Photograph Copyright Status

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  • I work for a museum and we used a photographic print in an exhibit that belonged to a private individual. Another private individual came forward today and stated that he has the original negative and that we cannot use this other individuals print without crediting him as the copyright holder. He even pointed me to his website which states that the photo is under his copyright BUT other than him stating this in his email and on his website he doesn't seem to actually have any real intellectual property right to this photo other than owning the original.

    The photograph was taken in 1897 and the photographer died in 1935. It was published in a Railroad Journal that same year. The photograph was published in a book again in 1962 and is credited to the archive that this individual purchased the negative from. Although we cannot determine if any copyright was obtained to publish this photograph.

    Can anyone tell me if they think this individual has any legal claim to the image in this photograph? It seems that we can use a print from someone else's collection without quoting the owner of the original negative.

    Any words of wisdom would be fantastic. Thanks so much.
  • Someone please correct me if my logic is faulty here, but owning the original does not mean you have any property rights or control over copies that were legally obtained or purchased. Is this any different from first sale for books? If I buy a book, I own that copy and it falls under Right of First Sale. The copyright owner (or possessor of the original) does not have rights over whether I can give away or loan my copy.
    I don't believe a photograph would be any different, but this is not my specialty area.
  • Here are my thoughts.

    Owning the original does not give you copyright.

    What year was it published? 1987 or 1935? If 1935, was it published with a copyright notice and renewed after 28 years? If so, in 1962 was it published with a copyright notice and renewed after 28 years?

    If the answer to those questions is yes, did the archive own the copyright to that material? Did the archive sign over copyright to this person?

    If the answer to all of those questions is yes, then the person might have a copyright claim.
  • COvalle is correct that, if the photo was published in 1935 with notice and renewal after 28 years, it will still have copyright protection until 2030 (95 years after publication). But note that the later publication, in 1962, would neither extend this protection nor create protection if the photo has fallen into the public domain due to publication in '35 without notice. And the issue of whether or not a copyright exists is quite different from the question of whether or not this claimant actual holds those rights. Unless there is the chain of transfers that Carlos suggests -- from the photographer to the archive and then to the purchaser -- it seems likely that the rights went down one path (likely to the photographers heirs) and the physical ownership went down a different path.

    Archives often ask for acknowledgment both as a condition for allowing access and because it is good scholarly practice, since it allows other researchers or potential users to locate the image. If all the owner of the negative wants is such acknowledgment, I would be incline to do that. But if he is demanding a copyright fee, I would want to see some evidence that the copyright, which is separate from the physical object, really has passed to him. Indeed, I would first want to be sure that a copyright even persists, based on the conditions of that first publication.

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