The copyright office has a sense of humor…

15 07 2008

While much of the copyright office seems to be serious business, and even sometimes scary, I found this funny nugget in the FAQs

Q: “How do I protect my sighting of Elvis?

Answer: “Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. Just send it to us with a Form VA application and the filing fee. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph. .”

Yeah… I’ve got a better idea… Just send ME the photo.

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3 responses

13 08 2008
Max Schulte

Hi Alicia,

I just read your article in New Photographer regarding orphan works. Thanks for taking the time to share your work and experience.

As a photographer who also collects images at estate sales (chromes, negatives, prints) I was wondering how those images might fall into the “orphan works” issue.

As images that were sold by the estate, does the copyright transfer to me with the bill of sale?

I have been collecting images for about 8 years now and look to either use the images for a masters project, or sell for art prints.

If you have any feedback or resource that might help shed some light on the rights I have to the images it would be very helpful.

Thanks for all you time,
Max

13 08 2008
Alicia Wagner Calzada

Max,

Thanks for the question. In general, purchasing a print or even a negative or chrome is never the same as purchasing the copyright. You might have a fair use defense for using them in your masters project, but you would be violating the copyright if you make reproductions from them and sell them. You can, however, always resell the same physical print, neg, etc., that you purchased.

Think of it as two kinds of property – first, the physical property, which is the print or slide, and second, the intellectual property, which is the right to reproduce, the ownership in the creative expression of the image. You bought the first part of property, but not the second.

Keep in mind that any orphan works legislation is far off, and the language of the law is not settled, so you should not rely on this to be a defense. If it does pass, it is likely that most of what you have would fall under the orphan works defense, but you would have to fulfill the requirement to do a “diligent search,” for the copyright holder. One of the problems with any new legislation is that the standards are not always clearly defined (one of my complaints about OW). You don’t want to be the guinea pig for determining what the “diligent search” standard is.

Practically speaking, the reality of your situation is that for you to be sued, someone would have to recognize the image as their own (or something that they held the copyright to), have registered a copy with the copyright office and be prepared to pursue the issue against you. It doesn’t seem likely- but that would be an assumption, and a gamble, and would not help you if someone decides to pursue an infringement case.

I can think of a few scenarios where a negative might be sold by someone who didn’t hold the copyright- for example if a newspaper staff photographer kept their archives at home, then passed away and the negatives just stayed in the family- the newspaper still owns the copyright, even though they didn’t have physical possession of the negatives.

I would definitely consult with an Intellectual Property attorney before you publish or reproduce them in any way (as a reminder, I am not a lawyer yet).

14 08 2008
Max Schulte

Thanks so much for your advice. This is very interesting.

I’ve book marked your blog so I can check in now and then.

I have most of the names of the amateur photographers who’s work I’ve collect. I “assume” a death notice from the paper would prove “diligent search”. A call to a Intellectual Property attorney is a safe bet. Love your guinea pig analogy.

Thanks for all your help, and good luck in your future as a lawyer.
Max

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