Copying Old Photographs: Infringement of Copyright Laws?

According to the U.S. copyright office, "photocopying shops, photography stores and other photo-developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued."

"Copy shops have been sued for reproducing copyrighted works and havbeen required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if it reproduces a work even if it did not know the work was copyrighted."

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a "copy" of a photograph is distinct from the "work" itself -- the intangible intellectual property. The owner of the "work" is generally the photographer or, in certain situations, the employer of the photographer. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer's will or passed as personal property by the applicable laws of intestate succession.

However, in the U.S. virtually all photographs published before January1923 are now in the public domain.

There also may be situations in which the reproduction of a photograph may be a "fair use" under the U.S. copyright law.

But, "Access and use of unpublished materials or those created after January 1923 can be much more complex, since each of the four rights of the copyright holder can be controlled separately . . . it is possible to acquire a physical print of an image through purchase or gift, without obtaining any other rights to the image. The copyright holder may retain any or all of the four supplemental rights associated with subsequent use of the work."

(Previously published in RootsWeb Review: 12 April 2006, Vol. 9, No. 15. Reproduced with permission. [HCS edd note: introduction to article has been omitted by HCS, and title changed slightly from original.])

(HCS Posting date 29 April 2006)

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