Who Owns the Copyrights to Your Photographs?

The 28th Edition of the Carnival of Genealogy on Surnames has been published.

Update: The topic for the 29th Edition was going to be Smile for the Camera. Jasia challenged bloggers to crack open the photo albums and blog about our favorite photos. As of Friday, 20 Jul 2007, the topic for the next Carnival of Genealogy has been changed to Moral or legal dilemmas in genealogy and genea-blogging, which ones have you had to deal with and how did you resolve them, if you did?

The deadline for submissions using the carnival submission form is August 1.

I recently completed the course in Genealogy & Copyright Guidelines through the National Institute for Genealogical Studies and, I must admit, I learned a lot about copyright law . Copyright law poses some important questions for the upcoming Carnival of Genealogy, not the least of which is: Who owns the copyrights to your photographs?

Copyright laws differ among countries, but in this article, I’ll limit my discussion to the United States copyright laws. Be aware that I am not trained in the law and I am not qualified to provide legal advice. The information provided in this article is not intended to be legal advice. Be sure to consult with a qualified legal representative to answer your questions about copyright laws.

Who Owns the Copyright?

Most people will not be surprised that, generally, the photographer owns the copyright in a photograph. However, the copyright may be transferred to another person. Upon the death of the photographer, the copyright is transferred to the copyright owner’s heirs.

A somewhat unexpected consequence of this fact is that, in most cases, a professional photographer owns the copyright to the photographs he takes. This means that, if someone hires a professional photographer to take wedding pictures or studio portraits, the photographer owns the copyright to the photographs, not the person who hired the photographer.

One exception is if you ask someone else to take a photograph of you with your own camera, you own the copyright. In this case, even though someone else snapped the picture, you own the original negative or original digital image, and consequently you own the copyright.

Ownership of a photographic print or digital image does not confer ownership of the copyright of that photograph. The copyright is owned by the owner of the original negative or original digital image.

How Long Does Copyright Last? 

Unless specific laws or agreements place a photograph in the public domain, most photographs are protected by copyright for a certain period of time. In order to be protected by copyright at all, the photograph must be original, but as long as the copyright is in effect, a photograph may not be reproduced or published without permission except as allowed by Fair Use (see below).

New Photographs. New photographs, meaning photographs taken after 01 Mar 1989, are automatically protected by copyright . The photographs need not include a notice of copyright, the photograph need not be published, and the photograph need not be registered with the copyright office to be protected.

Take note, however, that registration of the copyright of a photograph may be necessary to claim damages if your copyright is infringed. The current registration fee is $45, so it is unlikely that most genealogists will register the copyrights on their photographs.

If the photographer is known, the copyright is valid for the photographer’s life + 70 years. If the photographer is unknown, the copyright is valid for the year of creation + 120 years, or the year of publication + 95 years, whichever is shorter.

Photographs Published Before 01 Mar 1989. To be covered by copyright, photographs published before 01 Mar 1989 must have been accompanied by a copyright notice. Photographs published before 01 Mar 1989 without a copyright notice are in the public domain. In this sense, publication means that the photograph is made available to the general public.

See the American Society of Media Photographers website and the comment by Robert Panzer (below) for more information.

Photographs Published before 1923. In the United States, all photographs published before 1923 are in the public domain. They may be used freely, although proper credit should still be provided to the photographer, if known.

Unpublished Photographs. Special care must be taken with photographs that are unpublished, where publication entails distribution to the public. Unpublished photographs are protected by copyright for the life of the photographer + 70 years, if the photographer is known. If the photographer is unknown, the copyright is valid for the year of creation + 120 years, or the year of publication + 95 years, whichever is shorter.

Most of my own family pictures fall into the category of unpublished photographs.

Obtaining Permission to Use Copyrighted Photographs 

Unless someone is certain that either he owns the copyright to a photograph or that the photograph is in the public domain, he should obtain permission to use the photograph if he intends to use the photograph beyond the limits of Fair Use.

If the photographer is deceased, the copyright will usually pass to the photographer’s heirs. If a photographic studio has been sold, copyrights may have been transferred to whoever purchased the studio. Permission to use professional photographs still under copyright should be obtained from whoever currently owns the copyright to those photographs. The owner of the copyright may ask for royalties in exchange for permission to publish the photographs in a family history or on the web.

This means that you may inherit the copyright for photographs your deceased parents took. It also means that you may share the copyright with your siblings. If you don’t own sole copyright to the photographs you want to publish, you should obtain permission from all current copyright owners . 

One-of-a-Kind Photographs

If a photograph is one-of-a-kind, such as a photograph found in an archives or private collection, the owner of the photograph may still charge a fee for use of the photograph, even if the photograph is in the public domain.

Privacy

Photographs that include recognizable people present additional concerns. Before publishing the images of living people, one must obtain the written permission of those people. Exceptions exist for the publication of the images of public figures when used in a context related to that person’s public status.

Copyrighted Content in Photographs

Aside from the issue of copyrighted photographs themselves, one must be aware that the publication of photographs of copyrighted subjects and trademarks may also be protected.

Buildings constructed after 01 Dec 1990 may be protected by copyright and the publication of photographs of such structures may violate copyright laws . However, if the building is in a public place and photographable from a public place, publication of photographs of copyrighted buildings may not violate copyright laws.

An exception exists when a building includes copyrighted artwork . Permission to publish a photograph of copyrighted artwork must be obtained before publication.

The Picture Archive Council of America has assembled a list of structures that may be protected. This caveat does not mean that you can’t take a picture of these structures. It does, however, mean that you must obtain permission to publish those photographs.

Fair Use

Fair Use permits the use of copyrighted material in limited circumstances determined by the intended use of the material, the nature of the copyrighted material, the amount of copyrighted material used, and the effect of the use on the market for the copyrighted material.

Based on this, one may be able to use copyrighted photographs for personal educational purposes, but reproduction of copyrighted photographs on the Internet or in a published family history is probably outside the limits of fair use.

Photographs on the Internet

While the Internet is widely used for the free exchange of information, one should never assume that photographs posted on the Internet are in the public domain. In turn, this observation does not mean that public domain images do not exist on the Internet. To find public domain images, try searching for “public domain images” using your favorite search engine. There are plenty of royalty-free public domain images available on the Internet as well as images available for use for a fee.

Conclusion

Before publishing a photograph on the Internet or in a Family History, be sure that you have the right to publish the photograph. If you are not certain that the photograph is in the public domain or that you own the copyright to the photograph, either obtain permission to publish or consider using another photograph.

And, if your photographs include recognizable images of living people, be sure to obtain the permission of those people before publication.

Once again, I am not trained in the law and I am not qualified to provide legal advice. The information provided in this article is not intended to be legal advice. Be sure to consult with a qualified legal representative to answer your questions about copyright laws.

For More Information

To learn more about copyright issues for genealogists, consider enrolling in the Genealogy & Copyright Guidelines course offered by National Institute for Genealogical Studies.

Sharon DeBartolo Carmack has published a concise guide to copyright and contract issues for genealogists. In her book, Sharon describes her own experiences with copyrights and contracts and provides much more information in an easy to read Question and Answer format:

Carmack, Sharon DeBartolo. 2005. Carmack’s guide to copyright & contracts: a primer for genealogists, writers & researchers. Baltimore, Md: Genealogical Pub.

Additional information, including copyright basics and Frequently Asked Questions can also be obtained from the United States Copyright Office website.

Copyright © 2007 Stephen J. Danko