… of a copyright, that is …
Copyright in the United States doesn’t last forever.
It just seems to.
And it doesn’t help that the expiration is, by the way the law is written, often not a simple matter.
The only really clear drop-dead date under current U.S. law is calculated from the date something was published: as of 1 January 2022, everything lawfully published in the United States before 1927 is now in the public domain because copyright has expired.1
For everything else and specifically for unpublished materials, it’s not quite so easy: copyright on unpublished materials lasts for 70 years after the death of the creator. So two photographs taken of the same thing on the same day by two different photographers can have very different expiration dates, based on their two different death dates.
Which creates a particularly difficult problem when the creator’s identity isn’t known or current whereabouts can’t be determined. Then the work may be what the law calls an orphan work: one that’s still under copyright but we don’t know or can’t find who to ask for permission to use it.2
So does that mean we can’t ever use something when we don’t know who the creator of the work was or we don’t know when that person died?
That’s what was driving the question that came in from reader Shawn Neves, who wondered whether the medium of a photograph could be “used to overcome the ambiguity of copyright ownership” of an unidentified photo.
“For example,” he wrote, “a dated daguerreotype that identifies a sitter, but not the studio/photographer. Is it safe to say that the 170 year old image has entered the domain due to the generally accepted range of daguerreotypes? What about say a (carte de visite) with a dated printed backmark of 1901. Can I assume that in spite of the unknown identity of original photographer and (intellectual property rights) holder we have elapsed 120 years from production and thus copyrights have expired?”
Great question, and one that brings up a concept we encounter a lot in copyright analysis: risk analysis — and risk tolerance.
In general — and here The Legal Genealogist is speaking only individually and not as legal advice here3 — those are pretty safe assumptions.
They’re certainly part of my own personal way of thinking about older images.
In the first case, for example, we know that the daguerreotype was widely used in the 1840s and 1850s but that method was largely replaced as a photographic medium by the early 1860s.4 Add in the fact that we know the identity of the person photographed here and have a date for the image, and we’ve got a pretty good basis for concluding that the photographer would have died more than 70 years ago.
In the second case, we also have a date of 1901 for the creation of the carte de visite. Personally, I’d assume that the photographer would have been an adult, and so at least 21 in 1901, giving a birth year of not later than 1880. Chances are pretty good that that unknown photographer would not have lived past 1952, the key date for copyright purposes as of this year of 2022.
And we can add in the fact that, in both cases, back that far in time, copyright might very well have been acquired by the person photographed and not the photographer, and we’d be able to factor in what we know about when that person died.
So, yes, we can consider all of these elements and make assumptions and make decisions based on those assumptions.
But in neither case do we have an absolute guarantee.
Which means we’re taking risks.
Either the daguerreotype or the carte de visite may have been published well after the original was created. That can move the copyright expiration goalposts to a much later time.5 Or we could be wrong about the lifespan of the carte de visite photographer — he or she may have lived to be 100.
We do a risk-benefit analysis:
• What are the realistic chances that this item is still protected by copyright?
• What are the realistic chances that the copyright holder will object to our use of this item?
• What are the realistic chances that any copyright holder who objects to our use of this item will sue us rather than just ask for appropriate credit?
And — perhaps the hardest question of all:
• How comfortable are we with taking the risk that the item is protected, the copyright holder will object, we will be sued, and we will have to pay damages?
There isn’t any “right answer” to that question. Just as some folks go ziplining or jump out of perfectly good airplanes while others think long and hard before using a stepladder, or just as some invest in cryptocurrencies while others invest only in municipal bonds, each of us has a difference risk tolerance.
And that’s okay.
Just be aware of the rules, be aware that we are making assumptions whenever the facts aren’t fully known as is the case with orphan works, and be aware that there can be risks whenever we make assumptions.
And then we apply our own individual risk tolerance to those risks.
Cite/link to this post: Judy G. Russell, “The risks of orphan status,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 17 Feb 2022).
Image: “President Taylor and his cabinet,” daguerreotype, Francis D’Avignon, 1849; Library of Congress Prints & Photographs Division.
- Judy G. Russell, “Welcome to 1926!,” The Legal Genealogist, posted 3 Jan 2022 (https://www.legalgenealogist.com/blog : accessed 17 Feb 2022). ↩
- See generally Report on Orphan Works: A Report of the Register of Copyrights, January 2006 (Washington, D.C. : US Copyright Office, 2006); PDF online, Copyright.gov (https://www.copyright.gov/ : accessed 17 Feb 2022). ↩
- See Judy G. Russell, “Rules of my road: 2022,” The Legal Genealogist, posted 4 Jan 2022 (https://www.legalgenealogist.com/blog : accessed 17 Feb 2022). ↩
- See generally Wikipedia (https://www.wikipedia.com), “Daguerreotype,” rev. 11 Jan 2022. ↩
- See “Copyright Term and the Public Domain,” Cornell Copyright Center (https://guides.library.cornell.edu/copyright : accessed 17 Feb 2022). ↩