Elizabeth Loring Reed (1780-1854) daguerreotype of earlier painting
Old photographs, including those being sold on eBay, displayed on museum and historical sites, or sold by online vendors — are often in the public domain, despite attempts by some of their owners to assert claims to copyright. As early as the 1860s the courts recognized the rights of photographers to copyright their images. Determining if a particular photograph is in the public domain, however, can be a complex and daunting task.
The relevant factors include answers to these questions:
- When was the photograph taken?
- Who was the photographer?
- Was the image ever published?
- If published, was copyright secured and/or renewed?
- Was the publication of the image authorized by the copyright holder?
- Is the photographer deceased, and if so, when?
When was the photograph taken?
A Sarony photograph of Oscar Wilde (c) 1882
It might seem a simple matter to determine when a photograph was taken — and sometimes it is — but other times the matter remains difficult to determine. Photographs can be copied, so to the first consideration is whether the image in question is an original or a later copy. For copyright considerations, the date the photograph was taken is what is important, not the date it was printed. An image printed from the original negative a hundred years after the negative was taken, is still a 100 year old photograph, for copyright purposes (unless it was published, which is another issue).
But what if I take a camera and take a picture of the old photograph, or use a scanner to copy it? Doesn’t that create a new photograph that I have copyright to?
Well no, it does not. Way back in 1882, in the famous case of the Burrow-Giles Lithographic Co. vs Sarony, the supreme court confirmed that the lower court was correct in supporting Napoleon Sarony’s copyright to an image of Oscar Wilde that the lithographers had copied without permission. Burrow-Giles argument that the lithograph was a new creative work was not accepted. The litho image was derived from the original photograph, and hence what we call a derivative work today, which still is protected by the original copyright.
No one would argue that an author’s copyright exists only in the original manuscript, and not in printed copies or spoken readings. By the same token a photographer’s copyright applies to any copy of the original image, no matter how it was made.
Copyright also requires that the original photograph be an original work to qualify for copyright protection. Burrow-Giles argued that Sarony did not create Oscar Wilde, and so had no right to his image. The court found however that Sarony had enough creative input into the composition, lighting and posing to meet the originality clause of the copyright law.
If Sarony had been taking a picture of painting of Wilde, the work would be derivative, and copyright would belong to the artist who painted the image, not Sarony and for his copy — despite the fact that making a good copy could be more difficult and require more creativity than taking a portrait from life — and the relevant date would be the date of the original painting, not the photograph.
Who was the photographer?
Identifying the photographer of an old image is not always clear-cut — in fact it may not even be possible. Some images are marked with the name of photographer — but even that doesn’t mean that photographer took the image. Sarony never actually took photographs in his studio — he had a camera operator to do that. Before the distinction was made clear, the assumption was that any work done by employees was automatically under copyright to the owner as hired works. That is still true today, though it may be altered by contractual agreements.
One might think then, that hiring a photographer to take your portrait would establish a ‘work for hire’ and the subject would own the copyright. You are not, in fact, hiring the photographer to take your picture — you are allowing the photograph to take your portrait. The payment (if any) is for the print or prints the photographer sells you. The photographer retains the negative, if there is one — and that is evidence that your purchase does not extend to copyright.
Many other photos have no identification on them to indicate who took the image. Most family snapshots are in that category, as well as many published images. The fact that the original photographer is not known does not mean that photographer does not still own the copyright.
Was the image ever published?
Many people think all photos made prior to 1923 are public domain — in fact only photos published prior to 1923 are now in the public domain. Photos that were never published (such as most family portraits) may be protected up to 120 years from the date of creation — as in the case where the photographer is unknown, or is a corporate entity.
Earlier copyright law had shorter time limits on the duration of copyright than we have today. Images that were published came under those limits, and if they entered the public domain they are still in the public domain. Unpublished works, however, were included in the acts extending copyright of published works that had not entered the public domain at the time the changed law went into effect.
Earlier copyright law did not specifically distinguish between published and unpublished works, but the new law, which applies to many unpublished works, says copyright extends a maximum of 95 years from publication or 120 years from creation, whichever is less.
If published, was copyright secured and/or renewed?
Very few people applied for copyright renewals when their first copyright was about to expire. Anything copyrighted before 1923 has expired copyright because they entered the public domain before the law was changed. But images published between 1923 and 1960 fall in the ‘gray zone’ — they are public domain if a copyright extension was not filed, which applies to over 90% of all cases.
The old copyright was very strict, and published material was required to include a copyright notice. There was a wiggle-room exception for accidental omission of a notice, but such a situation would be difficult to prove in retrospect. So many images, such as old postcards, were never protected by copyright because they were published without any copyright notice. (This refers to publishing in the USA, different rules apply to foreign publications.)
Was the publication of the image authorized by the copyright holder?
Publication of an image does not affect its copyright status if that publication was itself a copyright infringement. Every day, thousands of images are published on the internet — posted on eBay or Flickr, or on private websites — without the permission of a valid copyright owner. The practice is widespread because the odds of being detected are slight and the cost of seeking legal redress would be excessive. Those same conditions applied to print publishing 50 or 100 years ago, so many images were published without permission. Such images fall under the more liberal rules for unpublished works, and may thus be protected by copyright even if they were published before 1923.
Is the photographer deceased, and if so, when?
If the photograph was not published with permission of the copyright holder, then it falls into the unpublished works category, and copyright exists for 120 years from the date of creation or 70 years after the photographer’s death, whichever is shorter. Almost all family portraits fall into this category, excepting only very famous people. For most families, if any portraits were published in old genealogies, it was without the permission of the photographer.
In Summary
In the US, photographs are currently (2010) in the public domain if:
They were created over 120 years ago by anonymous photographer (pre-1890)
or
The photographer died over 70 years ago (pre-1940)
or
They were in the public domain when the law changed (published pre-1923 or published without copyright notice pre 1963 or published without copyright renewal pre 1963)
Oh yes, and a photographer can specifically place an image in the public domain, even if it was just taken yesterday. There are lots of those on Flickr, but it is only valid if they owned the copyright to begin with! Many people designate family photos or pictures they have found online or purchased at a flea market as ‘public domain’ when they are not.