Photo copyright question

Question

There was a factory scrapbook of a production line of a company. The book had important photographs of the company products. The factory scrapbook was started in the 1910s and continually updated to 1960 when the company was carved up and sold off. The company exist today as a trademark name only. All company documentation was stored offsite and then destroyed in the 1970s. The factory scrapbook was not included in that destruction. It is the only surviving documentation of that company.

In 1993, the factory scrapbook was sold by an unknown person to Person A at an antique show. Person A printed a book using those pictures. Person A died and the family sold the factory scrapbook to Person B.

Person B made another book using those photos in 2010. Person B sold the factory scrapbook and all the 'rights' to his book to Person C.

Person C says that he owns the copyright to all photos in the factory scrapbook and the rights to Person C's book. Person A, B nor C photographed the items in the Factory Scrarpbook. The photographer is dead as is anyone who had first contact with the book. My question is this.... Since the factory Scrapbook was not an individual's book but a company book, did any of these people own the copyright of any of these photos? Person C told me he owned copyright on the photos.

Any advice is appreciated....thank you....

Answer 1

(Assuming you are in the United States. Other jurisdictions will vary.)

Each photo in the scrapbook would need to be determined individually.

In general the photographer or their estate would hold the copyright unless the photograph was done under a contract or for hire arrangement that assigned copyright to another party.

Depending on the age of each photo, if a copyright expired without being renewed that photo would now be considered public domain. For photos created from the time your company was started after 1910 until around 1923 the term was 75 years. For photos created after 1923 but prior to 1978, the term is either 120 years from date of creation for unpublished photos or 90 years from the publication date for published photos. So it is possible that some of the photos made and published prior to 1925 are now (as of 2015) in the public domain. It is also possible that some of the photos were published without a copyright notice during the period when doing so would have placed the photo in the public domain upon publication. The requirement to provide a copyright notice at the time of publication was not dropped until after your company folded.

The problem with any of theses scenarios is being able to prove which of the photos in the album fall into which category. Without documentation to support your contention you are always risking the possibility that another party may step forward at a later date with solid documentation they own the rights to an image.

Without documentation to prove otherwise, the safe thing would be to assume all of the photos are still covered under copyright and treat them as such. If no evidence exists that documents who holds copyright to a particular photo, then the copyright to that photo is effectively orphaned until 120 years after each photo was made. After the 120 years have passed no one could renew the copyright since only the current copyright holder can apply for a renewal. If no documented copyright holder exists, then no one is eligible to renew the copyright. In which case each photo would pass into the public domain 120 years after it was made (75 years for photos taken prior to 1923).

Answer 2

Selling pictures doesn't sell copyright unless it's explicitly mentioned. It sounds like Person B sold rights he didn't have to Person C. It's possible this gives Person C recourse if he gets sued.

The copyright may reside in the original photographer, it may reside in the company if the photos were done as work-for-hire. The reality is probably a mix. Since the documentation was destroyed it's probably impossible to know.

But that doesn't protect you from someone who has grandpa's contract in a box in the attic.

This is why orphan copyright legislation is necessary.

Currently, if you ignore copyright issues and publish these photos there is a tiny but non-zero chance of being sued for catastrophic statutory damages.

But the only alternative is obscurity. That's broken and needs to be fixed.