Copyright Issues: Photographs

Around the first of the year, Jewelgirl left the following comment:

I would really love to hear your ideas about old photographs and who owns them. I find it hard to think that a 100 year old photo is owned by a 130 year old photographer. And I need a signature from the dead person so I can copy the photo for my family history album for a family member. The new law drives me crazy........ what do you think?

And I promised that I would blog about that issue fairly soon. But time caught up with me and here I am halfway through February just now getting around to it. But, Jewelgirl, there's good news.

How do you deal with that 100 year old photograph? Photos can be tricky because copyright information isn't always easily available for images. Here are some general rules.

A threshold question to ask first is whether the photograph is a work of the United States government? Works of the United States government are not eligible for copyright protection. Be careful here however. The fact that a photograph appears in a government publication or on a government web site does not necessarily mean that it--the photograph--is a work of the United States government. Be aware furthermore, that the rule that works of the US government are not eligible for copyright protection does not apply to state governments.

Next you need to know whether the photograph was published or not. While the term "published" is not explicitly defined in the copyright law before 1976, the 1976 Copyright Act defined publication as follows:

"'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication." The authorization of the creator is required for an item to be considered published.

The term "unpublished" refers to material which has not been published, or which was distributed without the authorization of the creator or copyright holder.

• Works published or registered in the U.S. before 1923 are now in the public domain.

According to the Copyright Act of 1976, works registered for copyright or published with a copyright notice were protected for a maximum of 75 years of copyright protection, assuming the copyrights on the works were renewed (28 years first term plus 47 for the second, if renewed). Public Law 105-298 enacted in October 1998 increased the maximum to 95 years [28 years first term and 67 for the second, if renewed]. Before 1998 the longest amount of time a work could be protected was 75 years, so works before 1923 were no longer protected (1998 minus 75 years equals 1923). When the law changed, the 1923 date was ‘frozen” and will remain so until 2018 [2018 minus 95 equals 1923]. Starting in 2018 the date that works are no longer protected will again change yearly, being calculated as the current year minus 95 years.

• Works published with notice or registered in the U.S. from and including 1923 through 1963 are now in the public domain unless the copyright was renewed, in which case they are protected for 95 years from the copyright or publication date. A copyright search is required to establish if the item was copyrighted and that the copyright was renewed.
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• Works published with notice or registered between January 1, 1964 and December 31, 1977 are protected for 95 years.
  

In some interpretations the fact that no copyright notice is found on the item that was published from 1923 through 1977, means that the item has passed into the public domain. The pre-1978 copyright law required that a copyright notice be placed on a work as way to alert potential users that permission was needed. The criterion of the copyright notice is easy enough to apply to books, but a bit tricky with images, since the original work may have had a copyright notice which was not reproduced on subsequent copies or the copyright may have been on the work in which the image appeared, rather than on the image itself. The U.S. Copyright Office states that "Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published before that date could result in the loss of copyright protection if corrective steps are not taken within a certain amount of time.”

If it appears that the photograph is unpublished, the U.S. Copyright Office offers the following guidance:

• Works created before January 1, 1978 but not published or registered by that date are protected by copyright law for the life of the creator plus 70 years.

• Works created on or after Jan. 1, 1978 are protected for the creator's life plus 70 years.

Works Made "For Hire" or Anonymous or Pseudonymous Work

A work made for someone else is a "work for hire". Works for hire may be protected by copyright by the employer, not the employee. The duration of copyright for works for hire and for anonymous and pseudonymous works is 95 years from publication or 120 years from creation, whichever is shorter.

To get a "simple" view of these rules, see this chart, produced by Cornell University.

Orphan Works

"Orphan works" are works where it is difficult because of insufficient information to determine rights. In these cases you may have to determine a course of risk management. Consider what you know about when and why the image was created, what you plan to use the image for, and then assess the risk of using it for that purpose. "risk management" might consist of the following:

• Consider whether the image has been published by other researchers. Repeated publication without a rights holder making a claim may lessen the liability of users.

• Request a copyright search, even if you have little information to go on. The paperwork from the Copyright Office could show your good faith effort to establish the rights status of the image.

• Record the type of searching you have done and what you did or didn't find, so you can demonstrate you used due diligence in searching for the rights holder.

Now it is possible that a hundred year old photograph could still be subject to copyright. But it's unlikely you'd have to dig up the 130 year-old photographer. Remember that a copyright is property which can be treated just like any other property; which is to saying sold or devised by will or otherwise transferred. so if that 100 year old photograph is subject to copyright, the copyright is likely held by someone other than the original creator.

Sources:

U.S. Copyright Office web site

Library of Congress Prints & Photographs Reading Room

Scott Tambert, How to Use Images Legally