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Thomas Swartz
Thomas Swartz, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3154
Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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I have several images of obscure photos, pitch cards, etc.

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I have several images of obscure photos, pitch cards, etc. that date as far back as mid-19th to early 20th century (circa 1850-1950). In the last two years, I've had some of these said images professionally restored and printed onto T-shirts. I pondered the possibility of selling these shirts commercially and I was wondering: What are the legal requirements to do this w/o having to worry about the ramifications of copyright infringement??

With any photograph published before 1923, you are completely safe as those works are now in the public domain and you can freely copy them and use them for commercial purposes. With respect to photos published after 1923, the copyright duration rules become a little more complicated. Rather than giving you the complete rules, let me refer you to this excellent Copyright Duration Chart and Copyright Term Calculator.

Obviously for photos that are still in copyright you would need permission from the copyright owner in the form of a license to make copies and put them on objects like T-shirts. For photos still in copyright, unless the photo or image has a copyright notice on it, you are likely going to have difficulty tracking down the copyright owner of such photos. It is just going to take a lot of detective work trying to track down the photographer, publisher, etc.

Customer: replied 4 years ago.

As I was saying, many of these photos were definitely before 1923; however, I had some of them restored professionally w/in the last couple of years. Would they be considered new?

No. Restoring the image does not renew the copyright in the underlying photo or image.

Customer: replied 4 years ago.

And how exactly do we define 'published' in this context? Is this referring to when the photo was created, printed in a book, etc.?

The copyright code defines "publish" or actually "publication" as follows:

Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication (17 U.S. Code § 101, scroll down a bit).

So, it is basically the distribution of the work to the public by sale etc.

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