Selling prints of vintage pics - copyright issues?

hifipix

Hi everyone. A friend of mine has a private collection of original vintage hollywood celebrity photographs from the 30s & 40s. Some are by noted photographers of the time, and others are unknown. While I think selling the originals as a one-time sale, i.e. via ebay, is probably not much of an issue, I'd like to scan & restore some, and use Smugmug to sell less expensive reprints, on an unlimited basis. I'm trying to find the legal problems with this, or rather, the steps I need to take to do it legitimately.

My main point of concern is this:
http://www.copyright.gov/circs/circ1.html#hlc

I'm not seeking genuine legal advise here, but hopefully some pointers in the right direction.

Edit: I should add that this friend of mine recieved these from a good friend of his who is a relative of one of the photographers.

mercphoto

hifipix wrote:

Hi everyone. A friend of mine has a private collection of original vintage hollywood celebrity photographs from the 30s & 40s. Some are by noted photographers of the time, and others are unknown. While I think selling the originals as a one-time sale, i.e. via ebay, is probably not much of an issue, I'd like scan & restore some, and use Smugmug to sell less expensive reprints, on an unlimited basis. I'm trying to find the legal problems with this, or rather, the steps I need to take to do it legitimately.

My main point of concern is this:
http://www.copyright.gov/circs/circ1.html#hlc

I'm not seeking genuine legal advise here, but hopefully some pointers in the right direction.

Not being a lawyer, so keep that in mind, but "Copyright" literally means the right to control copies of your work. And you are attempting to copy someone's work. Phrase the question the other way around. You create a great photograph and sell a print. Someone else scans it and sells the "reprints". How would you feel?

On the other hand, copyright is only valid for a certain period of time, after which things go into the public domain. I personally feel that is a good thing - things should not be protected forever. I'm not sure, however, how long copyright is valid for. If these prints are beyond that age then they might be in the public domain. If so, you should be free to do whatever.

SuperJared

I think the problem here lies in that you don't have the negatives. As far as I know, whomever holds the negatives holds the copyright to the photograph. You'd have to find out if these copyrights were ever renewed with the copyright office.

This may be a lost battle.

wxwax

95 years from the time the shot was made, until you're allowed to do what you're proposing.

Catto

Copyright question - rights of the models
Not completely convinced about a couple of those answers - it is entirely possible to own the negatives but not the copyright in them, and I've never heard 95 years related to anything before. Usually it's fifty years from the death of the creator of the image, which in this case probably isn't up yet, and in many cases you don't know who took them, so it'd be hard to find out.

But there are a couple of secondary issues - first whether the studio owns copyright (if these are publicity stills), and second whether the actors shown have any character merchandising rights over the use of their image, which is usually the case. That means they can also permit or prevent the use of their images in merchandise etc - and that may have been handed on to their estates in the case of their deaths.

Honestly - it sounds like a minefield, which wouldn't be worth entering. Unless you took the photos yourself, there are very few situations in which it's legal, or profitable, to copy and sell other people's work.
R

p.s. I'm not a lawyer, but I would certainly recommend seeing one before you do this. Studios protect their copyright vigourously.

Angelo

anything shot in the 30s or 40s would not yet meet the test of "artist's life + 70 years"

If releases were signed by the subjects at the time of sitting they signed the releases for the original photographer and those releases don't orphan to a subsequent generation.

cambler

SuperJared wrote:

I think the problem here lies in that you don't have the negatives. As far as I know, whomever holds the negatives holds the copyright to the photograph.

With all due respect, this holds no truth whatsoever.

The copyright owner is the person who owns the copyright. Literally. There is no tangible component at all.

Catto

Angelo wrote:

If releases were signed by the subjects at the time of sitting they signed the releases for the original photographer and those releases don't orphan to a subsequent generation.

Hi Angelo - I'm a little unclear on what you mean by '...don't orphan to a subsequent generation', but there is also a possibility that, even if a release was signed at the time, it could be challenged.

For example, if the release was obtained for the purposes of publishing in Life Magazine, once, in 1948, then it would be hard to argue that it was valid for creating merchandise now. Even if the language of the release was 'all future rights' etc, if the person signing it was given the impression verbally that the purpose of the image was limited to that publication, it could be argued that the release was obtained under false pretenses and therefore invalid.

Anyway - it doesn't sound like the original poster has any releases at all, just a collection of prints; in which case, no commercial use would be a good idea...
R

wxwax

Catto wrote:

Not completely convinced about a couple of those answers - it is entirely possible to own the negatives but not the copyright in them, and I've never heard 95 years related to anything before.

Read from his link.

Works Originally Created and Published or Registered before January 1, 1978

Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105-298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years.

This jives with what our attorneys say.

Angelo

Catto wrote:

Hi Angelo - I'm a little unclear on what you mean by '...don't orphan to a subsequent generation', but there is also a possibility that, even if a release was signed at the time, it could be challenged.

For example, if the release was obtained for the purposes of publishing in Life Magazine, once, in 1948, then it would be hard to argue that it was valid for creating merchandise now. Even if the language of the release was 'all future rights' etc, if the person signing it was given the impression verbally that the purpose of the image was limited to that publication, it could be argued that the release was obtained under false pretenses and therefore invalid.

Anyway - it doesn't sound like the original poster has any releases at all, just a collection of prints; in which case, no commercial use would be a good idea...
R

That was exactly my point... a release is not a blanket right to anyone, forever. It would've had a limited scope. So even if the 70 years has past beyond the photographer's death, the subject's estate could intervene in any attempt to sell copies today.