A question for those who are familiar with Copyright law (relating to rail photography in this case.)

One purchases an original image. Whether negative or positive, it is the original material that the image was created upon. Does the fact that it is original convey ownership of the image and rights to use it with the original image? Can the "creator" retain rights to the image while selling the original?

My gut feeling is that rights should be automatically conveyed but what does the law say?

In short, yes. But your question is not solely a matter of copyright - you're asking about the intersection of copyright law, property rights law, and contract law.

Under US law, copyright is conferred to a creator automatically upon the creation of a unique work of art. Copyright is an intellectual property right, which is treated as tangible personal property. So transfer of some or all of those rights can be legal. That means the creator can transfer some, but not all, of his interests in a copyrighted work - for example, separating the possession of the work from the reproduction rights to that work.

It's actually quite common. It's analogous to a land owner selling a piece of property but keeping mineral or water rights, or selling the development rights to a trust but keeping the property itself.

Song rights are split up regularly. Reproduction rights to paintings owned by museums are often separated from the painting itself.



http://www.copyright.gov/circs/circ1.html

Some examples:

1.

I shoot a motor drive sequence of a runby, and keep the best three. Each image is separate work of art, with a separate copyright.

I later send one of the three to a friend. Unless I specifically retain the reproduction rights, he is free to do what he wants, including using the image commercially.


2.

I shoot a black and white negative, and make three prints. Each print is a copy of the single original work of art. The copyright rests with the image (the negative), not the copy (the print).

I later send one of the three prints to a friend. The friend may not use the image commercially unless I specifically grant reproduction rights.


3.

I pay Howard Fogg to paint my favorite scene. When I take ownership of the painting, I may use it commercially, unless Howard has retained the reproduction rights.


4. I am an employee of a newspaper, which pays me a salary and provides my cameras, film, and processing. The newspaper owns copyright to any image I make in the course of my duties, and may assign the rights as it chooses.


JAC

The person who purchases the print, negative, or slide owns only that particular image.

To obtain rights of reproduction a "copyright transfer agreement" must be executed and signed by both parties: the person who created the image (or his/her heirs) or the person who owns the rights of reproduction pursuant to a previous "copyright transfer agreement" and the purchaser of the image. Once the purchaser of the image has received the signed "copyright transfer agreement" for the image in question the purchaser may reproduce that image as he/she wishes.

During my many years in publishing tracking the "real" owner of images was, and still is, a tedious process. Before publishing a "borrowed" image we have to be sure that the source the image was alledgedly "borrowed" from was, in fact, the original source. Many times the source cited is, itself, only borrowing the image from another source which may not be the "original" source. -- Ray

Freedom to do whatever one wishes with a purchased copyright is becoming more difficult.

Agreements such as these might now include a waiver of the creator's "moral rights." This is a mainly European concept which has been steadily gaining ground in the US.

Not sure if there are any laws on the books here yet, but as the world grows smaller and smaller, it's something to consider.

Do the same reproduction laws apply in non commercial use? For example, your organization has a collection of images from unknown sources under unknown circumstances. Is it "OK" for your organization to make reproductions of these images for grant applications, presentations, or display use?

My understanding is that because the reproduced image(s) will not be for sale, the organization is able to make a copy. A situation similar to making a cassette tape of my favorite LP. (OK, I'm dating myself with this analogy!) Nonetheless, is my assumption correct?

Ken,
The circumstances you describe sound like they may fall under the "fair use doctrine" of the U.S. copyright law. For example, the LP you purchased years ago and now want to copy onto a (one) cassette for your own use (i.e., not make multiple copies for distribution) would fall under this doctrine. However, "fair use" is very limited. If you were to make several copies of this LP to give to friends and acquaintances, whether or not these copies were given free of charge, would not fall under the "fair use doctrine."

Copying photographic material to incorporate into presentations, reports, displays, etc., needs to be handled on an individual basis. Generally in these situations you will need to at least obtain permission for such use. -- Ray

From one old fort* to another:

Nope. Not any more.

First point, there has never been an exception for "non-commercial use." There has been, and is, an exception for "fair use."

It was always OK to make a cassette copy of an LP FOR YOUR OWN USE. It was never OK to make a cassette copy of an LP to give away, trade, or sell.

And the definition of "fair use" has been restricted more and more by the courts since the mid-70s, when the last sweeping changes of Copyright law were made. That's understandable, really - intellectual property is now a much broader business than it was in the pre-digital world.

Here's a pretty good treatment of Fair Use as it exists today:

http://fairuse.stanford.edu/Copyright_a ... index.html

And, because someone is wondering, here's one on "Public Domain":

http://fairuse.stanford.edu/Copyright_a ... index.html

Bottom line? If there is any doubt as to whether it's OK, it's probably not.

Finally, in my opinion the Golden Rule is a great guide in this area. A railfan is not likely to suffer any monetary damage if his a copy of his favorite photo gets replastered on the Net - but if you suspect he wouldn't want it replastered, it's only right to respect his wishes.

JAC

* an old fort is an old fart that can't spell.

I agree with the points made above re: current copyright law. While I understand the reasoning behind the current law being so restrictive and so detailed, it does create two problems I think many groups in our industry face:

1. What do you do when you have (or in my case, inherit) negatives/slides/films, etc. where the photographer is deceased? Obviously, you can't get a release or other contract signed by the photographer. And, unless the photographer was one of the few such as O. Winston Link that had a professional business, these slides/negatives will have no documentation as to who currently owns the rights, and they won't clearly be assigned to anyone in a contract or a will. Could the copyright status of these items ever be established?

2. Going back 30 to 50 or more years ago, a common practice/belief was that if you purchased the original slide or negative, you owned the copyright to it. Photographers 50 years ago didn't work under the protections they had today, where they automatically owned the copyrignt basically forever from the moment they hit the shutter button. I know I am going to get flamed for saying that, so go ahead, but right or wrong it is the way people acted and believed until the recent past.

So, if your museum owns a nice collection of red-bordered Kodachrome slides, and the photographer passed away in 1970, and your librarian purchased the slides in 1971 from an heir without any documentation re: rights or ownership, what do you do? Can you ever legally publish or sell these images?

Chris J.

Well, dead men own no property, so any valid copyrights transferred to someone upon disposition of the assets by will, executor's authority, or corporate action. If there is no documentation of the separation of copyright from the image, the copyrights may be assumed to rest with the owner of the image itself. The lack of documentation is not a huge stumbling block (oral contracts are legal and binding) unless heirs of the photographer file a civil suit against you, at which point good faith and possession will play a role. If you acquired them lawfully and ethically, you own any valid copyright. (See my earlier link on Public Domain - there may not be a copyright to worry about.)





Sure. The key here is that the "librarian purchased the slides in 1971 from an heir."

There are four possibilities: (1) the heir sold something he owned (i.e. he obtained possession lawfully, then sold what had become "his" property); (2) the "heir" was actually an executor disposing of property not specifically bequeathed in a will; (3) the deceased was intestate (no will), and the "heir" was acting as executor; or (4) the "heir" sold the slides illegally. Assuming the museum acted in good faith during the purchase (i.e. they believed the heir had the authority to sell them), it may act as if it lawfully owns any valid copyrights. In the case of (4), since copyright is a civil, not criminal, law, only someone who has a valid claim to the copyrights ("standing") may challenge the museum's ownership, and the plaintiff will be required to show evidence of ownership or illegal sale.


Finally: Ray's comments about finding the actual owner are written from the perspective of a user, not a copyright owner. The printer is exercising due diligence to protect himself from a future claim for damages (practicing "defensive publishing," to mangle a phrase), not enforcing a copyright.

JAC