I have recently purchased photos and negatives from an estate in California. I believe that these photos have been taken from "photo albums" and are not "professional" photographs.

         The subjects are people, animals and buildings photographed during the 1930's and 1940's. My purpose, in purchasing these items, is to use them in paintings, photography and other artwork I intend to create for sale.

         Should I worry about any copyright infringement?

         Can I place a copyright on the photos and negatives myself? How far does my ownership of these items carry me in regards to copyright issues?

A: The situation you describe falls more into the "Law of Probability" than the Copyright Law. The Copyright Term Extension Act of 1998 retroactively extended the duration of copyright to life of the author plus seventy years. The European Union provides protection for a term also of the author's life plus seventy years. As an example, the photographs you mentioned, based on the Copyright Act revision of 1978 and the extension of 1998 would be in effect until (guessing, based on lifespan actuaries) 2050.

         The spirit of the Copyright Law says that once you "click" the picture, the copyright is yours. So, anyone with a camera going around taking pictures is actually acquiring copyrights to those pictures. No formal registration of copyright is necessary. Practically speaking, unless the photographer is a professional, no attention is paid to copyright. The probability of the heirs or the author of the photos in your possession seeking copyright protection, is close to non-existent. But, you should make an earnest search to find the author of the photos, and record your efforts (in case of litigation) .

         Getting back to the "spirit of the copyright law," Congress does not want to limit the artistic merit of artists and photographers, so Section 103 of the Copyright Act describes "derivative works," which means that a photographer or artist might employ parts of photos or artwork produced by other photographers or artists. The Copyright Law cautions that, yes, you own the copyright to that part of your photo that you have designed and photographed, but if you employ a part or parts of another's photograph, that person's copyright in still in force.

         Here's how the Copyright paragraphs say it: "(a) protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully; ( b) the copyright in a compilation or derivative work extends only to the material contributed by the author ( -you-) of such work....". Translation: You own the copyright of the new photo or painting, but not the existing copyright of the image you employed in your painting.

         Of course, if a photo you employ is in public domain, such as a government-owned photo which anyone may use, there is in most cases no copyright problem. (Hint: Use federally-owned photos whenever you can. See pages 208-211 of sellphotos.com.) This whole problem came to the fore back in the 60's when Andy Warhol began employing 'parts' of photos and drawings in his paintings. Initially, when Warhol was still an unknown artist, no one bothered him about copyright infringement. Later on, others were simply honored that he employed one of their photos or their artwork in his paintings and silk screen prints. He often employed press photos of Marilyn Monroe, for example. The popular Monroe silkscreen prints that Warhol made from them now sell for a high fee. Warhol solved any copyright infringement situations "out of court."

         We are back to the Law of Probability. Your finished photos or paintings would probably have only vague similarity or identifiable characteristics to the original photo or photos you utilized, so the chances of any legal problems are very low. However, if you used the actual snapshots in your paintings or photos, would the original author or their heirs of the photos you acquired, come back to haunt you with a lawsuit? If you became fabulously wealthy (like Warhol) as a result of your photos and paintings, you would no doubt be happy to share the wealth with them. If no wealth evolves, it's unlikely you would experience a lawsuit.

         Finally, the ownership of the actual photos does not allow you to own the copyright to those photos. The copyright still remains with whoever made the image (for "lifetime plus 70 years"), even though you may never locate the photographer or his/her heirs.

         However, the new concepts and images that you create, utilizing parts of these photos, belong to you, once you "click" the shutter or lay brush to canvas. The law of probability is, that your complete ownership of your unique use of a deceased person's images, will probably never be contested.

-Rohn Engh


Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th Road, Osceola, WI 54020 USA. E-mail: info@photosource.com . Fax: 1 715 248 7394. Web site: www.photosource.com .
       

           

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