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Answers to copyright questions (long)



With thanks to those who answered and for all who are interested, here are
the replies I got to my recent call for help in tracing copyright ownership
for photographs salvaged from an abandoned building that was involved in a
series of business transactions.


Tom's dilemma of who owns copyright to photographs salvaged from an
abandoned building slated for demolition with the chain of title running, as
he said:

In summary:

Company A's corporate photographers took the photos.
Company B acquires Comopany A as a division.
Company B phases out all former Company A operations, but keeps the division
built around it going.
Company B sells all interest in the division built from Company A to
Companies C and D.

Inspires me to suggest, only half facetiously, that our lawmakers should
borrow a principle of real estate law-adverse possession. Or, perhaps, the
right of salvage from maritime law.

Paul R. Scott
Records Management Officer
Harris County, TX


Tom - I have dealt with these exact circumstances myself and it really comes
down to who owns the intellectual assets of Company A. In recent business
endeavors, Intellectual Property is called out specifically as an asset that
is being sold. In the original acquisition by Company B in 1970 it is
unlikely that it was mentioned as intellectual property was not such a big
aspect, but in the Company C and D change...it is likely that it is called
out in their contracts.

Typically I would try and see a copy of those contracts or try and work with
their Legal Staff's to understand how they wrote the purchase.

Kim Schroeder
Archive Impact
1-888-IMPACT1
Asset Management & Design
Archival Services Indexing Encoding
www.archiveimpact.com


I would say to look into who was the individual or organization that demo
the building. Also, how was the antique dealer able to salvage the
photographs. Was he given permission to do this?

In the end I think that the copyright belongs to who ever created the image
in the first place. While you may own the photograph the rights remains with
the one who created the image.

David Roepke
Ashland University Archives
Ashland, Ohio 44805
Phone 419-289-5433
email droepke@Ashland.edu
website http://archives.ashland.edu


Dear Thomas,

I posed your question to my husband who is an intellectual property
attorney. This is his answer.

Deborah Gaudier

*******************
The answer depends on several things.

By "company photographers" do they mean employees of the company who took
the pictures, or an independent photographer who was hired to take the
pictures?

If they were company employees, then the copyrights in the pictures likely
belong to the company ("A").

If they were independent photographers, then the terms of the contract with
the photographers would control. In the absence of any words to the
contrary, the creator of a copyrightable work (e.g. the photographer) would
own the copyrights to the photos and the company would have a limited right
to use the pictures for whatever purposes were specified in the contract
(e.g. company promotional brochures, company history book, etc.). There
would need to be a clear assignment of the copyrights in the contract before
company "A" could claim ownership.

Assuming that company "A" did own the copyrights to the pictures, then
subsequent transfers and ownership as between companies "A", "B"and "C"
and/or "D" would depend on the terms of sale of the assets of company "A" to
"B" and subsequently from "B" to "C" and/or "D". Such agreements typically
have general language assigning all rights to intellectual property (which
includes copyrights) relating to the transferred assets to the purchaser of
such assets.

Hope this helps.


Boy, Tom is just full of interesting questions! For the ones out of the
salvaged building, I agree with one poster; maritime salvage applies!
Seriously though, who's going to dispute it? Did you ask the dealer, from
whom you bought the photos, for a statement to the effect that they were
rescued from a building to be torn down? This is one of those that you just
go ahead and make the assumption that you have the rights and hope it
doesn't come back to bite you. I honestly don't see what else you can do
aside from a long, and probably futile, effort to track down the
photographer.

As for the digital copyright question, this is another oh-so-grey area; we
have many collections now that are, in the felicitious modern phrase,
"digitally born." (Not digitally boring, that's something else entirely!)
With scanning being what it is these days, we've added considerable numbers
of images to our collections from donors who didn't want to donate, per se,
but were
willing to let us copy them. Fortunately, by this point we'd wised up enough
to secure a right or rights to use the collection, and so far it hasn't been
a problem. In our paperwork we usually say
something like "digital images only; originals retained by donor. Copyright
NOT assigned to the University of Utah" blahblahblah.

Don't we all just love copyright questions?

Roy Webb, C.A.
Multimedia Archivist
Special Collections
J. Willard Marriott Library
295 South 1500 East
University of Utah
Salt Lake City, Utah 84112
(801) 585-3073 // fax (801) 585-3976
rwebb@library.utah.edu