A copyright question for photographers...

[wingman]

What happens to an artist's copyright when he/she passes away? Are the rights inherited by the spouse or surviving family? Can the spouse or other family member grant publishing rights for an image or body of work? What if someone has images from a deceased photographer for whom no surviving family or spouse can be found?

Thanks in advance for any input...

Neal

[ignomini]

Re: A copyright question for photographers...

I'm guessing there is a mechanism which transfers rights to your inheritors, but I would start with some searches on Wikipedia and go from there. Never assume Wiki is 100 percent correct, however.

I've signed contracts which cover rights to intellectual property, and their transfer to inheritors. If corporate America is covered, I have to believe individual artworks have even stronger protection. Copyright law makes patents look like rubbish.

[Shawn Aro]

Re: A copyright question for photographers...

Neal i was talking to my dad and he said you check with Gerald Laing even Nick or Kevin might know about this. Shawn

[BuckyD]

Re: A copyright question for photographers...

What happens to an artist's copyright when he/she passes away? Are the rights inherited by the spouse or surviving family? Can the spouse or other family member grant publishing rights for an image or body of work? What if someone has images from a deceased photographer for whom no surviving family or spouse can be found?

Thanks in advance for any input...

Neal

Hi Neal-

Best advice to offer up for any photographer interested in protecting their work or taking it one step further- interested in photography as a business - I'd highly-recommend investing a few dollars & some time by purchasing a few books on photo business & copyright law. These days of course, much info can be found free of charge via internet searches.

Wish I could be more erudite in addressing your specific question. I seem to recall that an established copyright remained in effect under the copyright holder's name for 50-year period following their death, but not sure about that & would have to check to revisit that point.

One thing I am fairly certain about from the pre-digital film era - "he who 'legally'-owns the original generation of the photo image (negative/positive)- owns the copyrights". The copyright holder must protect title to their photos by ensuring every single reproduction of each original carry the appropriate photo credit line on it someplace w/correct copyright symbol & date prefix (on the front or back of a print, within photo or adjacent it at margin f/publication page-print or web media). A single lapse in this discipline might easily result in compromising one's established copyright down the road (loss of chain of custody). With today's digital photography world, protecting your work's copyrights are tougher than ever before.

Gonna have to re-educate myself on this subject. Thanks for bringing it up!

Bucky

[wingman]

Re: A copyright question for photographers...

Thanks for the replies...

Bucky -- I'm quite comfortable with all you say so far, and you are about the most knowledgable person I know regarding these matters, You have not, however, really been able to address the specific question I'm asking.

Let's get specific. Many years ago a rather well-known Bay area photographer named Bill LeSanche passed away. Some time after his death, his wife Pat loaned me his negatives for a while, and I printed a number of historically important and interesting Air Racing images. I did not get anything in writing, or even as I remember verbally, in the way of usage rights to this stuff. It was just a way for both Pat and I to have some good quality prints of some of Bill's work. I am now trying to track down Pat. If I do find her, I ASSUME she could grant me some sort of specific or hopefully blanket permission to publish some Of Bill's stuff, as I ASSUME that she inherits the copyright on Bill's death. I have never seen this specifically addressed, but it seems to make sense by my sketchy knowledge of the laws in this matter.

The crucial question is what if Pat is also deceased and I make a reasonable effort to find other family and am unable to track anybody down. I don't even know if they had any kids, much less any names...

I would then have this great stuff that really should be seen. I would obviously give full credit to Bill in any usage. I'm also assuming here that there would not be any financial gain to me, as with Air Racing photos (and especially internet usage) there is seldom much if any financial gain to be had.

So could I legally publish this material in Bill's name???

Neal

[BuckyD]

Re: A copyright question for photographers...

Hi Neal-

Via a couple keystrokes f/internet search, I learned the sad news that our dear mutual friend- Pat LeSanche passed-away 10-30-04 (check your email f/details).

Several years ago, Pat & a friend came to Ketchikan to pay Linda & I a visit during their trip thru Alaska. We gave them a grand personal tour of Alaska's First City & had a great time. I'll leave it to you to seek out next of kin.

Personally, I wouldn't assume anything. I'd definately be sure to at the very least properly credit any of Bill's photos used as follows:

"Bill LeSanche photo/Courtesy Pat LeSanche"

or- "Bill LeSanche photo/Nurmi Collection"

That should suffice if your search f/next of kin is unsuccessful & copyright holder is undetermined. Suggest you check the local newspaper obits for next of kin, from the Cal. town refs. included in the link I emailed you for Pat. As Shawn recommended, by all means contact Jack & Sylvia Sweeney, Frank Ronco, & other oldtime NAG folks. Good Luck.

DBD

[Ken from PG]

Re: A copyright question for photographers...

Neal,

Doing something in "Good Faith" still has a bit of legal strong hold in this Country though I'm not positive how it would apply in this situation. I agree with Bucky's thoughts, particularly the "Nurmi Collection" part. Ken

[AAFO_WSagar]

Re: A copyright question for photographers...

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

I think with proper credit, particularly if there is no profit intended to be gained, you have a pretty clear right to publish. If you're meaning to do it here, I suspect we're OK within the DMCA (Digital Milenium Copyright Act)

I'd say, go with Bucky's suggestons for copyright notice, with perhaps an additional "reproduction without consent not allowed" so that others are unable to re-use your images without YOUR permission...

If you're talking about a magazine or book, then you'd have to take the matter up with the individual publisher.

That's my $.02 FWIW....

[wingman]

Re: A copyright question for photographers...

"criticism, comment, news reporting, teaching, scholarship, and research"

Hmmm... Doesn't say anything about "for the enjoyment and education of AAFO members" does it, LOL?

Thanks for all the replies -- this has turned into a very worthwhile dicussion. Any more thoughts from anyone would be very welcome.

Sorry to hear about Pat's passing -- she and Bill were good people. Some of Bill's photos that I have are quite worthwhile and would be a good addition to the historical record,

Neal

[AAFO_WSagar]

Re: A copyright question for photographers...

"criticism, comment, news reporting, teaching, scholarship, and research"

Hmmm... Doesn't say anything about "for the enjoyment and education of AAFO members" does it, LOL?

Thanks for all the replies -- this has turned into a very worthwhile dicussion. Any more thoughts from anyone would be very welcome.

Sorry to hear about Pat's passing -- she and Bill were good people. Some of Bill's photos that I have are quite worthwhile and would be a good addition to the historical record,

Neal

Actually the "criticism, comment, news reporting, teaching, scholarship, and research" probably covers what you're intending Neal... particularly "teaching" "news reporting" (racing news) and for sure, the "research" end of things..

A bit of researching also indicates that if the works were never actually copyrighted, they would fall into the realm of "public domain" and with your efforts to give credit, you'd be perfectly legal..

Since copyright isn't automatic, but implied when you publish (not actually registered, but when you publish something, if you claim copyright, as I understand it, it's protected) were these photos ever copyrighted?

Again, if not, you're probably OK.. In the end, though, you as the person holding the collection, would have to think about the photographers intent when they were taken. Intent for profit? Recording history? Sharing with others?

Good thread and I'd hope whatever works of my own are out there when I pass, are shared.. that's just my personal opinion though..

[dvddude]

Re: A copyright question for photographers...

I'm not a lawyer and don't claim to be one, but I've talked to a couple in the past and they have told me a few things that are interesting:

1) Any creation or "intellectual property" as they call it, is instantly "copyrighted" from the time of it's inception. IP does not have to be formally registered or "copyrighted" to be considered copyrighted. With this in mind, I would suspect that those pictures were "copyrighted" the moment the shutter on the camera was depressed.

2) Intent to profit or not has not effect on whether someone could sue you for copyright infringement. A copyright holder could sue for "dilution of value or product". If this were not the case then the RIAA (Recording Industry Association of America) would have no basis for the thousands of people it has prosecuted for illegally downloading and sharing music over peer to peer (P2P) internet sharing websites. The RIAA has successfully prosecuted many college students who did nothing more than share their music over the internet for free. They made no profit whatsoever, but have been successfully prosecuted. One college student is being sued for $ 4.5 Million by the RIAA for simply sharing songs over the internet:

http://blogs.computerworld.com/riaa_sues_joel_tenenbaum_for_4_5m_in_p2p_trial

The bottom line is this, Neal. I wouldn't take any legal advice from anyone on this forum, unless they are an actual copyright attorney. It would be well worth the money to spend the couple hundred dollars to hire an attorney to look at this and give you real legal advice. The last thing in the world you need is for one of the copyright holder's children or grand children coming to you 10 or 20 years down the road and successfully suing you for copyright infringement and having a settlement established against you to be paid with 10 or 20 years worth of interest. It really isn't that expensive to get a 1 or 2 hour consultation with an attorney who can prevent all kinds of future problems.

My 2 cents!