Copyright and Old Photos
By Andrew Hudson Published: November 6, 2013 Updated: November 18, 2016
Old photos that were not published have copyright protection for the life of the photographer plus 70 years. When the photographer is not known, the protection is for 120 years from date of creation (This is under U.S. law.)
Under U.S. Copyright Law, works created in the U.S. before January 1, 1978 but not published or registered by that date are protected by copyright 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. See U.S. Copyright Office, Circular 1 “Copyright Basics”
“Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.”
— 17 USC § 302
Copyright ownership by will
“Ownership of a copyright … may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.”
— 17 U.S.C. § 202(d)(1)
“Publication is the distribution of copies … of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”
— 17 U.S.C. § 101
“A public … display of a work does not of itself constitute publication.”
— 17 U.S.C. § 101
How can a Historical Society charge for usage?
“Even if the item is in the public domain, it’s a one-of-a-kind historical item, so physical ownership entitles the repository to charge a user’s fee. The same goes for historical photos in online databases.”
— Sharon DeBartolo Carmack, Family Tree Magazine
Will I be sued?
“The risk of being sued for copyright of ‘orphaned’ works is typically quite small. Because they were probably never registered, they would have to first register them (submitting their own originals), then prove that they legally own the title to the copyrights, then prove you infringed their rights, then prove that your infringement has somehow caused them ‘damages.’”
“Lawyers often send letters warning of copyright infringement, but in reality few lawsuits are commenced.”
— Steven P. Aggergaard, Attorney at Law, Media Law Minnesota
“You own a copyright as soon as you create something. The main reason for registering a copyright is to make it easier to sue someone for copyright infringement and to actually seek and receive monetary damages.”
— Steven P. Aggergaard, Attorney at Law, Media Law Minnesota>
From the U.S. Library of Congress:
The Library is unaware of any lawsuits involving the use of its historical images.
The Library is aware of a few cases where a user was told by someone claiming to hold the rights to images in the Library’s collections to “cease and desist” publication of the images. When the users requested proof of rights ownership, however, the matter was dropped.
To establish a prima facie case of copyright infringement, the plaintiff must prove “ownership” of copyrighted material and “copying” by the defendant. (Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995) (citing Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991). A plaintiff establishes “ownership” by demonstrating that the material is “copyrightable” and that he complied with the statutory requirements in securing the copyright. Central Point Software, Inc. v. Nugent, 903 F.Supp. 1057, 1057 (E.D. Tex. I995).
If it is difficult for you to find a rights holder after employing due diligence, it ought to be equally difficult for a claimant to show that a copyright had been secured.
A photo does not have copyright when the author failed to satisfy statutory formalities to perfect the copyright, or the term of copyright for the work has expired. A photo that has no copyright is said to be in the “public domain” and can be used by anyone.
|DATE OF WORK||PROTECTED FROM||TERM|
|Published before 19231||In public domain||None|
|Published from 19231 – 1963||When published with notice2||28 years+could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain|
|Published from 1964 – 1977||When published with notice||28 years for first term; now automatic extension of 67 years for second term|
|Created before 1978 but not published||1-1-78, the effective date of the 1976 Act which eliminated common law copyright||Life+70 years or 12-31-2002, whichever is greater|
|Created before 1978 but published after 1978||1-1-78, the effective date of the 1976 Act which eliminated common law copyright||Life+70 years or 12-31-2047 whichever is greater|
|Created after 1978||When work is fixed in tangible medium of expression||Life+70 years3 (or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation4|
Notes courtesy of Professor Tom Field, Franklin Pierce Law Center and Lolly Gasaway
For use within the United States, the following guidelines apply:
- Works published outside the United States before July 1, 1909 are considered to be in the public domain. [Fishman chapter 18.12 and 18.15] (per Library of Congress)
- Works published outside the U.S. with a U.S. Copyright notice before 1923 are considered to be in the public domain. [Fishman, chapter 18.13 and 18.15] (per Library of Congress)
- Works made by the government of the United Kingdom (England, Scotland, Wales, Northern Ireland) and published more than 50 years ago are considered to be in the public domain. [Schultz, p. 219; U.K. Office of Public Sector Information, (per Library of Congress)
- Library of Congress: Copyright of Prints and Photographs
- Peter B. Hirtle, Cornell Copyright Information Center, chart laying out when items pass into the public domain
- Other charts: Lolly Gasaway, University of North Carolina; Cornell; Mary Minow, Library Law; Copyright Flowchart by Lisa Tittemore at Sunsetein Kann Murphy & Timbers, LLP; Tree-view chart on Copyright Law by David P. Hayes; Public Domain Sherpa (Barbara)
- American Society for Picture Professionals: Best Practices for Locating Copyright Owners of Photographic and Visual Art
- John Schultz and Barbara Schultz, Picture Research: A Practical Guide. N.Y.: Van Nostrand, 1991. [call number: TR147.S38 1991 P&P]
- Stephen Fishman, The Public Domain: How to Find and Use Copyright-free Writings, Music, Art & More. 2nd ed. Berkeley, CA: Nolo, 2004. [LC call number: KF3022.Z9 F57 2004]
“Pictures can fall into a murky area where they may or may not be copyrighted. These situations are perilous to the user, and vexing to the picture researcher or permissions researcher who must try to assure the publisher that he owns the legal right to reproduce. When copyright is unknown or ambiguous, publishers have to make calculated risk decisions.”
— John Schultz and Barbara Schultz, Picture Research: A Practical Guide, p. 216