copy/copyright question
 

Can I legally use another's vintage, one-of-a-kind photograph images in a new book, without consent?.. I'd found these in an online album. Thanks, Steve

pretty easy answer, no , you cannot. its their work. if you ask permission, most people will consent for free.

Maybe not such an easy answer.

There are some online photo hosting/album sites that by the accepting the site's terms of use the user gives up that right and it may be actually public domain.

what i have learned is that if you dont ask permission, if the person finds out, they get defensive and then refuse to let you use it, but would have let you use it in the first place if they were just asked.

Someone used a boxing photo of mine that they got off my website for their ebay listing. I got angry and told them to take it down, they did, but if they would have just asked first I may have allowed them to use it.

I don't know the scenario and what are the photos. If the photos are 120 years old the person who posted them doesn't own the copyrights. There are no copyrights due to the age. In that case, yes, you could use them. If someone post an article he wrote or a photo he shot to his blog, he own the rights to it. But if he posts a baseball photo that's copyright ran out 50 years ago, he don't have anymore rights to it than anyone else. The act of posting it makes no difference.

Now, that doesn't mean it isn't a good thing to ask. I would think many people would allow you to use the photos anyway, perhaps asking you to credit the source.

But as I said, I don't know what are the photos you are looking at and can't comment specifically on them.

Typically, when those sites have fine print requiring the giving up of rights to photos, it's giving up the rights to the operators of those sites. I would be very surprised to see a Terms of Service agreement that put every photo posted to the site into Public Domain.

You also have to consider the source of the photos and whether the poster actually had rights to the image in the first place. They can't (legally) give permission to use a photo that they never (legally) had the rights to. So if it's a vintage snapshot or polaroid, they may very well hold the copyright by default. If it's a news photo or a photo clearly taken by someone else, they probably don't hold the copyright. If it's the latter, even if they give you permission to print the photo, I would make sure they know what they're talking about. Many people are either completely ignorant of copyright laws, or flippant when it's not their rear on the line, or both.

I do a fair amount of selling vintage photos on eBay, and have had the question posed to me on numerous occasions: "If I buy this photo from you, can I use it in my book?" or some variation thereof. My answer is always, "I can't give you permission to do that because I don't have the copyright on the image. I'm just selling a physical print of the image, but transferring ownership of the physical print does not constitute a transferring of rights. I can't/won't stop you from doing whatever you're going to do with the photo, but I also won't come to your defence if it gets you in trouble." In some cases, I may be able to provide additional information that would help them track down the rights owner, but even if I have the original negatives, if I did not take the photo, I don't have the rights to transfer in the first place.

I don't mean to sound like an expert, as I certainly am not. I do know that it's not as simple as "if I see it on the internet, I can use it for free without asking" though. There are many other factors to be considered, including date the photo was taken, how you're using it, who is in the photo, if/which sports team logos are in the photo, etc. The reality may be that, if you re-print the photo, the copyright holder will never see it or raise a fuss, but you asked if you could legally use the photo. So my answer would be that no, legally you cannot print it in your book, at least not without at least getting the poster's permission, and quite possibly jumping through a convoluted series of hoops after that.

This is a very complex copyright issue. The likely key will be fair use. You might want to look at Kelly v. Arriba Soft Corp., 336 F. 3d 811 - Court of Appeals, 9th Circuit 2003 and Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 - Dist. Court, ND California 2008.

Another consideration is that it isn't simple to fight a copyright case. To even maintain a copyright claim the author must first have registered his work with the Copyright Office. Registration is required in order to file a copyright case in Federal court and it must take place before the infringing usage if it is to entitle the claimant to attorneys' fees and statutory damages rights under copyright law. If there was no registration pre-use, the pissed off party will have to prove that he subsequently registered the image, that he suffered actual loss from the infringement, and he will have to eat his own attorneys' fees, which makes a lawsuit just about impossible for a typical person to file. And if the image has been 'published' for too long without registration he will be deemed to have lost his right to register it.

And that doesn't even take into account whether the image in question is actually owned by the person doing the whining. You may not own rights in an image just because you own the photo.

BTW, the above is my personal view and not a professional legal opinion--don't even think of relying on it. In the event you do rely on it I will disavow any knowledge of your actions. This post will self-destruct in ten seconds.

The city of Lincoln used images from my photobucket without asking my permission for their promotion of the preservation of Sherman Field. I definitely would have let them use whatever they want, but it sure irked me the first time I saw the commercial with Joba Chamberlain come on TV showing all of my images. They also used them for a TV program they ran.

http://www.youtube.com/watch?v=nHiqP...548E5B2373D73B

I have also seen a few of my images used on ebay to sell reproductions..I don't think there is anything I can do about it because the images are all pre-1920, but it's still irksome.

My advice to you Steve would be to ask permission, and give credit for the image in your book.

Thanks for all the ideas... Nothing is ever simple!


These are fan snapshots from 1910's
and unduplicated. They're on photobucket, flicker etc

You can certainly use them if they are pre-1923..but you should always ask first IMO.

Agreed. For one thing, they may be able to provide a higher-resolution scan (assuming they have the original photo) that would better suit a print publication.

Rule of thumb: Ask first. Do your due diligence, and keep a record of all correspondence, even if there's no reply. I once wrote to AP because the rights were shown for them on the back of a photo. With no reply, I still used the standard "Courtesy of..." with no consequence. I mean, for a publication with limited or no revenue, what could they possibly expect if there were any legal consequences?