Photography copyrights

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  • Scenario: A photographer in the early 1900's dies and leaves all her original negatives to her friend and caregiver. The caregiver, who inherited the collection, keeps the entire collection in her closet and never publishes or copyrights any of the photographic images. There were some original prints that were printed mostly in scholarly publications. Some libraries and museums have a select few prints which are available to the public. In the 1970's a private, unrelated (to the caregiver and family) buyer purchases the collection and subsequently copyrights the collection with the stipulation and knowledge that any published photo of the photgrapher cannot copyrighted.

    Question: Does the purchaser/owner of the now copyright collection now have true copyright protection of the unpublished photographs giving full credit to the original photographer? Do libraries have any rights because they somehow were in possession of the prints prior to copyright? Can the owner say to the public "copyright or no copyright, I own those negatives/images and I do not want them scanned or published without my permission?

    The owner's desire is to eventually publish/commercialize the images and give full credit and recognition to the photographer.

    Thank you.
  • Several questions need to be answered here. When were the photographs taken? In what year did the photographer die? By "copyrighting" the collection, I presume you mean registering it with the copyright office; when was that done? All these dates will be important for determining whether a valid copyright still exists in the photos.

    Two of your questions can be answered without further information, however. The possession of a physical embodiment of a protected work does not give the possessor any intellectual property rights; copyright ownership is separate from ownership of the actual prints or negatives. But the possessor of an object can certainly exclude other people from using it or making reproductions.
  • Thanks. KSmith.

    Photos taken 1880-1890's. Photographer died 1917. Purchased 1976 and registered in 1998. How can the possessor of the collection(images) prevent others from using/publishing/making reproduction?

    Many appreciations.
  • I think that this would be covered by section 303 of U.S. copyright law.

    Assuming that your statement above, "registered in 1998," means "published" under section 303, and if the collection was neither copyrighted nor in the public domain before Jan. 1, 1978, and if it was then published prior to Dec 31, 2002, ("registered in 1978"), then it would be protected by copyright until 2047.

    [Note: If, however, the work was not published prior to December 31, 2002, then I believe it would have gone into the public domain on that date (because the author died more than 70 years ago, per section 302).]

    Here's the text of section 303.
    § 303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978
    (a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047.
  • Thanks Ruth. Does "publish" also mean copyright registration (to include images of the collection) with the LOC or does it mean published in entireity in book form avialable to the public? Does public domain include private ownership? As mentioned earlier there were a few select photos published either by the photographer or other authors with persission mostly as part of magazine articles(that I know of). After my ownership in 1976 there were again a select few published as articles and select prints sold for sale.

    Again. Many thanks for your efforts.
  • Regarding "publish" vs. "registration" - I found the following from LOC's Circular 40 Copyright Registration for Works of the Visual Arts. It appears that a collection of photographs can be registered as either "published" or "unpublished," so you'd want to check the registration of this particular collection to see if they published it prior to Dec 31, 2002.

    Here's some relevant text from Circular 40 :

    The copyright law defines “publication” as the distribution of copies of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of persons for purposes of further distribution or public display also constitutes publication. A public display does not of itself constitute publication.

    A work of art that exists in only one copy, such as a painting or statue, is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, for example, through an art dealer, gallery, or auction house. A statue erected in a public place is not necessarily published. When the work is reproduced in multiple copies, such as reproductions of a painting or castings of a statue, the work is published when the reproductions are publicly distributed or offered to a group for further distribution or public display.

    Publication is an important concept in copyright because, among other reasons, whether a work is published or not may affect the number of copies and the type of material that must be deposited when registering the work. In addition, some works published in the United States become subject to mandatory deposit in the Library of Congress. These requirements are explained elsewhere in this circular.


    Unpublished Works

    A group of unpublished works may be registered as a collection if all the following conditions are met.


    The elements of the collection are assembled in an orderly form.

    The combined elements bear a single title identifying the collection as a whole.

    The copyright claimant or claimants for each element in the collection are the same.
    * All the elements are by the same author, or if they are by different authors, at least one author has contributed copyrightable authorship to each element.

    Note: Works registered as an unpublished collection will be listed in the records of the Copyright Office only under the collection title.
    Published Works

    All copyrightable elements that are included in a single unit of publication and in which the copyright claimant is the same may be considered a single work for registration purposes. An example is a game consisting of playing pieces, a game board, and game instructions.
    Group Registration of Published Photographs

    A single registration for a group of published photographs can be made if:


    All the photographs were taken by the same photographer, regardless of whether the author is an individual or an employer for hire.

    All the phonographs were first published in the same calendar year.
    * All the photographs have the same copyright claimant(s).
  • Regarding your question of public domain and private ownership:

    A person who owns a physical collection of photographs can restrict others' access to the physical collection, even if the person does not also own the copyright in the collection.
  • Ruth. Again many appreciations for your efforts. You and the CAN Team provide valuable service to the public. I have read Circular 40 and, the copyright office search record does not say if the collection is published or unpublished only that is a public record and registered with the Copyright Office. The collection clearly complies with the"unpublished"conditions as well as some elements of "published"conditions with the meaning of published being an issue. The entire collection was not published as a book but a number of images from the collection was offered and sold to the general public in 1978-79. All the photos were offered but only a few were of the images were sold. The entire collection of glass plate negatives are privately housed with no access by the public. However, over the years libraries/museums have had select copies that they allow for publication. These libraries are verbally aware of the private ownership. A concern is, that some of the select images that are in the library files can be scanned and "photoshoped" reproducing prints of varies formats(small and large) for sale. How can the legal owner of the collection who has physical possession of the collection prevent "anyone", to include libraries, from excuding the use for commercial publication and reproduction without the owners permission. As an aside, I've read you bio and my daughter may be going to CUA. Again, thanks.
  • The copyright owner (who might be different from the person who has physical possession of the originals) has the exclusive rights in section 106 of reproduction, adaptation, distribution, public performance and public display, subject to Fair Use and other exceptions in sections 107 et seq. of the copyright law. If someone reproduces a copyrighted photograph without permission of the copyright owner, and if that use does not fall under one of the exceptions (like Fair Use 107, Library exemption 108, TEACH Act 110, etc.), then the copyright owner may take legal action against the infringer. This could be in the form of a cease-and-desist letter, a letter requiring royalty payments, filing a lawsuit against the infringer, or other legal action. The copyright owner would need to consult his/her attorney to determine if any legal recourse would be advisable.

    Please note that the above has a lot of "ifs" in it. Some reproductions might not be infringing if the use falls under an exception or if the photograph used is in the public domain.

    Congrats on CUA - hope it works out! :)
  • Ruth, another thanks. I am not sure at this juncture how, but the intent is to eventually leave the collection with a designated library. In addition, would hope that designated libraries would benefit from the commercialism of the collection to possibly include fine art prints. One reason is because of the history of the photographer and another is because I love libraries and have always been appreciative of libraries and particularly librarians who have always been of valuable assistance. Let's hope it works out. Thanks again.
  • I'd like to emphasize that just because you are the owner of the physical works, that does not make you the copyright holder. For the individual images that were published during the artist's lifetime, you are certainly not the copyright holder, as those photos would be in the public domain by now. In those cases, you don't get to limit use and distribution of copies already available to the public in libraries or other collections. You can prohibit access to the original, but that's the extent of the control you have.

    For the previously unpublished photographs, which you subsequently registered with the copyright office, you may hold a valid copyright, but even that seems questionable to me, given the age of the works. Perhaps Kevin will weigh in again with the legal perspective.
  • I still don't think there is enough clear information for a definite answer, but there is now a clearer picture of the questions.

    First, if these photos are considered unpublished, they are in the public domain; copyright expired on Jan. 1, 1980, 70 years after the death of the author. However, if the offer for sale in 1978-1979 qualifies as publication, the photos were taken up in a separate provision of chapter 3 and are in protection through 2047. So a lot depends on whether those sales worked a publication.

    The situation is further complicated by the claim that they were registered in 1998. Who was recognized by the Copyright Office as the owner of the copyright? It is hard to know if acceptance for registration was an indication that the Copyright Office believed the photos did not pass into the public domain in 1980 or that they did not notice and issued a certificate of registration in error.

    The existence of a valid copyright, and the identity of its owner if it exists, is a question that proceeds the application of all the other rules we have discussed. Presumably the holder of the certificate of registration is in the best position to pursue that question. Before any attempt to commercialize these photos is made, I think legal advice (not available in this forum) is necessary to clarify the situation and to sort out the conflicting claims alluded to in Xphias' posts. The one seeking to commercialize can, of course, always ask permission from the named copyright holder, but only specific legal counsel can help resist or assuage claims by the libraries involved or recommend how to proceed if registration was in error.
  • Thanks Molly and Ksmith. Molly your comments are clearly acknowledged and understood by the owner/copyright holder and have been since 1998 as referenced in my original 1/9/08 post. However, technology with respective to reproduction has changed since 1998 which is what prompted the questions to CAN.

    Ksmith, the registration in 1998 was filed after discussuions with legal counsel and, I believe, cautiously reviewed by CO hence the stipulation. 70 years after the death of the author is considerable past 1980. The collection which was offered for sale to the public in 1978-79 is clearly identifed by name and image, as well as the owner of the collection and, referenced in public publications with supporting promotional material and sales agreements. There is also additional supporting information that would support the definitiion of"publication" which Ruth graciously referenced in one of her posts. There will always be questions but thanks to CAN Team and respondents quite a bit of clarity has been achieved at least from my perspective. At this juncture and, before further commercial activity, legal counsel will be sought.

    Again, thanks to the CAN forum, CAN Team and knowledgeable contributing members for your willingness the share knowledge and expertise to educate the interested and concerned public in a confidential forum.

    Best Regards.....
  • What an interesting conversation. I just wanted to add one point. It may already be clear to all, but the wording kind of nagged at me. In determining whether or not the photographs are considered to be published, my understanding is that publication does not just mean publication in a book. They could be considered published if they were made available as prints, post cards, or possibly in other ways as well.
  • Thanks Freya. There are a number of thoughts on what is "published" and does "publish" mean "public record" and does"public record" mean "published." However, no need for this penman to belabor the point.

    Senario 2:( Viewers will have to read previous postings to follow). After acquistion of the collection, the new owner in 1977 pens an article about one of the photos from the collection and references the collection by name. The author(new owner) requests that the proper credits be given to photographer in the by-lines below the photo with ownership acknowlgement to the owner. The article appears in well-read public publication with no by-line credit to photographer, no credit to the writer/author/owner and only a" photo courtesy of" owner. To the owners knowledge this was a rare, if not only, publication of said photo. In 2006, a documentary film maker (who lives in the same area) uses the said photo ( and others by the same photpgrapher)in a film as a key image document with no acknowledements of any kind. The film maker copyrights the film in 2006. Does the owner/copyright holder of said photo(s) have an enfringment issue with film maker?

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