… copyrights, that is …

Reader Mindy Jarrett just ran head-first into one of the most common — and yet most perplexing — copyright problems to plague genealogists.

The problem of the difference between ownership of the thing and ownership of the rights to the thing.

“I found an image of one of my ancestors for sale on Ebay (of all places!),” she wrote. “The listing… says that it’s a press photo from 1965, so I assume the photo was given to a local newspaper for an article, and (the listing site) somehow acquired the photo from the newspaper. My question is: Does this site have the right to sell this photo now? ”

And, she noted with some chagrin, she wasn’t entirely certain it was a copyright question at all.

Well, it is and it isn’t. Which — The Legal Genealogist knows — doesn’t help a whole lot, does it?

photo for sale

Let’s back up here a minute and do a quick review.

First and foremost, we need to remember what’s eligible for copyright protection and what isn’t. Copyright law protects “original works of authorship fixed in any tangible medium of expression.”1 That definition doesn’t include “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”2 But it clearly would include a photograph.

Second, we need to understand that the fact that the photograph was acquired by the EBay lister doesn’t have any impact at all on the copyright status of the photograph. That’s because owning specific physical items — that particular photograph, in Mindy’s 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 copy or phonorecord that embodies a work does not give the owner of that copy or phonorecord the ownership of the copyright in the work.”3

And just because this particular item is a photographic image doesn’t change the analysis, though it can complicate things. The U.S. Copyright Office explains on its website:

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.4

So I can buy a copy of a book or a photograph or a painting — and then give my copy away, donate it to a library, loan it to a friend, or sell it to someone else. What I can’t do just because I own this copy is make more copies and distribute them: owning my one copy of the work doesn’t give me the right to make more copies and sell them to others.

All of which means, yes, assuming that the EBay lister legally acquired its copy of that photograph, it too can give it away, donate it or even sell it.

And none of that answers the question of whether anyone who buys it can use the photo for any purpose the buyer wants. That’s still going to be affected by the question of the copyright status of the image itself.

This particular image appears to have been a publicity photograph of a man who, at the time, was an officer in a statewide industry association in Louisiana. It thus appears to have been distributed to the press with the intention that it be used to publicize the man and his association. That would constitute publication under the law,5 subject of course to all of the usual caveats here about nothing in this blog being legal advice yadda-yadda-yadda.6

Works published between 1924 and 1977 without a copyright notice are in the public domain today because that copyright notice was required at the time in order for copyright protection to attach to the work.7

Which means that if Mindy buys this copy, she should be free to use it any way her heart desires — items in the public domain may be used freely, any way we want, for any purpose (with some limits8), without needing permission from or payment to the creator of the work.9

The thing and the rights to the thing… not an easy question, is it?


Cite/link to this post: Judy G. Russell, “The thing and the rights,” The Legal Genealogist, posted 31 Jan 2019 (https://www.legalgenealogist.com/blog : accessed (date)).

SOURCES

  1. 17 U.S.C. § 102(a).
  2. U.S. Copyright Office, “Copyright in General: What does copyright protect?,” Copyright.gov (https://www.copyright.gov : accessed 31 Jan 2019).
  3. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 3 (https://www.copyright.gov : accessed 31 Jan 2019).
  4. U.S. Copyright Office, “FAQs: Can I Use Someone Else’s Work? Can Someone Else Use Mine?,” Copyright.gov (https://www.copyright.gov : accessed 31 Jan 2019).
  5. See Carolyn E. Wright, “Are Photographs Posted On the Internet Published?,” Photo Attorney, posted 2 Sep 2012 (https://www.photoattorney.com/ : accessed 31 Jan 2019).
  6. See generally Judy G. Russell, “Rules of my road: 2019,” The Legal Genealogist, posted 4 Jan 2019 (https://www.legalgenealogist.com/blog : accessed 31 Jan 2019).
  7. Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” updated 2 Jan 2019, Copyright Information Center, Cornell University (https://copyright.cornell.edu/ : accessed 31 Jan 2019).
  8. This is a photo of a relative, mind you. He — if living — and otherwise his close kin probably wouldn’t be amused by the use of the photo to advertise something illegal, immoral or fattening… Just sayin’ …
  9. See generally Judy G. Russell, “Where is the public domain?,” The Legal Genealogist, posted 21 Dec 2015 (https://www.legalgenealogist.com/blog : accessed 31 Jan 2019).
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