Who owns the rights to old photographs, negatives and old magazines from the 1930s, 1940s and 1950? The photographer who took them is deceased since 1961 but I have permission from his family to use the photos for a book and art exhibit. This project will be funded through Kickstarter and will not make a profit. There are hundreds of photos including famous, and not famous, performers who used these photos for publicity purposes. Our family has approximately 15 photographs by this photographer (mostly of my father and a dance partner). Where possible I have obtained permission from the heirs (i.e. Buddy Ebsen and Loretta Young) but in many cases there are no names to even track down these old time performers (or their families). 2. The family of the photographer is concerned about legal liability for me to use them. 3. Of course, I do not wish to be sued either and have considered forming an LLC for the project. 4. Would it make a difference if any profits were donated (ie to the New York Public Libary) if there was a profit on any part of the project? 5. Are there release forms for the families I have been able to contact to use the photos? Thanks! Maureen
Country relating to Question: United States
State (if USA): Washington
Just online research on copyright laws which are murky at best.
PLEASE DO NOT use the rating system until satisfied. Instead, please click REPLY TO EXPERT to continue our conversation.Hello. Thanks for contacting us.You are asking all the right questions. The answers, unfortunately, are far from simple.The first thing to determine is if the photographer took the photos as an employee or not. If he was working for a publication, then the publication would have owned the copyrights. The next thing to determine under the old copyright law is whether the photos were registered properly (the old copyright law required registration before at the moment of publication, the copyright law today grants a copyright upon creation of a work). If they were not registered, then they are in the "public domain" and there is no copyright.Also, there was a requirement for copyrighted works before 1963 that the copyright be renewed after 28 years. If this formality was not completed, then the work also is in the public domain and is free for the taking.There are other nuances, which I think are really well flushed out at this link (which also provides dates and copyright terms) http://copyright.cornell.edu/resources/publicdomain.cfm#Footnote_8Another complicating factor is that that copyrights can be sold. It is possible the photographer had registered the copyrights, but then sold them to a photo agency or a publisher. While those who acquire copyrights are supposed to file notice with the Copyright Office at the Library of Congress, it does not always happen. This makes searching treacherous.There are ways to conduct a copyright search one's self. The Copyright Office gives good advice on searching in this online pamphlet:http://www.copyright.gov/circs/circ22.pdfThe problem with searching for such old material is that it is not catalogued online. So it would then be necessary to either search at the Library of Congress (card catalogue and other documents) in Washington, DC, or pay to have it done for you.The records, unfortunately, are notoriously error-ridden (especially if copyrights have been sold), so there is still a risk that even if something looks clear, it may not be -- and even if one has diligently searched, if the LIbrary of Congress records have a gap, use without a written license or assignment of copyright would still be infringement.For this reason, many people pay copyright search firms or copyright lawyers to do the searching and, in return, get some financial protection against data errors that lead to infringement suits. As for other questions:-- Photos of public figures that are true and not achieved by violating other laws (such as trespassing with a hidden camera) are fair game for publication in history work, in most cases, if there is no implied endorsement of a product, service, etc. However, if there was a contract that prohibited certain uses, that contract would define the ability to use. As for copyright liability, only the one who copies a work without a license or assignment risks liability for infringement.--An LLC would offer some protection. But because individuals who infringe on behalf of the LLC can also be liable personally, it is not the same kind of protection that LLCs offer for things like business debts.--Non-profit educational use gets more protection through "fair use" provisions of the Copyright Act. However, it is not a total shield. The carve-out is narrow. For instance, an educational program might be able to display the works, but things like a commemorative book, post cards, posters etc could infringe. Profit is one of the factors in determining fair use. --Release forms can be helpful. Even if a use of someone's image is perfectly legal, it makes it easier to get any possible lawsuit kicked out of court without trial. There is no set form -- one's own lawyer has to create it. In profit-making situations that don't involve journalism-like endeavors (and photos taken in wholly public places), such releases are even more helpful, especially if a celebrity is involved (whose image has a market value in and of itself).I hope this information will guide you to the right places. I do stress that so much of the analysis here must be based on specific facts and circumstances -- and for that level of specificity, it is best to get confidential advice from one's own lawyer, protected by attorney-client privilege (obviously impossible on publicly-accessible legal information web site). But armed with this information, I hope you will be better able to resolve these issues and, if needed, be more focused in your discussion should you engage a lawyer to assist.I wish you every success with this project!
Practicing Law Since 2000
Thanks for the information. It does seem very complicated.
How would I contact you later if I need confidential advice from you in the future?
Hello again.Thanks for the vote of confidence.Sadly, the site's rules prohibit us from turning informational answers into our own legal clients. There are legal reasons for this, which can be even more complicated and obscure than copyright law! But, they exist, so we must abide.If you have questions that fall not into the confidential legal advise category, but are more in the realm of legal information(Like this one), please feel free to post a new question. If you begin with the words "FOR ATTORNEY WAYNE", I'll get alerted. (Please understand that if you specify a particular expert, it may take a bit longer to get an answer, due to other commitments and personal human needs).Again, I wish you all the best with project
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