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.
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
- Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991). ↩
- Ibid., at 347. ↩
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2-3 (https://www.copyright.gov : accessed 14 July 2020). ↩
- 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). ↩
- U.S. Copyright Office,Compendium of U.S. Copyright Office Practices, PDF, §404, Copyright.gov (https://www.copyright.gov : accessed 14 July 2020). ↩
- Ibid., §402. ↩
- 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). ↩
In the situation described, I presume that the original photo is and remains in the public domain. If someone improves the image, for example, by providing a visible citation on the image, can the resulting image be copyrighted by the person doing the improvement?
(a) No as to the original photo in the public domain. It may be, but only if the photographer has been dead for more than 70 years. (Copyright for an unpublished photo lasts for the lifetime of the photographer plus 70 years.) And (b) no again. The improvement has to be very substantial and transformative before the new work is considered copyrightable. Adding info to the photo merely allows you to copyright the new info, not the underlying image.
What about a photo that was created by the government? Like, say, an image of a mugshot or an aircraft? Also, if a photo is in the public domain and you digitize it from the original, can’t you claim a copyright in the digital copy as a derivative work?
Nope. It is NOT YOUR WORK. As the Copyright Office says: “The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. … (T)he copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.” (Circular 14, Copyright in Derivative Works and Compilations.)
WOuldn’t a photo (or any work) from 1908 be out of copyright anyway and in public domain? (asking for a friend 🙂 )
Not necessarily. The fact pattern said the photo was unpublished. That means the copyright lasts for the lifetime of the author/creator plus 70 years. Without knowing who took the picture and when he or she died, there’s no way to say it is out of copyright yet.
My sister & I are in possession of diaries (for want of a better term) written by our G grandparents. Both died over 70 years ago (1948 & 1949).
At this point, does it matter that we are not the only possible heirs? Our grandfather had a brother who had descendants whom I know are still living. So we would need permission of any other possible heirs first before possibly publishing the diaries?
Because the authors died more than 70 years ago, there are no longer any copyright protections. Copyright only lasts for the life of the creators plus 70 years. Once that time period has expired, the diaries / paper / writings are in the public domain, and anyone is free to use them without permission.
What about film negatives? If you own them from a family members estate (inheritance), and create the photo from the negative, would this satisfy the requirements to copyright?
Nope. Same issue: you are not the author / creator / photographer. See Copyright and the photo negatives.
Are you saying too for a totally unknown ownership item, I am unable to publish it due to lack of proper ownership citation?
Of course you can publish it — if you’re willing to take the risk of violating the possible copyright of the unknown creator of that work. You and you alone have to decide if the benefit outweighs the risk after carefully considering all factors.
Heck, if it’s limited to actual damages – for worthless old pictures – go ahead and publish. But do statuary damages apply for those old photos? That would make me think twice. Do copyright trolls exist?
Yes and yes. Statutory damages apply for any copyrighted item, and copyright trolls absolutely do exist. The likelihood for an old family photo is pretty small but each individual has to make the risk benefit judgment for himself or herself.
Judy,
I think it worth clarifying that statutory damages only arise if the work has been registered with the Copyright Office, and so if someone is risk averse they should first check to see if the work has been registered. Doing this will have the added benefit of providing details of the original copyright owner, if the work has been registered. However as far as family documents such as photographs, diaries and letters are concerned, it is most unlikely that these will have been registered because there was probably no expectation at the time they were created that they would be published at some later date.
I suggest that if you are the owner of an original work of this type (and not a digital copy of it) then for all practical purposes you are most likely to be the rightful owner of any copyright through the application of the law of inheritance; at the very least your claim to copyright is probably as good as any other family member who may seek to make a claim against you. A troll would face an uphill battle trying to convince a court that their claim to the copyright, absent any copyright registration, was stronger than that of a family member. Given the lack of any intrinsic monetary value in most works of this type, I doubt that a troll would be interested, and neither would a court in hearing such a case. The private papers etc of a famous person from times gone by would be a different matter.
As a quick follow-up to my previous reply on the subject of registration of copyright claims, here is a part of paragraph 718 of the 3rd Edition of the Compendium of Copyright Office Practices*, on the subject of letters, emails and other written correspondence:
“A party that has obtained all of the rights under copyright that initially belonged to the author may be named as the copyright claimant for a letter, email, journal, diary, or other written correspondence. When completing the application, the applicant should provide a brief transfer statement explaining how the claimant obtained the copyright in the work. For example, the registration specialist may accept an application if the applicant states that the claimant obtained the copyright “by inheritance” or “by written agreement,” but the specialist will question an application if the applicant simply states “I found this diary in the attic,” “my mother gave me this journal,” “my boyfriend sent me these love letters,” or the like. These types of statements suggest that the claimant may own a material object (i.e., a journal, a diary, a letter), but it is unclear whether the claimant owns the copyright in the work that is embodied in those objects. ”
*Source: https://www.copyright.gov/comp3/
It is worth noting that the underlying purpose of copyright is not to ‘protect’ the work but to allow the copyright owner to gain an economic benefit from the work if they choose, during the duration of the copyright period. In theory this allows an author to reap the rewards of his/her labor, although it doesn’t always turn out that way. As the US Constitution makes clear, this benefit is granted on the understanding that once copyright has expired, the greater good is served by everyone having access to the work. If you own a family treasure such as an old diary and you want to protect it, don’t publish it. Physical access to a work is a different matter than copyright.
Great information, and appreciate the clarification by AndyJ. But here’s a hypothetical: Billy the boardwalk vendor takes a picture of Granny & Grandpa at Coney Island in 1925. The only print goes to Granny. But Billy keeps the negative in a shoebox, without registration, and he lives to 1980. One of Billy’s entrepreneurial heirs finds the negatives and does an internet search to find any matches (possible?). He registers the negatives (possible?) and then sues you for statutory damages. Will he prevail? What if he didn’t or couldn’t register; would he still prevail for lesser damages?
Not likely. Assuming that under the law at the time the copyright didn’t pass to Granny & Grandpa, the heir would have to register before the infringement if he wants to sue for statutory damages, and would have to register and prove actual damages if the registration is after the infringement.
If I take the old photograph and substantially enhance it, perhaps colourize the old photograph, it will be my work of art. I will have copyright over my new version although the original copyright remains with the photographer. True?
Not exactly. What you’ve created is a derivative work and if the underlying work is copyrighted, you will need the permission of the copyright holder to create the derivative work at all. (The right to create or authorize the creation of derivative works is one of the exclusive rights given to the copyright holder under the law. See 17 U.S. Code § 106.) If the work you’re basing it on is public domain, you ONLY get a copyright in the elements you have added (your color choices, for example). See http://www.pyragraph.com/2017/03/dear-rich-can-i-copyright-colorized-photos-from-public-domain/.
Hello, I am in the process of writing a book. I have a copy of a photo that was shared with my facebook group of which I am the administrator. I no longer have contact with the family member who shared the photo. The photo was taken approx 1902. All in the photo are long deceased as I am sure is the original photographer/creator. Am I able to publish this photo in my book if credit is given stating that the photo was shared on my facebook group and by who?
There’s no way I can answer that question based on that information (and no way I can give legal advice even with more information). What you need to understand is that (a) copyright may still exist in that photo — it can last up to 70 years after the death of the creator, and the photographer may well have lived past 1952); and (b) there is a big difference between giving credit and complying with copyright. See https://www.legalgenealogist.com/2021/08/13/credit-doesnt-cut-it/