An original question
Reader Phyllis McLaughlin is a collector of old photographs and is struggling to balance her desire to use the photos she buys with the mandates of copyright law.
And discovering, of course, that the balance is always more complicated than we might think.
First, Phyllis is a bit uncertain as to the time period when copyright laws began and when they might impact her collected photos. She’s sure there is some time period when her finds would be free of copyright — but she’s not sure when that might be. Whenever that is, “I have the right to use any before that period any way I want to, right?” she asks.
Second, she notes that she’s recently started collecting glass negatives which, she thinks, may have predated copyright laws. And, she asks, “If I own the negatives, then I own the originals, right?”
Let’s get that question of when copyright laws began out of the way first. Because there really hasn’t been a time in America when we haven’t had copyright laws.
Remember that most of the colonies were English colonies, and followed English law. That meant that a 1710 English law called the Statute of Anne was the rule here as well as in England.1 It only applied to books, and gave the authors “the sole right and liberty of printing such book and books for the term of one and twenty years.”2
Once we became a nation, the United States had its own copyright laws starting with the Constitution itself, which gave Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”3
The first statute passed under that power was the Copyright Act of 1790. It applied to authors of maps, charts and books and provided for protection for a term of 14 years, with one 14-year extension.4 Historical and other prints were added to the statute’s coverage in 1802,5 and photographs were expressly included as of 1865.6
So we’ve always had copyright laws, photographs have been covered for a century and a half… but when does copyright protection end on those photos? What’s the time period for Phyllis where she can be sure that her use of the photos she’s acquiring doesn’t implicate any copyright concerns?
You already know The Legal Genealogist‘s answer. You’ve seen it dozens of times. It’s my favorite answer.
And, unfortunately, American law makes it depend on a whole raft of variables. Was the photograph ever published? Did it carry a copyright notice at a time when one was required? Was it registered at a time when registration was required? Was registration renewed if renewal was required? When did the photographer die?
There’s not enough room in a single blog post to review all the possible variables. Fortunately, we don’t need to. Somebody else has done it for us. Peter B. Hirtle, Senior Policy Advisor to the Cornell University Library, produces an annual chart called Copyright Term and the Public Domain in the United States that goes through all those variables and explains how they impact the copyright status of an item in the United States today.7
It’s updated every year, and it’s even got a downloadable PDF version if you want to keep it on your hard drive for easy access at all times.
And what about the issue of negatives versus prints made from the negatives? Phyllis’ question about whether owning the negatives gave her the rights to make prints from those negatives is a great question. And here we have to remember one key aspect of copyright law:
Owning the thing itself doesn’t mean we own the copyright to the thing.
Owning specific physical items — these negatives in this case — is entirely separate and apart from owning any copyright there may be in the items. The U.S. Copyright Office explains that:
Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.8
I can buy a copy of a book — and then give my copy away, donate it to a library, loan it to a friend. But owning my copy of the book doesn’t give me the right to make more copies and sell them to others. Just because these are photographic images doesn’t change the analysis. The Copyright Office specifically notes on its website that:
In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.9
There’s no question here that Phyllis legally owns the individual copies of the photographs and the photographic negatives that she’s acquired. She can frame them, hang them on her walls, whatever she’d like for her personal use.
And — subject to my usual caveat that I’m commenting generally on the law here and not giving legal advice, and you may want to consult your own attorney, yadda yadda yadda, I personally wouldn’t hesitate to make a positive print from those photographic negatives strictly for my own personal use. I consider that the functional equivalent of making an MP3 from an audio CD I already own.10
Where it gets dicey is when it comes to making more copies, particularly for distribution or republication. Who owns the rights to reprint from negatives can be a major issue,11 as can the question of when copyright expires for such items.
Well, you already know the answer to that, right?
We’re back to it depends.
And back to that lovely chart and all of its variables.
- “An act for the encouragement of learning,” 8 Anne, c. 19 (1710); html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu : accessed 4 Mar 2015). ↩
- Ibid., §II. ↩
- Article I, §8, clause 8, U.S. Constitution. ↩
- “An Act for the encouragement of learning, by securing the copies
of maps, charts, and books, to the authors and proprietors of such copies, during
the times therein mentioned,” 1 Stat. 124 (21 May 1790). ↩
- “An Act supplementary to an act, intituled ‘An Act for the encouragement of learning,…,’” 2 Stat. 171 (29 April 1802). ↩
- “An Act supplemental to an Act entitled ‘An Act to amend the several Acts respecting Copyright…,’” 13 Stat. 540 (3 March 1865). ↩
- Peter B. Hirtle, Copyright Term and the Public Domain in the United States, Cornell Copyright Information Center (https://copyright.cornell.edu/ : accessed 3 Mar 2015). ↩
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 3 Mar 2015). ↩
- U.S. Copyright Office, “FAQs: Can I Use Someone Else’s Work? Can Someone Else Use Mine?” (http://www.copyright.gov : accessed 3 Mar 2015). ↩
- The law isn’t 100% clear on whether this format-shifting is a fair use, but the federal court in RIAA v. Diamond Multimedia, 180 F.3d 1072 (9th Cir. 1999), said it wasn’t a copyright violation, and that’s good enough for me in my own decision-making. ↩
- This is the issue that’s being litigated right now in the case of the work of 20th century photographer Vivian Maier. See Randy Kennedy, “The Heir’s Not Apparent: A Legal Battle Over Vivian Maier’s Work,” New York Times, posted 5 Sep 2014 (http://www.nytimes.com/ : accessed 3 Mar 2015). ↩