copyright laws

[dipech]

Hi Everyone,

So let's say there's a photo that was taken prior to 1932 or otherwise is in the "public domain" and I then professionally restore or retouch it. Do I not then own the copyright to that photo since I have "created a new image" even though I did not photograph anyone?

Assuming the answer to the above is yes, if I then make a CD of the photo and give it to a customer, am I impliedly then giving him all rights to do with the photo whatever he wants?

Thanks,
Diane

[dipech]

Hi Everyone,

So let's say there's a photo that was taken prior to 1932 or otherwise is in the "public domain" and I then professionally restore or retouch it. Do I not then own the copyright to that photo since I have "created a new image" even though I did not photograph anyone?

Assuming the answer to the above is yes, if I then make a CD of the photo and give it to a customer, am I impliedly then giving him all rights to do with the photo whatever he wants?

Thanks,
Diane

[Kevin Connery]

Diane, your first question isn't completely straightforward, and I know I don't know the detailed answer. But the second question, while also not straightforward, I can answer.

No....and yes.

You can't give your copyright away 'implicitly'. According to the US Copyright Office (check your specific country's laws if not in the USA), copyright transfers have to be in writing.

That, however, is merely the law. If you turn over a restored photograph, without any associated documentation explaining copyright, you may as well consider it 'given away', no matter what the law says--you won't recover anything (unless you register it and are willing to take a client to federal court), and it's a non-trivial hassle.

In other words, the onus is on you to explain it to your clients. Every bleeping time.

[dipech]

Hi Kevin,

Thanks for your reply. I meant to say sell, not just give the CD away to a customer, but it sounds like the result would be the same...

Hmmm, do any of you out there give such copyright documentation to your customers in these situations?

I'd like to hear alot more about the 'No' answer to the first question. Does the law only protect photographers and not also professional retouchers/restorers?? If so, we should protest!

Diane

[Kevin Connery]

I didn't answer the first one. The no-and-yes is for the second question.

Technically, all art is covered: photography, paintings, sketches, songs, novels, etc. There are some precedents regarding retouching, but they're scattered, and inconsistent depending on the specifics of each case. And I'm NOT current with the case law, which is why I said "I dunno" to that part.

[Trimoon]

I've been in the reproduction business for quite a few years now, so I am talking with some experience. I photograph artwork for artists to be reproduced, either by me or by some other print house. The artwork is copyrighted, obviously. Once I photograph it, the image that I create is my work and is copyrighted under the U.S. Copyright Laws. However, the original image still belongs to the artist and I cannot do anything with my image without written permission from the artist. They cannot take the image I created and do anything with it without my WRITTEN permission. Another example is if you have an image of a Rembrandt that is in public domain, you may use the image to create prints for sale. However, if the image you are using was photographed by a photographer, you need his written permission. You cannot simply download an image off the internet and assume it is public domain, because it is a Rembrandt. As for retouching old photos, the image you create is your property under copyright laws. You do not need to register material to the copyright office to receive damages. This is some sort of internet rumor that has been going around for quite some time and is simply not true. However, if you want to register your work, I suggest that you create a CD with a thumbnail of all your work once a month (or whatever intervals you choose) and register that CD. Anything on the CD is covered under the copyright laws, if they are your creation. I have this straight from the copyright office that anything on the CD is officially copyrighted. This is my 2 1/2 cents worth. Remember, I have been doing this for 10 years and my rear has ben covered. Steve

[Jim Conway]

I've posted some info on this before but just for the sake of clarification for some who have joined this forum since - keep in mind that your copyrights are something the OWNER has to enforce. The legal costs alone on the last copyright I took to court were in excess of $70,000. I won my case and a $6,500 award for the 3 yrs it took to get it to trial. Perhaps not worth the effort but the repro houses and volume finishers in this area were stealing a lot of my work and, because the one that did it had to pay the legal costs, the others stopped after that. That "message" is the reason for most suits that are actually filed.

As far as registering is concerned, if I take a pic it's mine - and the copyright is automatic - if I register the copyright I have "enhanced" that ownership. (kinda like a great retouching job!) The difference is in the amount of damages that I can collect. In the first instance, I believe the maximum (unless changed in the new Laws) was around $200. In the second over $100.k

Bottom line is that the legal costs are a far more important consideration than anything else if you want to steal someone's work or protect your own! First step check the hourly rate of your lawyer.

Jim Conway

[winwintoo]

So let's say there's a photo that was taken prior to 1932 or otherwise is in the "public domain"

Just thought I'd jump in to muddy the waters.

The above quote seems to suggest that the author thinks copyright extends for 70 years. Not so. Copyright for works created after 1978 extends for 70 years after the DEATH of the creator.

This Library of congress website explains it quite well.

Margaret

[Kevin Connery]

Jim's interpretation matches mine. When I said you wouldn't recover anything unless you registered it, I meant that the cost of attempting to recover damages would exceed the amount you would receive. If you register, however, legal costs can be awarded, making the violator pay for your having to go to court, reducing the burden on you, albeit only if-and-after you win.

The law is somewhat quirky in that regard. You are "protected" without registering, but the remedies provided for non-registered works are somewhat weak.

[Jakaleena]

Well, I tried out the information I had about contacting the PPA for permission yesterday.

I had a customer come in who was extremely insistant that I copy her professionally shot picture (taken somewhere in the 1970's). When I called the PPA, the woman I spoke with asked me questions like, "is it marked or stamped in any way?" (no) , and "is it an original photo or a copy? (original)"

She then told me it was "probably" safe to copy it and that I "Probably" wouldn't get in trouble if I copied it, but she would not give me absolute permission to copy it. Without absolute permission, I obviously had to refuse to make the copy.

She also was not helpful in suggesting how to locate the photographer to get the permission needed.

So, contacting the PPA doesn't seem to be the answer after all.

[Jim Conway]

Our system - If we have the studio name either from the photo or the mount, we do an online search by name. That is followed by a yellow page search of the state where the photo was made. We also call or e-mail the local historic societies. (We have found that many deceased photographers collections of negatives, particularly those who were in business in small towns for decades, have been donated to a museum that now holds all rights for reproduction.) As was brought up here earlier if the photo was published (a known church directory), we also check that source . Sounds like a lot more work than it is but it's a safe bet that no one can accuse you of not trying!

I don't know how it can be accomplished, but we need something in the law that offers a safe haven from "unregistered copy rights abandonment". If there is any such clause in the law, I haven't found it but would welcome hearing about anything someone may know about it.

Jim Conway

[fotofreak]

I deal with copyright all the time. Some of the views on here are way off and some are on point. I just want to say a couple of things. The person that takes the photo is the copyright holder for that particular photo. That person will always be the copyright holder of that photo. The only exception is if you sell that photo and give the client all rights to the photo. This must be in writing of course and goes without saying. Now if I submit a photo for restoration,unless the is a prior agreement in writing, I am still the copyright holder for that photo. The one doing the restoration has no rights to that photo what so ever. Some have said what is th big deal about getting some prints made at your local Wal Mart. The big deal is lets say that you sell your photos online. You want to make money at this just like any other business. Now someone comes along and copies the photo and goes to their local Wal-Mart to make a print for themselves. You usually charge someone for that particular photo and now this person has just got it for free. How would you feel? Would you say it's ok? Or would you feel like they stole from you? This is a blatant copyright violation and you can be sued in court for thousands of dollars, and believe me the person will win. The only catch is that you must have the particular photo, or group of photos, copyright on file at the US Copyright Office to be able to sue in court. If this is your business then it is a good idea to copyright your work. It only costs a couple of hundred bucks and then you have legal ground to stand on if your copyright has been violated. If you only deal with your own photos, then you will never have any problems concerning violating anyones copyright. The only ones that are usually concerned with violating someones copyright, are the ones that try to take what is not theirs to take. Oh, by the way, if Wal-Mart would have sold those copyrighted photos they would have been liable as well for violating someone copyright.

[Kevin Connery]

The person that takes the photo is the copyright holder for that particular photo. That person will always be the copyright holder of that photo.

99% correct in the USA. 90%+ INcorrect in Canada, the UK, and Australia. It's important to remember that this is not a US-only forum.

[KevinBE]

I thought I would muddy the water even more. Reading the Copyright Basic Circular 1, linked to by Margaret, I interpret that all works that were to be protected by the Copyright laws prior to 1989 were required to have the copyright notice on the work.

Also, "Before 1978, federal copyright was generally secured by the act of publication with notice of copyright, assuming compliance with all other relevant statutory conditions. U. S. works in the public domain on January 1, 1978, (for example, works published without satisfying all conditions for securing federal copyright under the Copyright Act of 1909) remain in the public domain under the 1976 Copyright Act."

In 1978 the works were automatically copyrighted when they were created. Before this date the copyright was obtained only by registering the work with the copyright office.

Does this say that any work created prior to 1978 that doesn't have a registered copyright certificate is in the public domain? How about work created after 1978 and prior to 1989 that doesn't contain a copyright notice? How are your supposed to determine the validity of a work that is old but unmarked?

[jjwalker]

Today I called PPA myself because I like to deal with facts. The PPA told me that photos taken before 1989 that has no name, address, phone number , or symbol of any kind from the photographers is fair game and can be copied. I was told by Walmart just yestreday that i can not copy a photo because of the copy right laws. Even through this picture is 60 years old with no photographers marks on it.