Copyright and the wire photo

Next in an occasional series on copyright — the news service

Reader and fellow genealogy blogger Michael John Neill, who writes the popular and helpful Genealogy Tip of the Day posts, came across a photograph in a 1942 newspaper on GenealogyBank. The photo was taken by a photographer working for the Associated Press (AP) news service.

UPI wire photo: The Titanic

Michael hadn’t yet examined the newspaper page by page to see if it had the copyright notice required at the time, but it occurred to him that there might be yet another level of copyright at issue here:
“Even IF there is NO copyright notice on this WW2 era paper, doesn’t the AP’s copyright still apply?”

Easy answer: Yes. Accurate answer: It depends.

First off, let’s make sure we’re all on the same page about just what AP and other news services are and were.

The Associated Press was America’s first wire news service. In 1846, “five New York City newspapers got together to fund a pony express route through Alabama in order to bring news of the Mexican War north more quickly than the U.S. Post Office could deliver it.”1 At that time, the AP says,

… words were the only medium of communication. The first private sector organization in the U.S. to operate on a national scale, AP delivered news by pigeon, pony express, railroad, steamship, telegraph and teletype in the early years. In 1935, AP began sending photographs by wire. A radio network was formed in 1973, and an international video division was added in 1994. In 2005, a digital database was created to hold all AP content, which has allowed the agency to deliver news instantly and in every format to the ever expanding online world.2

The British news agency Reuters was probably the second such service founded. Its history dates back to 1849 and it claims a founding date of 1851.3 The second big American news agency — United Press International — wasn’t founded until 1907, by E.W. Scripps, specifically to take on AP and its then-stranglehold on American news.4

These and many other news services create content — articles, photographs and more — and distribute them to newspapers and other news outlets under a licensing system. And it’s the terms of the license between the news service and the individual news outlet at the time that’s going to govern whether the news service — the AP in Michael’s 1942 example — or the newspaper, or both, would hold the copyright, and who would be principally responsible for registering and otherwise protecting the copyright.

In general, the news services sell (license) only the right to use the image or other content to their member news outlets. That’s been true from the beginning. And if that’s the license that was in effect for a given image, then only the news service would ever have had the copyright on the individual image, and then only if it took whatever steps the law required at the time to get the copyright.

Each newspaper that used the image might be able to claim what’s called a compilation copyright. That’s when someone (like a newspaper editor) chooses from a selection of materials created or written by others and arranges and highlights them in an original way.5

So the easy answer: yes… there could well have been an original copyright to the image by the news agency itself above and beyond any rights the publishing newspaper might have had.

But the more accurate answer? It depends. And a very large number of the older news service photographs that we as genealogists might be concerned with today will not be copyright-protected today.

First, remember that anything published in the United States before 1923 is no longer copyrighted even if the copyright holder did everything it needed to do in the past to create copyright protection. Any U.S. copyright protection on any photograph published before 1923 has expired; the image is now in the public domain.6

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.”7

That’s why I have no concerns at all about using UPI’s 1912 photograph of the Titanic as an illustration for this blog: it’s no longer copyrighted if it ever was copyrighted.

Second, the simple fact of the matter is that most of the older news service photographs were never copyrighted. Remember that between 1923 and 1963, a published item like a photo had to have a copyright notice, the copyright had to be registered with the U.S. Copyright Office, and — for protection to still exist today — the registration would have had to have been renewed.8

And, according to the Library of Congress — home of the U.S. Copyright Office itself — “only a few images were registered for copyright and those copyrights were not renewed.”9 That may not be true of every image but it’s certainly true of most of the older news service photos.

We still have to be careful with newer materials. The rules change completely for items created and published after 1963.

The copyright on a photo published on or after 1 January 1964 won’t expire until — at the earliest — 95 years after it was published.10 Since copyrights run to 31 December of the year they’re due to expire, that means the very first time you’d be able to use that photo from 1 January 1964 would be 1 December 2060. And for a photo published 31 December 1977, you couldn’t use it until 1 January 2073.

So yes. And it depends. But probably not. Except for the new stuff.

Clear?


 
SOURCES

  1. AP’s History,” The Associated Press (http://www.ap.org : accessed 16 Jan 2013).
  2. Ibid.
  3. Wikipedia (http://www.wikipedia.com), “Reuters,” rev. 4 Jan 2013.
  4. UPI History,” United Press International (http://www.upi.com/ : accessed 16 Jan 2013).
  5. See generally 17 U.S.C. § 103. See also “What is Required for a Compilation to be Eligible for Copyright?”, PDDOC.com (http://www.pddoc.com : accessed 16 Jan 2013.
  6. Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Information Center (http://www.copyright.cornell.edu/ : accessed 16 Jan 2013).
  7. See U.S. Copyright Office, “Definitions” (http://www.copyright.gov : accessed 16 Jan 2013).
  8. Ibid.
  9. United Press International Photographs: Rights and Restrictions Information,” Prints and Photographs Division, Library of Congress (http://www.loc.gov : accessed 16 Jan 2013). Also, ibid., “AP/Wide World : Rights and Restrictions Information.”
  10. U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at p. 1 (http://www.copyright.gov : accessed 16 Jan 2013).
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4 Responses to Copyright and the wire photo

  1. Bob says:

    Suppose the 1942 article including the Titanic photo was somehow still protected by copyright, is the photo itself, which is obviously from before 1923, not protected if extracted from the article? I guess I’m asking does the copyright protection of a news article cover a non-protected photo?

    • Judy G. Russell says:

      If the second publication includes material no longer protected, that second publication’s copyright does not renew-restore-create a copyright in the material where the copyright is already expired.

  2. Peter Hirtle says:

    This is an excellent response, but I would suggest two small corrections.

    First, you wrote “between 1923 and 1963, [for] a published item like a photo had to have a copyright notice, the copyright had to be registered with the U.S. Copyright Office, and — for protection to still exist today — the registration would have had to have been renewed.”

    You are right about the notice and renewal, but registration was not a requirement for copyright protection. In Washingtonian Pub. Co. v Pearson (306 US 30), the Supreme Court quoted the 1909 Act and reiterated that registration (and subsequent deposit) were not required to secure copyright:

    “Any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act [§ 18]; . . .”

    And respondents rightly say “[i]t is no longer necessary to deposit anything to secure a copyright of a published work, but only to publish with the notice of copyright.”

    Second, you write “The copyright on a photo published on or after 1 January 1964 won’t expire until — at the earliest — 95 years after it was published.” that is true only if the photograph was published with notice. Starting in 1964, the renewal requirement was abolished, but the notice requirement was not abolished until 1 March 1989.

    Lastly, there might be another problem with a news photograph of the Titanic. If the photo was taken in Ireland or England by a photographer domiciled there, it might be subject to copyright restoration if it was first published abroad and was not published in the US within 30 days. So as you say, “it depends.”

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