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

Opal Robertson c1900

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

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

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

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

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

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

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

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

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

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

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

How do I know that it hasn’t?

Here’s the story:

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

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

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

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

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

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

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

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

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

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

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

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

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


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