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:
| DATE OF WORK | PROTECTED FROM | TERM |
| 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…
SOURCES
- 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. ↩
- 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, Ancestry.com (http://www.ancestry.com : accessed 5 Mar 2012 2012); citing National Archive microfilm publication T623, roll 1679. ↩
- 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, Ancestry.com (http://www.ancestry.com : 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… ↩
- 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. ↩
- 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” (http://www.copyright.gov/help/faq/faq-definitions.html : accessed 5 Mar 2012). ↩
- Ibid., “Fair Use” (http://www.copyright.gov/fls/fl102.html : accessed 5 Mar 2012). I’ll get to fair use in a future post. ↩
- 17 U.S.C. § 101. ↩
- Ibid. ↩
- Texas Department of Health, Certificate of Death, state file no. 92069, Frank J. Schlueter (1972); Bureau of Vital Statistics, Austin. ↩
- 17 U.S.C. § 202(d)(1). ↩
Very helpful post! Thanks! Just go to show photographs copyright can be complicated too.
Every bit of copyright law is complicated, darn it!
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!
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.
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.
Celia,
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!
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.
Sorry to return to such an old comment, but as I work as a copyright consultant in the UK and this comment clearly relates to UK copyright I thought I might just add to Judy’s points. Judy’s statement “the rules are pretty close to the same” is actually not the case when it comes to old photographs made in the UK. This is for two reasons. Firstly section 21 of the UK’s Copyright Act 1911 granted all photographs, whether published or not, a fixed term of protection of 50 years from the date the photograph was made. This arrangement for existing photographs was not upset by the later 1956 Copyright Act, nor indeed by the 1988 Copyright Designs and Patents Act. What did throw a spanner/wrench in the works was the EU Copyright Term Directive of 1995 which said that any photograph (or any other type of work) which was still in copyright on 5 July 1995 would henceforward be subject to the lifetime of the author plus 70 years rule which Judy has outlined. That means that any photograph taken in the UK before 1st January 1945 is now out of copyright.
The second difference is that under the same 1911 Copyright Act, where any photographic or painted portrait was commissioned by an individual, that person became the first owner of the copyright and not the photographer, unless some explicit written arrangement to the contrary was agreed at the time the commission was accepted. Thus in the case of the Barrow-in-Furness portraits I would strongly suspect the copyright was owned by a family member, such as the father, who paid for the sitting. In addition to the normal rules of inheritance which Judy has mentioned, UK copyright law explicitly states that if a physical item subject to copyright (like a diary , manuscript or photograph etc) is bequeathed to someone, the copyright in that item automatically passes with the bequest, unless the will of the author states otherwise.
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!
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.
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 ?
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.
You scare me.
Bummer, isn’t it?
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!
Marian
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.
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.
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.
Why would you have the need from keeping people from seeing it?
I can’t speak for Marian, but one reason why many of us want to restrict usage is to use the item as an incentive to get other cousins to share with us. If I have photo A, I can use it to entice someone else to share photo B. That’s not always an easy thing if you don’t have some exclusivity.
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!
And done!
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!
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.
Thank you, Thank you… I have been after supposedly cousins on ancestry.com 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
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.
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.
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.
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!
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.
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.
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!!!
(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.
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.)
I rarely worry about defamation when I’m bantering with close kin. After all, truth is an absolute defense, y’know…
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?
Thanks
(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.
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.
Glad to help, Bernice. The issues are so much more complex than just who has a copy of the picture, aren’t they?
Thank you for this article I found it more than helpful and interesting .
Thanks for the kind words!
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.
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.
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.
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.
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.
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.
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.)
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 ancestry.com 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.
A good dose of common courtesy would be a very good thing for all of us!
right on !!
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!
Thanks.
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.
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
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.
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?
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.
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,
Susan
(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.
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?
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.
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?
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.
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.
(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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
Correct. Copyright passes like any other property right, either by will or intestacy, in the United States. Complicated? You betcha.
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.
That’s certainly one of the consequences of the unpublished status!
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?
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.
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!
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.)
Hey Alexis. I do the same thing. I have scanned over 60,000 slides collected from yard and estate sales etc. What I will tell you is not a legal statement but a practical statement. if you possess the only copy of the transparency, it seems that it would be very hard for someone to prove that they were the original photographer and owner of the copyrights (regardless of the changes you made to the images). How in the world would someone be able to prove that? Oh but beware of recognizable people in the pics. That is a whole other kettle of fish. I’ve heard ancestors will sometimes sue not for the ownership of the photo itself but for the use of the relative’s image. I have no idea what standing they have in that, but lawsuits are costly when you are on the receiving end, even when you are right.
Not to mention the minor little issue of just being in the wrong if you’re violating someone else’s copyright, whether they can prove it or not.
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!
It’d be terrific to hear what your lawyer has to say, Alexis. Good luck — it sounds like a wonderful project.
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.
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.
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…
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.
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.
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.
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?
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.
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.
“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?
But for the very old photos, how can we even know who to ask for permission?
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.
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.
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?
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.
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..
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.
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.
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.
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.
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.
I was talking abt this with someone tonight, My mother had many photos she took, just snap shots made with a little Kodak. Not professional studio photos. She left things in a will to be divide between my siblings and I. I was told they are copy righted and since they were my my mother’s, I do not own them. It must be 70 yrs after she has been dead. Is this correct?
thank you for your input.
If your mother’s will left everything share-and-share-alike to you and your siblings, you all jointly own the copyright.
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
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?
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.
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!!
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?
Model releases are not required in most non-commercial circumstances.
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.
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.
Thank you so much Judy for sharing your wisdom.
Glad I could help (and remember: I never give legal advice on the blog — just sharing what I would do in your shoes).
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.
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.
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.
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.
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?
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.
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?
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).
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.
Sounds like you’ve certainly done everything you can, Dennis. Good luck with the book!
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
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.
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.
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.
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.
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?
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.
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.
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.
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?
He would register the copyright today. No matter what he does (publish or not) the copyright will end 70 years after his death.
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 Ancestry.com and I don’t even have to be a member.
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.
Found this to be a very interesting site with a lot of good information and people sharing their view’s. I have found on Ancestry.com 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.
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.
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.
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?
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.
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.
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.
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
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?
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.)
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
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.
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 .
If (a) the photographer died more than 70 years ago or (b) you own the copyrights by inheritance or gift, then sure. Go ahead.
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?
Because I don’t give legal advice (see Rules of my road: 2015), what you can — and should — do is consult with a lawyer in your jurisdiction about the options.
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.
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.
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!
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.
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!
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.
Oh, heck! We’re all going to jail! See you guys there! I want the top bunk!
Nah… there are some groups even the jailers don’t want to deal with — can you imagine bunks full of genealogists???
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.
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.
Thanks Judy!
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?
Pretty much (on originality grounds, if nothing else). And if the photograph died more than 70 years ago, not even a prayer.
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!
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.
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…
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.
That may be a permitted use. See Peter Hirtle’s “Digital Preservation and Copyright” post from 2003 here.
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?
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.
Yes, the image was published–so does that mean the image is out of the legal control of the physical owner?
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.
I think I ought to have added that the image was published in a book, not on the Internet.
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?
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.
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.
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.
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?
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.
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.
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.
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,
Wendy
As per the Copyright Term and the Public Domain in the United States chart by Peter Hirtle, an item created before 1978 but first published between 1 March 1989 and 31 December 2002 is copyright protected until 31 December 2047.
Thank you, Judy. That’s what I thought, but I wanted to make sure.
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.)
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.
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
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.
Thank you for the reply I will look into the “hold harmless” clause. So pleased with the prospect of continuing with my plans
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?
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.
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
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.
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?
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.
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.
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.
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
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.
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)?
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).
Thank you for this very information article. I apologize if I ask a question that has already been asked. I want to be honest and law abiding, and at the same time share the images I have received with distant cousins who would love to see them. I have a number of photos that are clearly on professional photographers paperboard including the name of the organization that took the picture. Many of them are from the late 1800s, but some are from the early 1900s. Most of these organizations are out of business, as I have searched for them. How do I request and obtain permission (hopefully) from the copyright owner who has been deceased for some time? Do I need to track down their descendants (estate) for approval? Thanks for the discussion.
Ken
The first question is whether the image is copyrighted. You may need to do some research in the law of the time and even state law, since it may well be that if the person photographed hired the photographed to do the portrait, then it’s the person photographed who owned the copyright *(under the 1906 act), and not the photographer. If it’s still copyrighted, then unless you can find their successor in interest (whether that’s a business or an individual), you can only use the image if it qualifies as fair use.
Hi, You may have answered this a dozen times but I can’t find a definitive answer in the comments section so I’ll ask. If I purchase a photo at a thrift store that appears to be say about 1900 and there is no photographer identification information. How can I know the status of any copyright? Or if a copyright is even in effect? I understand protecting a photographers work even if it is Uncle Joe and his Polaroid but if the photographer doesn’t give any identifying information how can we possibly honor the copyright. We don’t know who, when or what we are trying to protect.
Thank you, again I apologize if you’ve answered this same question over and over.
Unfortunately, the fact that the copyright holder may be hard (or impossible) to identify isn’t a defense to copyright infringement. The problem of orphan works is totally unresolved even though the Copyright Office begged Congress for a solution years ago.
I have a picture that hung I
In my great grandparents home over 100 years ago. My 97 year old uncle states he recalls this picture in their home back then. In the bottom right corner it says copyright. How do I find out something about this picture or if there is any value?
The question of its value isn’t something that relates to its copyright status per se so I can’t help you with that. (You might check someone who is an expert in valuing old photos or paintings.) As far as copyright status, you would need to know the identity of the picture-creator (painter or photographer) and his or her date of death.
HI!
I know this is an old post of yours but I am reading it for the first time and I have a question.
I have many CDVs & Cabinet Cards that were taken in France.
Do these copyright laws only apply to the US?
No, copyright law is international in scope.
I came across an original/unique photo of two infamous men. Both are alive today and are in prison. The photo was taken between 1967 and 1968. Amazing piece of unhappy history. I haven’t a clue who may have taken the photo. The photo is strangely captivating. Can I legally sell it? Thanks
You can always sell, give away, dispose of, the copy of the photo you have. What you can’t do is sell more than what you own, so since you don’t know who took the photo you almost undoubtedly don’t own the copyright, but only the right to sell the single image you have.
I have a question. My uncle owns several old photographs of family members. It has been very difficult to get him to share. Once we did, he claimed that HE owns copyrights of the photographs. The oldest picture is an ancestor who appears to be no older 40 (born in 1838 and died in 1889).
Obviously, my uncle was not the photographer. He is a heavy research of our family history (which is probably how he acquired the photos). But, to date, he has not published anything that would use the photos. I doubt my uncle even knows who the original photographer was so he wasn’t able to purchase copyright from that person.
Is my uncle able to claim copyright of these photos?
Not likely. Copyright belongs only to the original creator or, for 70 years after the creator’s death, to the creator’s heirs. So unless your uncle is the legal heir of the original creator, and the original creator died within the last 70 years, no.
Great article. Even though I knew much of this, you expanded my knowledge. I’d like your opinion. My grandfather shot hundreds of hours of 8mm movies of his family, most before I was born and I’m 52. The movies were shot in the 40s, 50s and 60s. My grandfather passed away in 1987. The movies sat in my grandmother’s house until she died in 2011. My mother, their daughter, said she was throwing the movies out unless I wanted them. So I have the movies. So am I now the legal copyright owner?
Probably not. The copyright would have passed to your grandfather’s heirs, either through his will if he had one or by the laws of intestacy if he didn’t. That is likely to have been, first, your grandmother and then your mother and her siblings (or their heirs or representatives).
Since my mother gave me the home movies, I just need a legal document showing that the home movies ownership is passed to me? If I am correct, what sort of legal document would that be?
No, you’re conflating ownership of the item with ownership of the copyright. You need to begin by determining who owned the copyright on your grandfather’s death. Did he leave a will? If so, did he mention his copyrights? (Most people don’t.) If not, but he did have a will, look for a clause that lawyers call the residuary clause (“all the rest and residue of my estate”). Who got that? If that person or entity is still around, that’s who owns the copyright. If not, then you have to track it forward again. If he didn’t have a will, then who were his heirs? You’ll have to track them forward in time — and there may very well be more heirs than just your mother if she had siblings.
So, for example, let’s say my grandfather’s will had a will with a residuary clause. And, upon his death, that would pass to my grandmother with a residuary clause. The residuary clause in my grandmothers will would pass to my mother (still alive). How can my mother legally give/grant me copyright of the home movies?
Assuming the residuary clause in your grandfather’s will left everything to your grandmother AND assuming that the residuary clause in your grandmother’s will left everything to your mother, then (and only then) could your mother legally give you the copyright, and it has to be done in writing and in accordance with the statute. The law can be found online at http://www.copyright.gov/title17/92chap2.html; for specific legal advice, you need to consult with an attorney licensed in your jurisdiction.
Thank you for the details – this gives me a direction to proceed in.
Ok, I have a collection of slides from 1940 that I purchased at a garage sale that were never published nor copyrighted and the photographer died in 1942. The images are not mentioned in his probate recordsbut a sister was given “the remainder of the property, both real and personal.”
If I read your chart correctly, the original photographer’s defacto copyright extended 70 years after his death or till 12/31/2002, which ever is greater. That would be the former, or October 5, 2012.
Would I need to see the sister’s will to see if she copyrighted the images and left the property to anyone? If she did not, is the copyright set by the original photographer’s death+ 70 years or hers?
Thanks much,
Mike
And if so, as the owner, can I copyright them to keep others from using them?
The key date for copyright purposes is the life of the creator, not the life of any subsequent copyright owner. But note that if a previously unpublished work was published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047. See 17 USC 303.
thanks for the quick reply. So if none of the work was ever published, then the copyright would be 70 years after the creator’s death, which in this case was 2012. So, could I copyright the work?
No. It’s now in the public domain and belongs to everyone.
Excellent. Thank you very much for the info!
One last question: Can I sell images from the collection that I own even though they are in the public domain?
And just another thank you. This conversation has been very helpful!
That’s the kind of current-law question for which you should get advice from an attorney licensed to practice in your jurisdiction.
I have a question. If I purchase some old black and white photos from the 40’s I can sell or dispose of them if I wish. I just can’t make copies of them. What happens if I take a picture of the picture to list it on Ebay. Is that legal? It seems that these pictures that you take to sell an item on EBay ends up on other sites like Worthpoint. The same concern arises when selling and taking pictures of artwork on EBay. Aren’t you still reproducing the image to list it for sale? Thanks for your help.
Keeping in mind that I can’t, don’t and won’t offer legal advice on issues of current concern, I can tell you that if I had this problem, I would look to see whether I could post only a thumbnail image and then argue fair use. That’s just me, of course. Your mileage may be different and, as always, for issues of current concern folks should always consult with an attorney licensed to practice in their jurisdiction.
Someone may have asked this..
But, what about older photos pre 1935 where the records of ownership are lost. I have some Pre WW2 school photos that lack any kind of markings of a studio or photographer,Pretty sure who took them have since deceased. Not counting the subjects themselves. The more metropolitan the area is the better to find or there is a record, But, in areas of rural or small towns many may came ghost towns..Info for photos that are not marked seem never to be found. Hows the copyright rules work for them?
The problem you describe — where the copyright owner can’t be identified or, if identified, can’t be located — is one known in the aggregate as orphan works. And in the US, it’s a real problem. The Copyright Office asked Congress in 2005 to pass a law setting up a system that would make orphan works available for use. You can guess how much work Congress did on that proposal. Zilch. So we’re still stuck: if a photo is copyright-protected (unpublished, taken by a photographer who hasn’t been dead for more than 70 years, and not a work for hire), there’s no safe way to use it except with permission — and if we can’t find the person to ask for permission, we’re stuck.
If my question was clear I thought I re do it :)For those who professionally restore photographs,
If you are restoring old family photos or school photos that are 30- 80 years old for a paying or potential clients, in what format do you provide the finished product to the customer?
What do you need to watch out for on those 50 + year old photographs taken by an “probably deceased unknown professional or business” that you will never be able to track down because nobody knows who the heck the photog was, or any way whatsoever of tracking them down?
or do you just print/upload them up yourself to deliver to the client or offer it for sale?
Thanks
In order to get an answer to this question that you can rely on, you need to consult with your business attorney — a lawyer licensed to practice in your jurisdiction. This blog cannot and does not offer legal advice about specific legal problems.
Thanks for this informative article. It goes far in proving the veracity of some of Mark Twain’s thoughts on copyright law:
“Whenever a copyright law is to be made or altered, then the idiots assemble.”
“Only one thing is impossible for God: to find any sense in any copyright law on the planet.”
– Mark Twain’s Notebook, 1902-1903
So what should I do if I want to publish a book about my family history and include old family photos and letters? Most of the photos no one has any idea who took them. Most of the “photographers” have passed away now too.
You have three choices: (1) find out who owns the copyright and get permission; (2) make an educated determination that use of the photograph would constitute fair use under the law; or (3) don’t use the photograph.
0.K.,
Here is a question, that may have been answered already.. (couldn’t plow through all 5 years of coonents) sorry…
I have quite a few old 1880s (composition) studio photos of people that were known to my grand or great grand parents. With names or cmments written on the back of them (and some have nothing written.)
But, the people totally inknown to me.. I have thought about posting them on “Dead Fred” or other places. However, alter reading this I am not sure should. Am I liable if I do this?
It’s likely that that particular use of the image would qualify as fair use. But you alone can make that determination; no-one except a lawyer licensed in your jurisdiction can give you legal advice.
I was recently vilified for printing a copy of an old professional photo taken about 1890, but that is not my question. Most of the people in my genealogy group have scanned images of professional photos stored on computers, but still insist I am the only WRONG person as I printed a copy. Truly isn’t any form of reproduction just as wrong? This print is for my own personal use, not to be distributed and clearly not for profit. Thank you.
If — and ONLY if — the image is still copyright-protected, then making any copy could violate the exclusive rights of the copyright owner, whether it’s for personal use or not.
My question to the copyright law is. How does a person find out if the copyright has expired. The reason I ask this question is; I have pictures on my children that was taken by a local photographer. He passed several years ago.
Copyright lasts for the lifetime of the creator plus 70 years. So assuming the photographer died in 2001, the copyright lasts until 2071.
When an author writes a book and uses another authors information or quote, they give credit to the cited works. Does this apply to professional photos? Or should one still seek permission from whomever inherited the photographers’ work?
Giving credit (citing sources) is always required for good genealogical practice. But just citing a source isn’t always enough to avoid copyright infringement. When you use a little snippet from a book in your research, that may be fair use. Using all of someone’s photo wouldn’t be fair use, and just saying where you got it might still land you in copyright hot water. So yes, permission, always, if the photo is still copyright protected.
I belong to Ancestry.com and put quite a few of my family photos on my site and now I find that they are on other people’s sites that have downloaded some part of my family tree. I am glad that Ancestry now shows the original publisher as the owner but during Ancestry’s ups and downs during the past a couple of the trees that I uploaded lost me as the owner they do not have a way to identify me and Ancestry doesn’t want to let me take the old trees down. There are errors in some entries or updates that should be corrected and some photos I want me identified as owner. I am glad I read this information and know that I have to make changes on anything I share publicly and maybe look into a program that will tag my photos as mine requiring the future publications to get permission to remove my tag. Got any ideas?
The only way to ensure that a photo is tagged as yours is to watermark the photo itself.
Hi Judy! My grandmother gave all of the childhood photographs of my father and his siblings, in an album, to a library for an exhibit. This naturally upset him as copies of the photographs were not offered to him and he is unsettled about the album being displayed to strangers. Some of the photos in the album he knows he snapped personally. He and his siblings were never asked for consent or offered release forms by the library or grandmother. Do you think, by pointing out the copyright issues here, he can get his family history back from this library or maybe off display? Do you see any other copyright or privacy issues in this situation? Thank you.
I don’t see any LEGAL issues here; your grandmother was entitled to do anything she wanted with the copies of photographs that she owned, and display of photographs (unless humiliating or incriminating) likely doesn’t implicate any right-to-privacy issues. This isn’t legal advice of course and your father may wish to consult with an attorney licensed to practice in his jurisdiction if he wants legal advice. From an ethical perspective your father may wish to address this with the library.
Loved this older article. At first this sounded like an exact opposite to your article but upon thinking…. because she neither sold, copied or posted these pictures, basically only “showed” to others what was in her possession no laws were broken. Am I correct in my thinking?
I’m not sure I understand the question.
What if you buy a storage unit that has been defaulted that has negatives in it? A storage unit that has been defaulted usually has a saying on the contract that the storage facility gets all rights to what is inside the storage unit. Does this carry to copyright too?
Not likely, but to be certain you should consult with an attorney licensed to practice in your jurisdiction.
I am working on a history of people who were patients at the Delaware State (Mental) Hospital between 1894 and 1920. I have been in contact with relatives/descendants and have their permission to use in my books photographs of the people, which I either found on-line or that they provided. Now I’m confused. How do I know which relatives/descendants own the copyright? Do I have to get permission from every known descendant, or only the person who owns the physical photo? In one photo there are other people, who are identified only by first name, and their relationship to the main person is not known. All very confusing. Likewise, I published a studio photo of a lovely couple from the 1940s in the local newspaper, trying to find their family so I could return the originals. I got no responses (I have other studio photos of their wedding as well). Was it a violation of someone’s copyright to publish the photo in the newspaper???
If you intend to publish your work, you should consult with an attorney licensed to practice in your jurisdiction to ensure that you do not violate copyright. Ownership of a copy of a photo does not necessarily include ownership of the copyright, and the family members of the person in the photo may not be the copyright owners (if, for example, the photo was taken by a studio, the copyright may be owned by the studio).
Thanks, I will be sure to talk to a copyright attorney. But since you have to register a copyright at the time (with proof that you are the creator) in order for it to have legal standing in court, and these photos were taken in the late 1800s and early 1900s, and there isn’t even any way to prove who the people in the photos are, let alone who took the photo, or whether or not they registered a copyright . . . . . . I’ve been reading tons on line about this issue, and apparently the assumption of automatic copyright will not hold up in court, should anyone choose to try to challenge it for an old photo. It’s certainly a complicated issue.
Anything that was legally published in the United States before 1923 is now out of copyright, as is anything created (a photo taken) by a photographer who’s been dead for more than 70 years. Many old studio photos were taken at times and in places where the copyright belonged to the person photographed, rather than the photographer. All that being said, I certainly would err on the side of caution rather than on the “oh well they have to prove it” side. Statutory damages for a single willful “I knew there might be a problem, but didn’t try to find the copyright owner” episode can run as high as $150,000.
Hi,
A question, If I posted old photos in website Ancestry.com. Old Studio pictures from 19th century and early 20th century. Is that illegal then? Since the studios is out of business. I am not sure who is the photographer. Is that mean I shouldn’t post them in Ancestry.com at all?
There’s no one-size-fits-all answer to this. You will have to determine whether these are copyrighted and, if so, whether your use qualifies as fair use.
My ancestor ran a photo gallery and then “sold” the photos to the patrons. Thus per definition of published these sales took place before 1909. And the shorter time frame would apply. Correct? So, for those individuals who have formal photos taken by a photo gallery during this earlier time period you should not be concerned about subsequent amendments to the copyright laws?
You’d want to consult with an attorney licensed to practice in your jurisdiction to be sure of an answer you can rely on.
While there’s lots of good information here, there is one major flaw in the original article. The legal definition of publish does not mean that the photo has to be published in some vehicle like a newspaper, magazine or website. The act of the original photographer in developing the negative and making the print is “publication” in the legal sense of the term. All 19th Century photos (and early 20th Century ones) are in the public domain.
Developing the negative and making the print has never been publication within the legal sense of that term. Certainly not as it’s defined in the current statute (“the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending”) and not in any case under prior law that I’ve ever found. If you have such a case, cite it.
Great article, and I’m glad that you’re still replying to comments 5+ years later!
For me, the most interesting question is whether the ~1900 portrait was “published” under 17 U.S.C. §101 when it was sold.
The statute doesn’t require that copies be sold to the public *at large* (i.e. “general publication”), and I don’t believe that it requires that multiple copies be sold, even though the statute uses the plural “copies.” But, works that exist only in a single copy are not considered to be “published” when they’re sold. So something like a tintype, where the image that’s recorded on the plate is the only copy, and is what’s actually sold to the customer, would *not* be “published” upon sale under §101.
On the other hand, if the image was recorded on a negative, and then a print was made from that negative, I believe that the sale of even a single print to a single customer *would* qualify as publication, placing the ~1900 portrait in the public domain.
Yep, definitions of “published” are difficult and changing over time. But I find it hard to believe a single positive from negative would change the status. I’d like to see a court case saying so.
True, and the more I think about it, the less sure I am.
As an even more basic question – in film photography where a negative is exposed, what is the actual copyrighted “work”? Is it the negative that’s the “work,” and the positive print is a “copy”? Or is it the first positive print that you make that’s the actual “work”? And if that’s the case, then what exactly is the negative?
In short, I’m coming around to your way of thinking that a single print made from a negative may fall under the “works that exist as a single copy” classification, and might not be “published” upon sale under 17 U.S.C. §101.
I’m still trying to find cases that are on point, but I’m having a harder time than I would have expected.
I have hundreds of photographs from my Grandfather (who is deceased). They are in slide format, and are not professional. We inherited them after his wife, my Grandmother, died. So do the slide photos belong to us (the remaining family)? And we have the right to use them as we’d like?
There’s a difference between ownership of the things (the photos) and ownership of the rights. Assuming your grandfather died less than 70 years ago, the photos are still copyrighted and the rights would be owned by who ever was named in his will or whoever his legal heirs are.
What if a photo has nothing on it as to date, location, photographer, studio or anything that identifies who/where/when??? You are guessing as to the year taken by how old the person/s look in the photo but you can tell the photograph is professional. [sorry if this has been answered above, if so I missed the question & answer]
That’s what could be called an orphan work and the fact that you don’t know who took the photo or whether it’s copyrighted doesn’t excuse you from your obligation to try to find out. If you can’t, unfortunately, the US has no system to allow you to use it anyway (some European countries have addressed this by legislation but our Congress in the US has does nothing on this despite repeat requests from the Copyright Office).
Thank you Judy – I had hoped by nothing to identify the photographer, studio, date, location that I would be free & clear. Oh well. I appreciate you responding to my question!
Thank you for this very informative article, and all the questions/answers to date (yes, I read them all!) My question has to do with the local historical society. If it is determined that a photograph is in the public domain, can the historical society make copies to sell to the public? They are a non-profit organization, and such a sale would be for fundraising purposes.
If the image is in fact in the public domain, then anyone can use it in any way for any purpose, including commercial use.
Pardon if this issue has been addressed before (with the many comments I didn’t look through them all). But could the fact that the photographer was hired to take the picture mean the copyright reverts to the original owners? When creative work is done “for hire” (such as illustrations, photographs, or articles for magazines or newspapers), the writer or artist usually does not retain copyright. Instead the copyright is owned by the one who hires the artist. Although commercial photographers of family photos may not (and in my experience do not) sign a document that the work is for hire and they relinquish claim to the copyright, I wonder if that might be implicit in the transaction. Could at least the owners of the photograph make such a claim?
“When creative work is done “for hire” (such as illustrations, photographs, or articles for magazines or newspapers), the writer or artist usually does not retain copyright.” Unfortunately, this is dead wrong as a matter of law. Copyright automatically is retained unless ownership is expressly transferred to the contracting party. When work is “for hire” (unless the person doing the work is an employee within the meaning of the law), copyright stays with the creator unless the contract specifically says that it’s being transferred to the other party. See https://www.copyright.gov/circs/circ09.pdf
And if the original photo is in the public domain (say a tin-type or daguerrotype), then Bridgeman v Corel can come into play, yes? And by that I mean that since the original is in the public domain, you can’t copyright a copy of the original. Is this correct?
That’s correct. You can control access to any copy you have (if, say, you’re a library or archive with the one copy of an image, you can require people to pay a license fee) but you can’t get a new copyright on something where the copyright has expired.
So here’s a question. I seem to remember that there a penalty in the law for claiming copyright where you have none. Lots of people place a copyright on things assuming that because they have a copy of a photo or whatever, that slapping a copyright symbol on it will protect it from being copied. Am I right about the penalty? That may not give a person the right to use things, but it might also make the person with a falsely protected image a little concerned about suing for its use? Or am I opening a bad can of worms?
Federal copyright law imposes a maximum $2500 fine for anyone “who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false.” 17 USC 506(c). That’s the penalty that exists for anyone who removes a copyright notice with intent to defraud. Good luck getting either section enforced.
So what is your take on people who find old photos, post them to Flickr and add a ciopyright notice to them. We can imagine that most of the photos there have copyright notices that are false, because the person posting the photo had no copyright rights to begin with: they just do it to try to prevent others from copying the photos. And even when the person states they are Creative Commons copyright expired, they probably haven;t done the research to know that they are. It seems like the wild west out there. I don;t think I would trust either designation on flickr or other places other than reputable stok houses.
My take is that many people don’t understand copyright, and that all of us who use content need to do our own due diligence.
Ok, but there´s something it´s still unclear to me:
How can a relative of the deceased copyrights-holder (f.eg Photographer) prove his (inherited) ownership of these rights for a picture taken in 1880??!! How does he prove that his predecessor owned the rights to such an old picture? (needed for example, when he wants to fill a lawsuit against me for copyrights infringement)
The proof would be the same as in any inheritance situation, and any lawyer can run you (and the claimant) through what would be required. I would add, of course, that for unpublished materials such as most old photos, the copyright expires 70 years after the death of the photographer. Here we are in 2018, so the materials created by anyone who died before December 31, 1947, are now out of copyright. (See e.g. Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Copyright Information Center, Cornell Law School.) How many people who were taking photos in 1880 were still alive in 1948 or thereafter?
I am the executor of my mother’s estate. I found in a box some amazing photographs taken 1900-1920 by her father who was an amateur photographer and passed away in 1980. I believe some are museum quality. As her executor can I officially file a copyright on the photos before I show them to experts?
If you are the owner of the copyright, then yes you can. But that means proving that (a) your mother was the only possible heir to your grandfather’s copyright (if he left a will, then you have to see what it says about “all the rest and residue” of his estate and if he didn’t leave a will you have to see what the intestate laws of his jurisdiction provide) and (b) you have legal authority to act for your mother’s estate, which is the easy part since you’re executor. But both are needed, and you probably have to file for the estate, not for yourself (unless you’re her only heir).
Thank you so much for your prompt reply.
Professional photos (school and family photos) where the photographer is unknown or can’t be located:
1. can they be scanned for preservation purposes?
2. can they be used in a personal photo book?
1. Yes.
2. It depends. There’s really no better answer. There’s a risk involved and only you can evaluate whether it’s a risk you’re willing to take. These are called “orphan works” and we really really really need a solution in the law (Europe has one, we don’t).
This is my second comment here, and again I appear to be nit-picking at Judy’s efforts to be helpful. My remarks are given in the same vein.
‘Europe’ does not have a solution to orphan works which are specifically photographs; the UK does, but not the EU. I assume that Judy is referring to the EU Orphan Works Directive (2012/28/EU). However Article 1 of this directive limits the scope of the provisions. Only certain institutions such as museums, libraries and archives, and not private individuals, are permitted to make copies of certain kinds of orphan works, following a diligent search. Works within the scope of the directive are: published written works, unpublished written works held by the institution concerned which have been on display to the public, as well as films, audio visual works and phonograms which are similarly held by the relevant institution. The Directive does not apply to artistic or musical works.
The UK alone among the European nations has a working system of orphan works licensing, and the majority of works for which licences have so far been issued are photographic works. Any UK citizen may apply for one of these licences which cover commercial and non-commercial exploitation. They are not exclusive licences and last for 7 years, renewable if necessary.
If there is someone who inherited the copyrights to the image (which would also be the person who could sue for infringement), couldn’t you try to find that person(s) and ask them for permission to use the image (or even a transfer of copyrights to you)?
Absolutely, and that’s the right thing to do. The big problem is when you can’t find the person or there’s no real clue to who owns the copyright today.
Here’s one for you. My Great Great Uncle was a Photographer 1880’s through 1950’s for a living. I inherited all his photo’s and negatives and am thinking about publishing some of the photo’s. Is there a way to copy right these photo’s under our Family name with the Library of Congress? Photography runs in my Family, Me, My Dad, My Grandfather, My Great Great Uncle. Line of inheritance of my Great Great Uncles photo’s is they were passed down to my Dad from his Father and then my Father to me. My Father is still alive (81). I struggle on what to do with all of these pictures, negatives, etc. so they are not lost to time and no one sees as they are great photo’s not only from my Great Great Uncle but my Grandfather as well. Most have never been published from his hobby and I have boxes full (His hobby is a whole other story in itself). My Great Great Uncles photography job was somewhat different from most people. His job was the Photographer for a major Hospital in the San Francisco Bay area. Any thoughts on this you can provide will be great! Best regards, Mike
If (a) your relatives died less than 70 years ago, and (b) none of these materials were ever published at a time when copyright law was different than it is today, and (c) you can prove that you inherited the rights to the images and not just the photos and negatives themselves, you may be able to copyright them. But if what you want to do is preserve them and see that they’re available, why not consider donating them (and the rights to them) to an archive or library that would want them and care for them and get them available to the public? Even the Library of Congress might accept them as a donation.
Hi Judy, Thank you for your quick response. Would having my Father signing a statement stating that I have full rights now help? Or would the rights statement need to have come from his Great Uncle? I do plan on donating some of the photo’s to different museums. Since his hobby pictures cover a wide variety of different subjects. My main concern is how do I protect any of these pictures that I may publish that have never been published? Do I say copyright from the Johnson Family Collection?
Well, I WAS going to create local history photo books that would include old pix and stories from local families, compile them into kind of like a “neighborhood scrapbook” that people could purchase copies of. Repeat – WAS. WAS. This copyright and copying stuff is even more complicated than tax laws. And here I foolishly thought tax laws were the most complicated things there were. Too bad, because a lot of families in my tiny berg (not even a traffic light yet) would have loved to have a compilation. Thank you, however, for this very, very rich source of information, even though I wish the information were different.
You can and should consult with an attorney to see whether there is some way to do this legally.
Thanks, Judy, but I don’t have a lot of faith in attorneys and “copyright” laws – when I was a court reporter, they used to copy our work product (transcripts) right, left, and sideways so they wouldn’t have to pay us for them. And I am guessing they would charge me far more than I would ever make in profit for all my work on the book. I am chalking this little idea up to “death by modern societal complexity.” Thank you, though, for your suggestion.
My great grandfather died in 1935. I have received a negative and original photo of a picture he had taken in 1903. I believe I may be able to market it to a specific group. It has never been published. Copyright has expired. Can I make posters of that photo, market it, sell the posters and protect it from any other use through licensing it? Would I in affect “own/control” the use of that image?
Because I don’t maintain an active law license, I can’t advise you on matters of current legal concern. See generally “Rules of my road: 2018,” posted 4 Jan 2018. You’ll need to consult with an attorney licensed to practice in your jurisdiction. But I would caution that your ownership of this one copy doesn’t mean you could control uses of other copies that might be out there.
Hello Judy,
Thank you for your website, but I contacted my Family attorney and he stated I had nothing to worry about. Yes there’s copyrights but adding them and sharing them with other family members isn’t against copyright laws, it is when you get into selling for profit you have to start worrying about breaking copyright laws.
Your lawyer is probably right that you’re not likely to get sued unless you’re using the material commercially, but I sure hope he didn’t tell you it wasn’t possible. Because that would be a misstatement of the law.
I have a similar question as others but not exactly. When my husbands aunt passed at 99years without a will, my husband was left in charge of her estate. She had no children but estate was divided between his siblings and cousins. When cleaning out her house photos her husband had taken in WWII of places he was, people and airplanes were found. Can we put these into a book? Is a copyright needed?? He was an amateur photographer.
The siblings and cousins are the owners of the photos, and may well be the owners of the copyright. They will need to check into this as a group.
A couple of questions: If I have hard copies of photos of my ancestors and their families, taken at a studio in the late 1800s, does copyright law prohibit me from 1. scanning the photo to have a digital copy for preservation? 2. sharing digital copies of the photos with other descendants of the people in the photo? If so, that’s kind of sad, genealogically speaking! 🙁
Copyright only lasts 70 years after the death of the creator, and in many cases the studios in those photos were under laws that transferred ownership to the person photographed.
I HAVE A QUESTION ABOUT A DRAWING BY VAN GOGH CALLED PESANT WOMAN DIGGING, I KNOW COPYRIGHT CAME TO BE AROUND 1790, I HAVE THIS DRAWING IN THE LOWER LEFT CORNER OF IT IS THE COPYRIGHT STAMP WITH VAN GOGH’S INITIALS, IS THIS ORIGIAL ARTWORK??
I’m certainly not an art scholar, but my guess is no — the original of the drawing “Peasant Woman Digging” is reportedly in the Van Gogh Museum. What you have is likely a reproduction with the rights of the Van Gogh Museum indicated.
OMG. Ms. Russell you must be in line for sainthood answering all of these questions, and multiple times.
The concept of “fair use,” which you unfurled for us to see in your paragraph six (“Copyright and the Old Family Photo”)is the bronze aegis behind which so many of us chose to protect ourselves from the slings and arrows of outrageous finger-pointing and accusation. For goodness sake, with very rare exceptions, we’re not genealogists for the money! We’re scholars, sharing bits and pieces of information. We’re here because we’re family; we share family (when appropriate), and keep hidden what’s polite to keep hidden. We wonder what our old relations would want us to do with their images. We try to do our best. What judge is going to fault a person for publishing ancient family photos? Has there every been a case ever brought to court that addresses scholarly sharing of photos on the internet, for free? My great, great, uncle John LOVED having his photo taken and would, I am certain, consider it an honor to see his image splashed across the internet-world – especially the photo of himself at the beach in his striped “bathing suit.” Where does HIS desires fall into this discussion. I would think we worry this too much, sometimes. “Fair use:” you should write a bit more about this concept, and how the law sees “fair use” when it comes to genealogical research.
Fair use is a tough topic but one I do touch on now and again. Stay tuned.
This is actually incorrect.
If the picture is a Work for Hire (a photo taken at the request and payment of the subject or payee) then the photographer does not own the picture.
Not sure why these falsehoods are being written. Look it up for yourself.
Yes, a work for hire belongs to the person who hired the work. But making it a work for hire is MUCH more complicated than just paying a photographer. Perhaps YOU would care to look it up: “Whether a work is a work made for hire is determined by facts in existence at the time the work is created. There are two situations in which a work made for hire is produced: (1) when the work is created by an employee as part of the employee’s regular duties and (2) when a certain type of work is created as a result of an express written agreement between the creator and a party specially ordering or commissioning the work. When a work is produced under these conditions, the employer or the party ordering or commissioning the work is considered the author and copyright owner.” Works Made for Hire, Circular 30, US Copyright Office.
Judy is correct. Without a formal work for hire agreement with a photographer, you don’t have one. Hiring a wedding photographer and paying them does NOT automatically enter into a work for hire agreement. The photographer still owns the negatives and the rights. And that is someone getting paid to do the photography.
The internet is a dangerous place to get information as anyone with an opinion tends to state it as fact. Readers beware. Read the copyright laws for yourself.
As a parent of two children, I took lots of pictures of them while they were growing up. They are now both adults. Do I need to get a model release signed by them, if I want to use their childhood pictures for commercial use?
You’d certainly be well advised to do it, even if it might not be strictly necessary under the law. Hurt feelings within a family are a lot bigger problem in some cases than legal consequences…
I am so happy and impressed that you are still willing to answer questions! I apologize if I am repeating a question. The thread is so long and dense that I didn’t read all of it. Do you know anything about making an original painting of an old photo? Do the same rules apply for a painting as for a regular copy? What if my painting is impressionistic and isn’t an exact copy? Is that really even a copy? When I paint, I have the photo sitting there in front of me, but I’m not good enough to make a photo realistic painting of it. I usually just capture the pose of the person. Also, the painting is never in color, but my paintings are always in color. Can I legally sell a painting that I made, using an old photo that was posted on pinterest, for example? Thanks so much! Elaine
Remember that this blog DOES NOT GIVE LEGAL ADVICE. So I’m not going to tell you whether something you plan to do is legal or not. That’s a decision you have to make. In making that decision you can and certainly may wish to consult with an attorney licensed to practice in your jurisdiction. If I were doing this, I’d consider things like whether the original photo is still in copyright. If it’s not, there’s never an issue: you’re free to copy it any way you want. If it is, I’d consider whether my use of it would be considered transformative. I’d also consider the issues raised when artist Shepard Fairey did a poster of Barack Obama based on a photo by an AP photographer. The parties settled out of court after the judge told the artist that AP would win the lawsuit.
I meant to say that the original photo is never in color, but my paintings always are. Elaine
Coloring a black and white photo does not give you copyright or use rights to the underlying photo (nor does simply digitizing an existing work). You may own the work done and still be in copyright violation of the original work.
Here’s my problem- I have a photo of my elderly great grandmother who died in 1922. Taken outside her house most likely by a relative who is long gone as well. I use it on ancestry.com Other’s have taken it and used it in their tree because they are related to her as well.
One man who may be distantly related has used it to represent her but with a man listed as her father which could not be. Others have taken DNA test that are related to me as well as her. None match to this alleged father. True her mother was unwed but the allegation disturbs me greatly. I have emailed this man about my feelings and when he did not make changes. I told him I wanted him to no longer wanted him to use the photo. Now he just ignores me. Ideas?
Unless he is using the image in violation of the terms of service (and as long as he links to it, he’s within the terms], there’s nothing you can do except, perhaps, comment on his tree that the father is wrong.
This law needs to be changed. I just found out a picture of my grandfather is being sold for over $400.00 because he played for the Chicago Cubs. I just stumbled into it via Google. SO to get a decent photograph of my grandfather for all of my children and grandchildren it would cost me thousands of dollars. What the heck is wrong with this picture! (no pun intended)
There is no “but it’s my family” exception to the copyright laws — nor to the contract laws. Whoever owns that copy of that photo can sell it for whatever he wants.
Judy, this is tough for me to comprehend but here are my questions. I do some genealogy using ancestry.com and familysearch.com. When I come across say a year-book picture in ancestry, or a headstone or an actual portrait of the deceased that someone else attached to or in Find-a-Grave, or a portrait of an ancestor in say Google, can I copy (or print) these portraits etc and attach them to the applicable ancestor’s person pages in my ancestry or familysearch trees (no money is involved – I am not selling anything)?
You can LINK to any image already on an Ancestry site (Ancestry, Fold3, Find A Grave, etc.) connecting any person in your family tree to that image, but you may not download, edit and reupload as if it was your image and you shouldn’t upload it to any other website without express permission.
I started downloading and saving photos of distant relatives when newspapers, funeral homes sites and other web sites (legacy.com, tributes.com, findagrave.com, etc.) started including photos of the deceased along with the obituaries. Initially I did not plan to publish, but am now working on a family history in which I initially was going to use some of these photos. However, after reading through this post and many of the comments, it looks like I’d be safer to just publish with photos of my immediate family. Do you agree?
With the usual caveat that this is not legal advice, I can tell you I wouldn’t publish a collection of photos where I didn’t know the copyright status of the images.
Came across this site purely by chance and find this very interesting in the context of the legalities of ‘family’ photos on the internet etc. I started using Ancestry a few years ago,became hooked,scanned copied hundreds of old family photos with the view to SHARE ! I put on the site from the photos archives of eg J & S smith because yes I do want it acknowledged they are from me and also it lets others know if they may want to make direct contact.I also have some wonderful photos and nobody knows who they are and I hope that by others putting their photos up I may be able to match them up-a win win scenario! I have had others crop and reload on site my photos-no acknowledgement annoying but it is what it is.A few of my photos have found their way to FamilySearch again no acknowledgement but I looked at the fact I had no time to do it myself.Then I got a bit peeved and decided I wouldn’t upload unless I could do both sites at the same time…result less photos have been uploaded!. So the moral here is,’Do unto others as you would do unto you’ and ‘Credit where credit is due’. I am not interested in having a go at any one legal or otherwise but be respectful and remember someone has gone to the trouble of sharing a photo that you are now able to see.
My aim is to be able to collect as many photos ( old) of family as possible for a personal collection that can be passed down in generations . In the meantime I will upload as many items that I can that relate to family /and not family so others have that memorabilia in their archives. My defence in court-I was just sharing .Having said that any one trying to use my photos or records for commercial gain”Watch out !!!”
It’s hardly fair to think you can defend your own use of / uploading of photos you didn’t take and where copyright might be owned by others as “just sharing” and yet object when others take yours and use them. There’s a reason why the rules need to be the same for everyone.
There is a very cool website called Dead Fred’s Genealogy Photo Archive where he posts old photos and then if someone can identify the people and show a connection, he sends them the actual photo. https://deadfred.com/
I have many photographs of ancestors and their friends, 1880-1905, taken by Robert O. Helson in Menomonie, WI. He died in 1936, meaning the copyright would expire in 2016. About 1896, the business name changed to Helsom & Belair Studio to include his assistant, George Belair. Helson retired about 1914, and the business was renamed Belair Studio. George Belair lived until 1969. Do I need to tract down the businesses legal papers to see if the copyrights were transferred to George Belair? I would like to share these in the public domain as there are no interested family to inherit the album.
Source: https://chippewa.com/dunnconnect/news/local/history/scenes-of-yesteryear-from-sawyer-to-photographer/article_619454c6-9f4a-11e0-941b-001cc4c03286.html
Nope. The operative date is the death date of the creator, not the death date of any person to whom the creator transferred the rights. (Otherwise each generation could simply transfer to the next and copyright would never expire.)
“The Library is unaware of any lawsuits involving the use of its historical images.” That’s really the bottom line. Libraries and Archives very rarely are sued for copyright violations, as long as they exercised “due diligence” in locating the copyright holder. And that applies to the general public, too — the likelihood of being sued for putting an unpublished photo of your grandpa from 1930 on your webpage are quite remote. Say the photographer died in 1950 and didn’t leave his work to an heir in his will — who’s going to sue you for using the image?
The bottom line includes respect for other people’s intellectual property rights. The “who’s going to sue you” question comes way down the line in the analysis after making a diligent and careful effort to ensure that we respect other people’s work.
From all this, I gather that in the UK the copyright of a photo belongs to its owner, whether the photo was taken by the current owner or inherited from a relative. That being so, Ancestry cannot infringe copyright even though their terms and conditions imply that they can. This is because an Act of Parliament is supreme over any other legal claim. Thus far, I have privatized my Ancestry trees so photos and other data do not exist in the public domain. I take it this means Ancestry has no right to take ownership of my photos and data.
You are missing the fact that, by uploading, you are giving the website a license. That is perfectly permissible under copyright law. The website is not claiming ownership; it’s claiming a license to use that you agreed to by uploading pursuant to the terms of service.
Question: A photo is published in a local newspaper, circa 1945, and the newspaper has since gone under. The original photo given to the subject by said newspaper, has been retained by family, kept under wraps and the main subject of the photo intended to utilize this in their unpublished works. Since then the author has passed, but the book copyright has been inherited by a family member who also plans to utilize this photo. It was privately shared (offline, not on Ancestry’s server), and was altered with writing in the effort to retain the unedited original as proof of ownership. However the person it was shared with published it to their public tree, and despite great effort privately and public comment to their tree, has refused to remove it from Ancestry. The issue presents further problem with the new TOS from earlier this month. As copyright owner of the book, published or not, does that give any grounds to have it removed both from the tree (and any tree it was copied to), but also Ancestry’s server?
Clarity is critical here.
(a) Who took the picture?
(b) What book are you referring to? (So far you’ve only mentioned publication of the photo in the newspaper.)
Been reading various posts on your blog for a few hours now, what an awesome find! I look forward to reading regularly here!
I read through the commentary here some and wanted to ask, for my own clarity sake a follow up on orphaned copyright. In general can the medium used in producing the photo overcome the ambiguity of copyright ownership of an unidentified photo. For example a dated daguerreotype that identifies a sitter, but not the studio/photographer. Is it safe to say that the 170 year old image has entered the domain due to the generally accepted range of daguerreotypes? What about say a cdv with a dated printed backmark of 1901. Can I assume that in spite of the unknown identity of original photographer and ip holder we have elapsed 120 years from production and thus copyrights have expired?
Answered in today’s blog.