Not just a matter of owning the thing

A reader has a great copyright question: “How about a very old photo, from about 1908, that was never published as far as I know, and does not include any info about who the photographer was or who the subjects (several men) were. Can I claim copyright to said photo? Perhaps by filing for copyright and publishing it?”

The Legal Genealogist is sure that lots of us have just this kind of problem: we find or buy or come into possession of an old photo where we have no idea who the photographer is, and we’d like to protect it now by copyrighting it.

copyright old photo

Unfortunately, there’s just one bit enormous problem.

We’re not the author — the creator of the photo.

It’s not our original work.

And we can’t prove we own the exclusive rights to that work.

And that is the fundamental requirement to be able to get a copyright.

The U.S. Supreme Court has made it abundantly clear: “To qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author.”1 This is so critical, the Court said, that originality has been called “the bedrock principle of copyright” and “the very premise of copyright law.”2

Time and again, the U.S. Copyright Office has stressed the same thing:

• It tells us that the “copyright in a work initially belongs to the author(s) who created that work. … 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

• It tells us that if we find something like, say, a diary in our grandmother’s attic, we “can register copyright in the diary only if (we) own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself.”4

• It tells us that the “only parties who are eligible to be the copyright claimant are (i) the author of the work, or (ii) a copyright owner who owns all of the exclusive rights in the work”5 and that “(n)o other parties are entitled to file an application for copyright registration.”6 And that doesn’t include the person who simply owns a copy — even the only copy — of the work.

Now… I realize that leaves old photos like this unprotected, because we don’t know and sometimes can’t find out who owns the rights. The Copyright Office acknowledges the complications with these works:

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.7

But the fact that there’s no easy solution here doesn’t change the answer.

No, we can’t ever copyright someone else’s work just because we own a copy of the work. To register copyright, we have to be the owner of all the rights to that work itself.


Cite/link to this post: Judy G. Russell, “Copyrighting that photo,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 14 July 2020).

SOURCES

  1. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991).
  2. Ibid., at 347.
  3. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2-3 (https://www.copyright.gov : accessed 14 July 2020).
  4. U.S. Copyright Office, “FAQs: Can I register a diary I found in my grandmother’s attic?,” Copyright.gov (https://www.copyright.gov : accessed 14 July 2020).
  5. U.S. Copyright Office,Compendium of U.S. Copyright Office Practices, PDF, §404, Copyright.gov (https://www.copyright.gov : accessed 14 July 2020).
  6. Ibid., §402.
  7. U.S. Copyright Office, “FAQs: Can I Use Someone Else’s Work? Can Someone Else Use Mine?,” Copyright.gov (https://www.copyright.gov : accessed 14 July 2020).
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