Expert: Shannon Moore - 5/22/2008

Question
My grandfather had his picture taken in England in 1914, while in his army uniform.  Can I have the picture reproduced for family use?

Answer
Dear Joe,

Here's what the Copyright Office has to say about works created 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on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form.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...Public Law 102-307 makes renewal registration optional. Thus, filing for renewal registration is no longer required to extend the original 28-year copyright term to the full 95 years."

http://www.copyright.gov/circs/circ1.html#hlc -- Link to above quote

However, your usage may fall under fair use: "Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work."
http://www.copyright.gov/fls/fl102.html -- Link to above quote

You mentioned reproducing it - the Copyright Office has something to say about that as well:

"My local copying store will not make reproductions of old family photographs. What can I do?
Photocopying shops, photography stores and other photo developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued. These fears are not unreasonable, because copy shops have been sued for reproducing copyrighted works and have been required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if they reproduce a work even if they did not know the work was copyrighted.

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession."

http://www.copyright.gov/help/faq/faq-fairuse.html#copying -- Link to above quote

This response ended up being a bit more longwinded than I meant it to be but I wanted to be sure to address every relevant point.

Please let me know if I can assist you with anything else. Thank you so much!

Warmest regards,
Shannon Moore
http://www.tmexpress.com
http://tmexpress.blogspot.com