Can someone claim ownership by publishing old photos given to a historical society by various families?

Question

Someone who had access to photos given to a historical society of 100+ yr old photos wrote a book. And in this book he used the photos donated to the historical society. He published his book and copyrighted it as he says, now he own all rights to the photos! Is that correct? For example my great grandmother's photo which we all have a copy of, was also given to this historical society. If I post it on Facebook he sends me a message that he owns the rights to the photo and to take it down. Is that legal?

Answer 1

"Not really, but it can get complicated"

The first issue is that giving a physical copy of an image does not transfer ownership of the copyright of that image. They are two distinct elements in the eyes of the law.

[Handing someone 'a copy' of an image does imply you also extend to them some rights, such has being able to use that copy or giving that copy to someone else, but it technically does not actually grant you control of the rights, even if it was the last copy of the image if those weren't also passed to you through contract.]

• So the author cannot successfully claim ownership of the copyright if they don't actually hold it.
• They can however still try to claim them, which is its own can of worms. You can try to claim ownership of anything after all...

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Depending on who took the photo, and where, the author may in fact not actually have the right to publish said photos. Just because a photo is "old" doesn't mean it has entered public domain and is free to use.

[Not actually a legal opinion:] As an example, by a quick reading of current Canadian law: A "100 year old photo" that had been taken by a photographer who was 15 at the time, then passed away at 95, would still have another 30 years of copyright help by the photographer's estate.

However, exact details will vary by region and date of the work in question, and nailing down specifics is not as easy as reading an article on the web.

• If someone attempts to make a stink about it, consult a local copyright lawyer.

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Copyright on restorations and other 'transformative' works for images that HAD lapsed into public domain is a bit fuzzier and more of a grey area. However they would only ever grant an artist rights over copies that come out of their work, and not over existing copies or copies sourced from such.

Details again depend on region, but my impression is things seem to run along the lines of:

• Restoring a damaged image to look like it originally did rarely is seen as enough to claim any copyright, but edge cases may exist.
• Restoring an image to be slightly different from original, such as life like colourization, is sometimes enough for a new 'copyright' over the 'new' image, but is unlikely to prevent others from creating their own similar works from copies of the original source.
• Wildly changing the image, such as applying outlandish colours or distortions, are more likely to qualify to be granted copyright that prevents others from creating similar images, even if they do so from the original.

[Note: not a lawyer, take content with large grain of salt, and consider talking to actual legal professionals local to you.]

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