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I once asked a lawyer if it would be possible to start an abandoned property
proceeding for copyright to clear up title. The lawyer pretty much gave a
flat "no" to that possibility (I forget the rationale, but it must have
sounded good enough to keep me from pursuing what I thought was a pretty
nifty solution).

Remember that the photographs may have been produced by many people, then
acquired by the company; the company may not have owned copyright to those
images to transfer them to someone else.

So from a legal point of view, you probably can't reproduce these images
without running the risk of copyright infringement. The real trick here is
not what's legal, per se, but what's your level of risk. If most archives
allowed only those images in their collections that were clearly in the
public domain or which they clearly owned rights to, then very few images
would be published.

The first thing you want is to develop a policy that describes procedures
patrons must follow to try to obtain copyright. If you are sued for
infringing copyright, you can point to the policy as a good faith effort to
obtain permissions (mitigating damages).

For example:

1. Photographs made recently by a well-known, established photographer.
(E.g., everyone knows Ansel Adams' name and it's not hard to find his
estate.) Require permission.

2. Photographs made some time ago by a known photographer (the studio's name
and address is on the print or known from surrounding documentation). If the
studio is still is business, require permission. If the studio is not in
business and a check of the phone book for the past several years suggests
that the photographer is out of business, then allow publication. If there's
an address, you might require the patron to send a registered letter to that
address; the returned envelope will help confirm your attempts to seek
permission.

3. Photographs made some time ago by a known photographer, but no real
ability to contact the photographer. For example, the back of the print
might say "Photo by Starr." But you have no idea which city Starr worked in,
a first name, etc. Allow reproduction.

4. Photographs with no information regarding the photographer (no name, no
nothing, not even from the surrounding documents). Well, there's not much
chance any can contact the copyright owner for permission, so the image can
be reproduced.

A question to consider when determining how recent "recently" is, try to
guess if the photographer is likely to be in business. If a photo was made
by 35 year-old in 1950, the photographer would be 85 now; almost certainly
retired -- although if it's a commercial studio (Gittings, Olan Mills,
etc.), you're definition of "recently" may change.

Consider the use of the image. A photo reproduced in a scholarly work of
limited distribution may be protected by fair use; the use would not
substantially hurt the photographer's commercial interests. A photo used to
sell a product on billboards is a commercial use that the photographer would
reasonably charge a lot of money for.

So, it's really risk management rather than copyright.

In your collections documentation, note not only that you do not own the
copyright, but the grounds on which you'll allow reproduction based on the
policy.

Richard Pearce-Moses
rpm9@mindspring.com


At 08:10 AM 10/2/2001 -0700, Richard Pearce-Moses wrote:
I once asked a lawyer if it would be possible to start an abandoned property
proceeding for copyright to clear up title. The lawyer pretty much gave a
flat "no" to that possibility (I forget the rationale, but it must have
sounded good enough to keep me from pursuing what I thought was a pretty
nifty solution).

Abandonment of copyright requires intent by the copyright owner to surrender
rights in the work. Normally this intent is proved by an overt act
evidencing such intent. This might be a statement relinquishing copyright in
the work or the destruction of the only existing copy of a work. Leaving
photographs in a building wouldn't be enough I don't think to prove that
there was an intent to abandon copyright.

Richard also wrote:
Copyright can only be transferred in writing.

The law actually says: "The ownership of a copyright may be transferred in
whole or in part by any means of conveyance or by operation of law, and  may
be bequeathed by will or pass as personal property by the applicable laws of
intestate succession." In this case, it is likely that the copyright in the
photographs (assuming the photographers were employees and not contractors)
was a corporate asset that passed, perhaps unknowingly, to one of the
successor companies.

Most of all, Richard is right that the issue here is one of risk management.

Peter B. Hirtle
pbh6@cornell.edu


I strongly agree with the charaterization of copyright issues as "risk
management." I think many archivists worry overmuch about technical
violations of copyright that, in reality, are exceedingly unlikely to have
any negative consequences.

Just out of curiosity: can anyone cite any recent lawsuits against archives
for copyright infringement?

Thomas J. Wood
Archivist
Archives/Special Collections LIB 144
University of Illinois at Springfield
P.O. Box 19243
Springfield IL 62794-9243
217-206-6520 | wood@uis.edu | http://www.uis.edu/library/lib-arch


This sounds very similar to the type of thing that happened when I was
working at the Ohio Historical Society from 1979-1985. I was working in the
Audiovisual dept.-later absorbed into the Mss. and State Archives
depts.-when we took in a huge collection of glass plates and nitrate
negatives from Youngstown Sheet and Tube. YS&T had been taken over by a
company in Texas as I recall, and they were closing up shop in Youngstown.
So, we rented a U-Haul and drove to Youngstown to collect all this
photographic stuff. I don't recall whether there were other records. I was
just dealing with the photographic stuff.
The company photographer of YS&T took all these pictures, including some
used in in-house publications. I even found a photo which he took of his
photo lab at the plant.

Anyway, the original company held the copyright as I recall. You could check
with OHS in Columbus to find out what their Deed of Gift says.

Good luck.

Kathleen F. (Kit) Leary
Archivist
Oregon Shakespeare Festival
P.O. Box 158
Ashland, OR 97520
541/482-2111, ext. 266
Kitl@osfashland.org
www.osfashland.org


My understanding is that unless the copyright protection on the photos has
expired, the photographer retains the rights. If they have passed into the
public domain, then the possessor of the picture 'owns' it and reproduction
rights for that print or negative.

Wayne Miller
Plattsburgh State U of NY

Best wishes,

Thomas Berry, Archivist
Historical Construction Equipment Association
16623 Liberty Hi Road
Bowling Green, Ohio 43402
Phone 419-352-5616
Fax 419-352-6086
tberry@hcea.net
http://www.hcea.net

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