with permission.

    • Rita says:

      I completely agree with you, except personally on Ancestry, I would have no problem when it comes to the photos I take myself, with people using the ones on Ancestry without permission,as long as they keep the information with the photo. I put my name on them and who was in it, and sometimes where it was taken. I honestly in those cases do not even care if they credit me, though I prefer it, but I know and understand that is not the case with everyone. I feel that a lot of people going into Ancestry have only just started their genealogy search and do not understand that the photos may actually belong to someone in a different way than say the census records do, and it may not ever occur to them to ask permission or find out where they originated from. They may be looking at them as historical documents, not copyrighted property. Ancestry itself makes things worse with their ads making it look like you just click on the hints and that everything there is yours for the taking (and correct! LOL!) When I do mine, I typically title the photos with who is in them, and maybe more details like year and place, but I never label things in ways like, “my mother” or whatever, just so at least if someone takes it, they are not accidentally posting someone as their mother instead of their cousin or grand-niece. I know that isn’t a copyright issue, but it is an issue of historical accuracy, which I think is important.

  49. KS Cox says:

    Okay, I’ve read about the copyrights but I’m still unsure about a couple of things. I have an old photo of a great–great-great-grandfather that was taken during the civil war. Other family members have copies of the photo and one of them wrote a family genealogy book in 1983 that includes this photo. This family member does sell the book to others. The book is copyrighted, but I don’t believe the author ever provided compensation to the photographer or his family nor do anything to try to find the photographer. Of course, the photographer is long dead.

    Now, the author of the book says I cannot put the image on my website because the photo appears in his book. Does the book author hold the copyright to the photo now?

    Does the author have the right to tell me not to put up the photo on my website? How about if I put it on a family tree website of some sort?

    • Judy G. Russell says:

      It’s at least theoretically possible that the photo could be covered by copyright. A previously unpublished image first published between 1978 and 1989 with a copyright notice could still be copyrighted until 2047. BUT … and this is a BIG but… the author would have had to own the rights to the copyright in order to claim the copyright. You can’t just scarf up somebody else’s work and toss it in a book and claim a copyright because you managed to publish it first. So assuming that (a) the author of the book wasn’t the sole owner of the rights to the image and (b) you got your copy of the photo from another sources, no he does not have the right to tell you not to publish the image on your website.

  50. Mary says:

    Thanks for another interesting post. Copyright can be so confusing. I am doing a photobook for my sisters as a Christmas present of the three of us when we were little. All the pictures are snapshots my parents took and my sisters and I inherited the rights (there was a will), no problem there. But I was thinking of including the Santa pictures that were taken at Macy’s in the 1950s. I did send them an email asking about this, but I was wondering about studios that were in stores – very common, even today. The photographers were employees of the stores, so I would guess the store owns the copyright? But what about when the store goes out of business? I know we had some pictures taken at Alexanders and they are closed.

    • Judy G. Russell says:

      Your use of those Santa photos should qualify as fair use, Mary, no matter what the copyright status is: this kind of non-commercial use on your part has no impact whatsoever on the market value of the originals and that’s usually the biggest factor in the fair use analysis. In addition, before the 1976 copyright act, it was generally the case that the person who ordered or bought a custom photo like this owned the rights to it, rather than the photographer.

  51. Mike Cha says:

    How would you “tag” old photos for sharing on the Internet (such as a blog). I have some 20-70 year old photos by my father who is deceased. Technically the copyrights are owned (inherited) by my mother. I like to tag (visible watermark of “(C) name” without year) the photos just so it’s clear where they came from and that they are not in the public domain. Would you put the decedents name, your own name (as digital manipulator, first publisher), or the living copyright holder’s name?

    Secondly in those shots where the photographer is somebody else (such as when you hand your camera to passerby to take a photo of you with your family) does that mean technically you are not the copyright owner?

    You don’t mention it above but I think there is another issue you didn’t touch on. And that is, just when you think everything is fine, you for sure own the copyright of a photo bequeathed to you of your parents visit to Hollywood or Paris or something. And you have this fantastic image of them in front of the Eiffel Tower…but wait, certain landmarks (private property) etc are copyrighted in and of themselves. So you’re still not free to use such photos. Of course this applies primarily to commercial use.

    I really enjoy your blog. Always very interesting.

    Thanks, Mike

  52. Marnette Hofer says:

    I’m an archivist at a small local non-profit museum, and we have a collection of negatives given to us by the photographer himself before his death. Would there be any reason we can’t make copies from these negatives?

    • Judy G. Russell says:

      As long as it was reasonably implied in the gift of the negatives, I wouldn’t hesitate in your shoes. (Keep in mind — this isn’t legal advice. I’m just saying what I would do if I were in your position.)

  53. steven carl sanford says:

    My mother has passed away and 98% of her family i have some photos that were passed down to me that are worth allot that i will not sell but pass down to my grand kids my great great uncle is Ralph Depalma the race car driver the library
    of congress has some photos that people are making copys of and selling on ebay i have bought many of them myself there are many people making money selling these copies im sure they do not have written permission seeing he passed in 1956 can these people sell these photos and the ones at the library of congress say this on them Rights Advisory: No known restrictions on publication. how do they come up with this seeing im one of the last family living can i put a stop to this if not can i open my owm ebay store and make copys of all the ones i got and start making big money like these people are

    • Judy G. Russell says:

      Nope, you can’t put a stop to it, for two reasons. First, copyright belongs to the photographer, not to the person photographed. It doesn’t matter that Ralph De Palma is your relative if — as is the case with the photos on the Library of Congress website — someone else took the photographs. Second, the photographs were published before 1923 (in fact not later than 1915). Anything published in the United States before 1923 is now in the public domain, with no copyright protections of any kind. And yes, as to those older photos, you can make copies and sell them yourself if you want. But keep in mind that the copyright issue begins with who took the pictures, not who’s shown in the pictures.

      • Wanda Williams says:

        I was at Cracker Barrel and there were antique pictures all over the walls ! It made me wonder if and how it was possible to sell copies of my grandparents and great grandparents photos . I’m not even sure if I would want to except to my direct family and cousins .

        • Judy G. Russell says:

          If (a) the photographer died more than 70 years ago or (b) you own the copyrights by inheritance or gift, then sure. Go ahead.

  54. Don says:

    I have in my possession what could be a historically significant and valuable cabinet card. The photograph looks to be shot in 1880′s and has no photographer’s mark on the card. An author wants to use the image on their website and in a Powerpoint presentation as part of a book promotion tour. The author has warned me that this image will cause a sensation and suggest I protect my interest. I know I can not and do not own the copyright but I do own the original. What can I do to protect my interests?

  55. John says:

    Interesting post, though I’m left with many questions! If a photo is taken by employee X in studio 1, then does copyright belong to employee X or to the owner of studio 1? If a photo is taken by family member Y, but developed by employee Z in studio 2, then does copyright belong to family member Y, or to employee Z, or to the owner of studio 2?

    If a studio didn’t obtain a model release from a subject, does the studio have the right to ever publish the photo? If they don’t have the right to ever publish a work, is it really possible to own copyright on something they don’t have the right to publish? Can the studio give or sell negatives or photos to anyone other than the people (or their descendants) who commissioned them or submitted them for developing?

    It would be nice if a bill were passed simplifying copyright law with respect to family photos.

    • Judy G. Russell says:

      You already know the answer to most of these: it depends! The time period really matters here. At one time, the copyright in a studio photo tended to belong to the person who commissioned the photo, not to the photographer. That changed as time went on. So that’s one time frame issue. As to the question of the employee or the studio owner, that’s a work-for-hire issue, and the law on that changed over time as well. That’s time frame issue number two. The copyright has always belonged to the creator of the work, and that would be the photographer, not the developer. If I hire you to print my book, it’s still my book, not yours. Copyright is entirely independent of the model release issue, and sure it’s possible to have a copyright in something you can’t publish. What the studio can or can’t do is likely governed by the contract it had with its customers, and that’s another “it depends” thing. All of which comes around to, oh yes it would be awfully nice to have a simple straightforward law on family photos. But we don’t have it now.

  56. Pam says:

    So if I read this chart correctly, the old tintype I found which was made (judging by the clothing) at least before 1860 and contains images of (I think) my grandfather who died in 1908 & grandmother who died in 1933 but was certainly never “published” anywhere & the photo is not stamped or otherwise identified with a photographer’s name is in the public domain today? And I can use it (respectfully) in my artwork where it is clearly identifiable as an old photo? I don’t even know if anyone living in my family has ever even seen it since it was buried in the bottom of a bag of old rent receipts. Since there were many itinerant photographers of the day, I know there were no local studios at the time and my family certainly would not have paid to travel far for something so frivolous. I would appreciate your insight – thanks!

    • Judy G. Russell says:

      Most likely the photo is in the public domain. In theory the copyright could belong to the photographer if he died within the last 70 years, but the facts that you’ve outlined make that unlikely and any use you might make of it is likely to be a transformative fair use anyway.

      • marian davenport says:

        Your comment about a tintype made me think of an incident that happened to me. My cousin had an old tintype of our great grandparents from late 1800′s. It was so dark, no one had ever seen the actual people. We scanned it into Photoshop and color-corrected it, and everyone in the room was amazed that this was what our great grandparents actually looked like! I posted it on a MyFamily site (they have now closed down their websites but evidently did not delete the owners’ photos and material) and now I see it being used for advertising on Ancestry, for which they are charging a subscription fee to access. It seems someone has stolen my property and is now charging others to view it!

        • Judy G. Russell says:

          You’re going to want to check the terms of use of the website when you uploaded it. Those terms may have acted as a license to the website to use the item.

  57. Linda says:

    Oh, heck! We’re all going to jail! See you guys there! I want the top bunk!

    • Judy G. Russell says:

      Nah… there are some groups even the jailers don’t want to deal with — can you imagine bunks full of genealogists???

  58. -A says:

    I will be publishing a book on my family history soon. We don’t really have many old family photos, but I met a cousin not too long ago who had a few precious family photos from the early 1900s, which she shared with me. I would like to include the photos in my book and I wanted to at least get my cousin’s permission to publish them, but she has since passed away. I recently reached out to her descendants who are unresponsive. Is there anything I can do – or should I just forget about the photos. I know at least one of the photos was taken professionally.

    • Judy G. Russell says:

      Using old family photos to illustrate a book of family history might be regarded as fair use under the US copyright laws, and the issue only applies to photos that (a) were properly copyright-protected in the first place and (b) aren’t now out of copyright. Fair use is a doctrine that is created by law that says using copyrighted materials for scholarship and research may not be an infringement if — after balancing four statutory factors — the balance tilts in favor of the use. It’s not an easy concept, and to be 100% sure that what you’re intending is appropriate, you’re going to want to consult with a licensed professional who practices in your state.

  59. Richard James says:

    So my 1871 Sepia Photograph of Beethoven (photograph of a painting by Carl Jaeger) is out of the question in obtaining rights and gaining Royalties from the millions of prints created from it?

    • Judy G. Russell says:

      Pretty much (on originality grounds, if nothing else). And if the photograph died more than 70 years ago, not even a prayer.

  60. Kathleen Baxter says:

    I was startled to discover that a state historical society owned a collection of photos taken by my great uncle, a photographer with a studio. He has no living descendants. When I visited the Historical Society to look at the photos, many of which I own cabinet cars of, I got a lecture on how I could not publish the photos, which his grandson gave to a neighbor.
    I am bewildered as to how a neighbor would own a copyright on photos of my grandmother’s family which had been in our family for over 100 years. The photographer died more than 70 years ago.
    I had no intention of publishing the photos, several of which were mis-identified. My grandmother was identified as her brother’s wife. The historical society had done the identification. But the lecture I got made me want to publish them immediately.

    Thank you!

    • Judy G. Russell says:

      Unfortunately, it sure sounds like the person who gave you the lecture didn’t do his/her homework. First, the historical society’s ownership of the photographs has nothing to do with who owns the copyright (if there is one, at all, today). The society may be able to say whether you can copy images where it owns the only copy, but the fact that it has a copy of a photo you also have doesn’t give it the right to control what you do with your copy. It can only control what you do with your copy if it also owns the copyright on the original.

      Subject to my usual caveats about this not being legal advice, the fact is that whatever copyright there ever was would have been owned by your great uncle or, perhaps, under local law, by the person who hired him to take the photograph. His copyright would have passed on his death to his heirs either by will or by intestacy law. Unless the grandson was the only heir and unless he gave the copyright to the neighbor, in writing, when he gave the neighbor the photos, the copyright wouldn’t have gone to the neighbor or anyone else.

      More importantly, the copyright on unpublished works as to which copyright was never registered only lasts a maximum of 70 years after the death of the photographer. If you’re right that all of these photos were taken by a photographer who died more than 70 years ago, there wouldn’t be any copyright on these images.

      So the historical society here can only control who publishes copies of any photograph where it owns the only copy (and that’s a matter of contract law, not copyright law). It can’t control what anyone else does with any other copy after the copyright expires.

  61. Kathleen Baxter says:

    Thank you so much. I do not get easily outraged, but this whole incident definitely outraged me! I believe that my great uncle took photographs of his parents and his siblings and gave a copy of each of them to all of them.

    This is a cogent and lovely response and soothes my ruffled feathers. I must add that when I contacted the historical society and corrected the mis-identified photos and told them I had cabinet cards of many of the images, they asked me to donate those cabinet cards to them! It would be a cold day in hell…

  62. cheezfri says:

    I know that I am legally allowed to make archival copies of CDs and video games in case I lose or destroy them. Why can’t I scan a photo and save it electronically? If I don’t publish or do anything with it, it’s a legitimate use — a backup. Akin to having a negative of the original photo.

    • Judy G. Russell says:

      That may be a permitted use. See Peter Hirtle’s “Digital Preservation and Copyright” post from 2003 here.

  63. BJ says:

    After reading this entire helpful site, I am still not sure of the law when it comes to owning a “one of a kind item”. What if a person physically owns the only known photo of a figure of history, which had to be taken prior to 1860. The owner is no relation at all to the historical figure or the photographer, whose copyright has lapsed. The image was purchased at a flea market and published by the finder, who now believes he has the right to control all use of this image. Selfish, indeed–but true or false?

    • Judy G. Russell says:

      It’s no longer a matter of copyright law when the item is out of copyright. It becomes a matter of contract law, really — or property law. If I own the only copy of something — a painting, as an example — I can limit everyone else’s access to that item as much as the market will bear. Once I publish it, however, my ability to control access and use will dramatically change.

  64. BJ says:

    Yes, the image was published–so does that mean the image is out of the legal control of the physical owner?

    • Judy G. Russell says:

      The only possible answer to that is: it depends (there are an awful lot of variables). If you’re planning on fighting with the owner over it, talk to an attorney in your jurisdiction.

  65. BJ says:

    I think I ought to have added that the image was published in a book, not on the Internet.

  66. BJ says:

    Yes, always good advice–yet it seems to be in contradiction to an opinion you expressed in another blog post. This seems to me to be comparable to the situation of Historical Societies, most of which have one-of-a-kind photos that–yes–they are always attempting to license and otherwise control. These historic photos are also of the 19th Century, copyright lapsed. Of what use is a public domain when most 19th Century images are unique, at least now? It is not, in my estimation, like a painting that one has made for hire. What about that Federal Court case Bridgeman? Didn’t that court rule in favor of images of unique works of art not being copyrightable–as they, themselves, were not unique?

    • Judy G. Russell says:

      I can’t stress this enough: if this item was out of copyright, then use of it today isn’t governed by copyright law. I have no idea what restrictions this work was sold under, and it’s those restrictions — as a matter of contract or property law — that will control.

  67. BJ says:

    I would just bow out of this if I didn’t envision a whole slew of people with 19th Century photos, researching their rights online and coming across this page, saying “Aha! I knew this was my property and I could control its use!” “Public domain” and “private ownership” seem to me to be a dichotomy. I have been reading your blog posts, Judy, and this is the first time you’ve given such a response. You are now strongly hinting that the mere act of having purchased an item gives one “rights” to it and how it is used. It’s like me buying a tie, wearing it, and going around telling others they have no right to wear that same tie because it’s my favorite. Where are my rights to control something I never created just because it is in my possession and I think it looks best on me? What’s the property law involved? I think you need to be more specific because more persons may be affected by your response on this issue than you perhaps realize. Is there some decision that influenced this response? If not, here’s my take for what it’s worth. Nothing prevents that physical owner from profiting from the item. He could probably re-sell it for much bigger bucks than the price he paid. He can even charge persons for reproduction of the image–those who are willing to pay. No law against it. But he still has no rights–because those were owned by the original creator and have lapsed. For me, “public domain” amounts to “no Permission necessary”–otherwise I repeat my question, which was “Of what use is the public domain?” You just addressed putting antique photos on Findagrave and my impression was that you opined the owner of the photo couldn’t control it. What’s the difference here? Please be specific, and not just for my sake. Obviously, this is a burning issue out there.

    • Judy G. Russell says:

      You are confusing some issues here: ownership of one copy of the thing gives total rights over the use of that one copy of the thing, but may have nothing whatsoever to do with copyright. And ownership of the copyright can exist even if someone has published or sold copies of the thing. I realize you’d like to have black-and-white answers here — but the law is rarely that simple.

  68. BJ says:

    I see what you’re trying to say. sure, but a) That only one copy of a photo exists may not be ascertainable. B) It’s doubtful that copyright can be in place for something made prior to 1866–and the law is clear on the length of copyright duration. I am just referring to 19th Century photos, in any event.
    I know better than to think that the law is black and white but I do know it is governed by statutes or the caselaw [decisions] and I wish you had cited just one for your assertion that “ownership of one copy of the thing gives total rights over the use of that one copy of the thing”. I’m not saying you’re wrong, but there must be something you are basing this on. If it’s common law or caselaw, believe me–I’ll find it and be satisfied. (I’m not totally ignorant when it comes to the law] Also, when it comes to suing foreign actors, that may be tough. If it’s not about copyright, the matter won’t go to Federal Court. The caselaw pretty much forces litigants to sue in the jurisdiction of the defendant these days. What would the matter be about? Theft? That’s for the police. Damages? If one wants to have exclusive control over a photo and not even sell reproductive rights–not much in the way of damages to claim. But let’s be clear about one thing. Do you or do you not believe that Historical Societies own the [perhaps] one of a kind items they are reproducing or licensing?

    • Judy G. Russell says:

      I’m not sure you do get what I’m trying to say. Your original hypothesis was that there was only one known copy in existence. The rights of the owner of the only known copy are a matter of elementary property law: if I own the only physical copy of something, I can impose any restrictions I want on anyone who wants access to it. There are too many variables that come into play beyond that initial access to provide any black-and-white rule. But it is absolutely black-and-white when it comes to initial access: if I have the only copy, you play by my rules or you don’t get access.

  69. BJ says:

    Let me put in black and white for you. Since there are practically no duplicate copies of 19th Century photos [unless made by some more modern duplication process] according to what you seem to be saying–there can be no 19th Century photograph in the public domain. Because they are all in the possession of someone, a private individual or an institution like an historical society. They all believe they are the owners, even the societies, even though one might argue they are acting in the capacity of stewardship. If it’s a matter of such elemental law, why does even a creative online search bring up no discussion of that except this one here? As to access, if I physically own an item I can put it in a box with seven locks sealed with seven seals. I can prevent even my guardian angel from looking at the item–but that has nothing to do with the law governing torts. That is, rights of the individual and the possible violations of same. I thought that was what was being discussed. I asked you for chapter and verse, some source, any source, and the best you could do was to assert that perhaps that I’m lacking in comprehensive ability.

    • Judy G. Russell says:

      Okay, enough already yet. This has degenerated into plain silliness. Tort law? Torts??? Seriously? What in the name of all that’s holy are you even talking about? You want to continue to debate this, go start your own blog and write about your own views of the world, one in which tort law affects contract law and/or copyright. I’m through.

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  72. Wendy says:

    I was doing some research at the library and saw a photograph of a popular brewery in a local history book. The photograph was dated circa 1902, but the book was copyrighted 1997. I contacted the author of the book, and the owner of the photograph, to ask if my company could make a copy of the photograph that was in the book. To my surprise, the owner still had the original photograph and agreed to let us reproduce it for a nominal fee. My company intends to create a wall mural from the photograph, which is fine with the owner as long as we include her family name in the credits (which we agreed to do). Although the photograph was created before 1923, it wasn’t published until 1997. My question, is the photograph in public domain, or does it fall into category six in your chart?

    Love this blog. Very useful information!

    Thank you,


  73. Wendy says:

    Thank you, Judy. That’s what I thought, but I wanted to make sure.

  74. The published/public domain issues for images after 1978 are concerning to me. In the throughout the 1990s, I was in pageants. As such, I had numerous portraits taken for use in program books and photogenic competitions. Unfortunately, I did not keep the program books the images were used in but I know which pageant I used each photograph in (thus, the photos were published in the public domain).

    Finding the original photographers is nearly impossible, as a few I can’t even remember the individual person’s name. I do want to use these photographs in a personal memoir about my pageant experience and many friends and family want to purchase a copy of said book.

    So… how do I handle this situation? Seems to me that these pageant portrait photographers knew the photographs would be used in the public domain in various ways (and they were). If I was able to use said photographs in the 1990s, wouldn’t I still be able to use them in 2015 in a new project?

    (BTW… I’m trying to find the photographers but they seem to have dropped off the face of the earth… and potentially have died as they were in their late 30-50s when they took my photos 25 years ago. Some could still be around, but man… they’re not easy to find.)

    • Judy G. Russell says:

      A couple of fundamental misunderstandings here. First off: “the photos were published in the public domain.” No. They were published, but publishing them does not automatically mean they’re public domain. (Public domain is a term meaning the status of being free of copyright.) Any photographer who took a photo of you in the 1990s kept the copyright unless he or she agreed in writing that you would get the copyright. The fact that the photos were to used for publicity also does not mean they were public domain images. If they were, anyone could use them — not just you. Second, “If I was able to use said photographs in the 1990s, wouldn’t I still be able to use them in 2015 in a new project?” No. That’s not the way copyright works, unfortunately. The permission that you had to use the images was to use them in a particular way. It might extend to the use you’re talking about now, but that would depend on your understanding and agreement with the photographer. But having permission to put them in a program doesn’t automatically mean you can use them for a book. Third, even if the photographers have died, their copyrights survive: copyright lasts for the life of the creator plus 70 years. So you really do have to think about whether your use of these images falls into the category called fair use under the statute and you should probably consult with a licensed professional in the state where you live since you’re talking about producing a commercial book.

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  76. Martha Stoetzel says:

    I am glad I found your website before I started my “new business”. I was planning on painting ancestor portraits for customers. Having them provide me with their old black and white photos. Clean them up with photoshop and have a printing service print them on canvas and I would do an oil painting over the old photos.
    Not such a good idea. Who knew

    • Judy G. Russell says:

      It’s not an impossible idea, Martha — a lot depends on when the photo was taken and by whom. You really might want to consider talking to a licensed professional in your jurisdiction to get legal advice you can rely on (I don’t give legal advice here — I’m a genealogist with a law degree, not a lawyer who happens to be a genealogist!) but it seems to me that if you had every client sign a statement that he or she had the right to use the photograph and would cover your expenses if you ever got sued by a copyright holder (it’s called a “hold harmless” clause — you can look it up online to find out more) you might be protected enough not to worry about it.

      • Martha Stoetzel says:

        Thank you for the reply I will look into the “hold harmless” clause. So pleased with the prospect of continuing with my plans

  77. Hannah Buso says:

    My dad recently passed away. We came across some very old film/negatives. They were actually taken at a studio that has since gone out of business. Am I right to assume that if my dad had possession of the negatives, they gave him the permission to reproduce photos as he needed them?

    • Judy G. Russell says:

      Nope nope nope nope. Ownership of the thing (the negatives) is not the same at all as ownership of the copyright. You can make no assumptions at all based solely on possession of the thing.

  78. Rosi says:

    From what I’ve read so far

    1) if you take the picture you own the copyright e.g photos on your travels etc
    2) you cannot take photos of people / identifiable buildings without consent

    What I don’t understand is why it applies to professional studios or commissioned photographs.

    Surely if you pay someone to write a book or take a picture for you , as the commisioning person own the rights. After all the photographer could not take the photograph at all without your permission and, unless you were famous, would probably not even be interested in taking the photograph.

    If the photographers own the copyright can they do anything with it e.g. splash your picture all over flicker, the cover of a book etc… If so why would you ever let anyone take a photograph of small childen?

    It almost makes you want to pack the camera away

    • Judy G. Russell says:

      Yes, you own the copyright if you take the picture, but no, you usually do not require permission to take a photograph of a person or a place if you’re out in public. You may, however, need permission for some specific types of uses (using the photo of a child for a commercial advertisement, for example). So while the commercial (or even amateur) photographer owns the copyright, the photo may not be “splashed all over” without some limits. There was a time when hiring a commercial photographer did give the copyright to the person who hired the photographer. That’s no longer the case. So if you want a professional, make sure to discuss the issue of copyright and include it in the contract.

  79. Mike Gora says:

    Fabulous info. I’m the historian for Middle Bass Island, OH and am about to publish a photo book of historic pictures. There are about 12 people who have donated photos over the years by letting me scan them. They all know I have been using those in history presentations and all but one, who is deceased, have given me email or written permission to use the photos in the book. Should I hunt down the heirs of the one who is deceased? Or is that not necessary since he let me copy them ten years before he died.

    But I also manage the digital archives for a couple of small local historical societies since I am the one who has been scanning photos for them. In the past, we have not obtained releases to publish them, even when that use has been implied. And very few of them are published. I’ve never seen a discussion of any special rights that come from being given access to scan. Are any rights transferred in that process? The issue just came to let when a woman who let us scan some 1975 photographs objected to their being on the web even though protected with a watermark from copying. If someone lets me copy a photo, what are the rights with that copy?

    • Judy G. Russell says:

      Mike, because I don’t keep a current law license, I don’t give advice on current legal issues and always advise folks who do have current issues to seek out a licensed professional in their jurisdiction. That being said, I can tell you that I would get permission from the heirs of the one deceased person and I would NOT be putting scanned images online without permission. That’s because I would think that NO rights are transferred by allowing a scan other than its use or display in the local historical society itself. Republication requires additional permission, even if it’s on the web.

  80. Laura Vonk says:

    This whole issue frustrates me, but from a totally different perspective.

    I love to take pictures, but I’m not a professional in any way. I’m blessed though to have taken what must be good pictures… I now find myself taking all the senior pictures of all the kids when it’s time, family pictures, as well as now taking all their wedding pictures. I’ve kinda become the official family photographer for everyone and every occasion. I give CD’s to them all and anyone else in the family who wants them, and tell them to do what they want with them. They have had trouble getting Walmart to print the photos for them because they said they didn’t have a release from the photographer. In the end, the only reason pictures were printed was one of the techs that worked at my own local Walmart, knows us all, was at two of the weddings, so knew there was no copyright infringement, printed most of them for us. I WANT my descendants to be able to freely copy, share, copy some more, enjoy, use in their family histories, put online, etc., etc., etc. If I die tomorrow, will my great grandkids, great grandnieces, all other future family members, etc., be unable to copy and share the photos I took because they look professional and are fairly recent (not 70 years after my death)? How can they all prove that I gave them the right to do what they wanted with them if I’m not here. What do I have to do? Write out 1000 releases for any of the many future relatives who might want to print them out over the next 70 years? Never dreamed this would happen to me and quite frankly, find the whole thing ridiculous.

    • Judy G. Russell says:

      I can understand your frustration, but there are ways to handle it. Put a release in the metadata of every digital image. Put the images online with a Creative Commons license. And there are other options too. You can designate someone in the family (or a trusted friend or lawyer) to handle releases for you after your death.

  81. greg says:

    I saw a photo of my dad when he was 16 on eBay it was a photo saying he killed someone the photo by acme news photos and being sold on eBay I never knew this so I was shocked seeing this for the frist time the photo was a private shot that my grandfather took so how can they sell this without my permission can someone help on this

    • Judy G. Russell says:

      Your question raises an issue of current law and since I do not give legal advice you will need to consult with an attorney licensed to practice in your jurisdiction.

  82. Dennis Lee Burman says:

    Do you think that a person posting a photo on a website such as Facebook or Ancestry, where it is known that photos are shared with others on the website, waives his or her right to copying/sharing of the posted photo (at least to copying on the website, and maybe even outside the website)?

    • Judy G. Russell says:

      The terms of use of websites like Ancestry and Facebook do generally allow the sharing of a photo uploaded by a user to the website, by linking to the original. But nothing in the terms of use allows copying (that is, downloading and reuploading elsewhere or even within the site).

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