Discussion:
What is the name of your state?What is the name of your state? New York
I inherited an old, large photograph of turn of the century New York City. The photograph is stunning and captures a historically significant event. It was done by a fairly famous local photographer, and below his name it says “Copyright 1903”, and it has a plate number. I checked with a New York museum which has approximately 800 pieces of his work, and they say that the plate number and date match, but they have no record of this particular picture, nor are they aware of any known copies (apparently the original glass plate negative no longer exists). I have also performed significant searches for photographs of the event, with no results. I have no intention of selling the original as it was passed down to me, but I am wondering about making copies of it for sale. The good new is that, as far as I can tell, the picture would now be in the public domain since it is over 100 years old, so I should have no problem legally doing this. The bad news is that, well… the picture would be in the public domain, and I suspect that once a few copies of it are out in the public, it will be frequently and freely reproduced, certainly appearing in any decent historical picture book of the city. Perhaps I’m dreaming, but let’s assume for the moment that this is some undiscovered piece of pictorial history that would be in high demand, and that the image itself might have some financial value to it.
Is there any way that I can copyright or protect this work in its original form? If not (and I suspect not since obviously I didn’t take the picture) - there is plenty of room to modify it (cropping, hand tint from b&w to original colors, joining it to a modern photo I could take of the subject, etc) without losing its significance. So would it be possible to copyright it if I modified it enough from the original? If so, how much modification would it require? Would I need to keep the original photographers name and copyright information on the picture?
Thanks for any advice or suggestions you can give.
Answer:
The bad news is that, well… the picture would be in the public domain, and I suspect that once a few copies of it are out in the public, it will be frequently and freely reproduced, certainly appearing in any decent historical picture book of the city. That is correct.
Is there any way that I can copyright or protect this work in its original form? Well, you could keep it locked away in your house so that only you could see it. But other than that, no. The copyright in a creative work vests initially in the creator, and the creator alone -- he can assign the copyright later, but noboby else can "create" a copyright in a work they themselves did not create.
Further, once a work passes into the public domain, not even the creator can bring it back into the world of copyright protections...
If not (and I suspect not since obviously I didn’t take the picture) - there is plenty of room to modify it (cropping, hand tint from b&w to original colors, joining it to a modern photo I could take of the subject, etc) without losing its significance. There are no cut-and-dried rules as to "how much" change is required to make a derivative work. Cropping is almost certainly insufficient. Colorizing is also probably insufficient unless the colorization scheme was a "creative" scheme, such as purple houses and red horses, something artistic like that. But even then, even if you could obtain a copyright, someone could take your colorized work, and un-colorize it, or do a "real" colorization of it, and you couldn't stop that from happening, since you wouldn't own the rights to the underlying work, only the particular abstraction of the work.
I don't know what you mean by "joining it to a modern photo." However, in general, creating a derivative work that is seperately copyrightable generally requires some level of "creative" input, and simple mechanical changes like cropping, "real" colorization, those sorts of things, will never be sufficient. And furthermore, under no circumstances will you ever own a copyright to the underlying work. So, if the underlying work is somehow "extractable" in some way from your copyrighted work, then your "derivative" work will only provide protection to people who aren't clever enough (or willing) to extract the underlying image...
So would it be possible to copyright it if I modified it enough from the original? If so, how much modification would it require? Yes, but see above, and realize you can never copyright the underlying image.
Would I need to keep the original photographers name and copyright information on the picture? Copyright info, no, photographer's name, no, but it's always nice to give credit where credit is due... If the photographer was alive he might have a cause of action for misattribution if you distributed the work without his name, but if the work was done in 1903...
Summary: you can't re-copyright, or otherwise protect, a work that is already in the public domain. That's the whole point of copyright law, after all -- you give people the incentive to create by allowing them to protect (and presumably profit from) their creativity for a limited time, but the tradeoff for that protection is that at some point, it goes out into the world for others to freely use and build upon. That's why copyrights aren't perpetual (even though they sometimes seem like they are...)
Answer:
Thanks very much for your thorough and concise explanation divgradcurl. I suspected this might be the case, but copyright law does make sense when you explain it this way. My public domain work will probably remain on my private wall for another 100 years. Still, I wonder what would happen if someone discovered a really significant picture like Custer fighting his last stand, the Titanic crunched into the iceberg, or Amelia Earhart as a POW. With no copyright protection available there doesn’t seem to be much financial impetus to releasing a previously unknown public domain picture. But this becomes more of a business/marketing question now – at least I know the answer doesn’t lie in copyright law. Thanks again.
Answer:
Still, I wonder what would happen if someone discovered a really significant picture like Custer fighting his last stand, the Titanic crunched into the iceberg, or Amelia Earhart as a POW. With no copyright protection available there doesn’t seem to be much financial impetus to releasing a previously unknown public domain picture. Does there always have to be a financial incentive? Seems like, at the very least, you would be (temporarily) famous, which should be worth something!
Besides, it would seem that by taking such a photo, and allowing it to be seen by others in the field, you would be advancing the state of knowledge in that field, and, after the photo was properly authenticated, that would probably make the original very, very valuable...
Answer:
The above impressions I would agree with - the work (C) 1903 is in the public domain. (It does not matter that no one else besides you has seen the work. The fact is that the copyright term has expired and so it is in the public domain as a result.)
If I were advising a client on this matter, I would suggest the following - what about the DMCA (Digital Millennium Copyright Act)? The DMCA protects against unauthorized access to works. If you digitally "encased" the photograph in such a way that there were a mechanism which prevented copying, reproduction, etc., of the photograph, then you may have enforceable rights under the DMCA.
It is an interesting question as to whether the DMCA would protect such a public domain work. See, e.g., <http://www.whostolethetarts.com/archives/000348.html> (Adobe e-book of Alice in Wonderland, an otherwise public domain work, possibly protected by the DMCA).
I practice high technology IP law and I can tell you that copyright law is not a cut a dry matter. And, sometimes, there is room for creative lawyering. Now, what would be a sufficient copy-protection "device" would require some legal analysis.
(This provides me with some interesting thoughts about an IP article that I will be writing in the near future.)
For the most part, I understand that a lot of people are against the DMCA. But, it is also interesting to view the DMCA as being helpful and useful.
Answer:
If I were advising a client on this matter, I would suggest the following - what about the DMCA (Digital Millennium Copyright Act)? The DMCA protects against unauthorized access to works. If you digitally "encased" the photograph in such a way that there were a mechanism which prevented copying, reproduction, etc., of the photograph, then you may have enforceable rights under the DMCA. But the problem with using the DMCA as your protection scheme is that once it is "cracked," and the underlying picture extracted into a non-protected format, then the extracted picture (seperate from the protection mechanism) could be freely distributed, and you couldn't use the DMCA to go after those people who are freely distributing the extracted picture -- you could only enforce the DMCA against the "cracker," and then only if you knew who the cracker was. Once the protection is cracked and the picture tunred into a JPEG or TIFF floating around the Internet, there's nothing you could do. So would trying to come up with some sort of DMCA protection scheme be worth it in the long run?
Adobe used a public domain work because it was cheap, not because they planned to actually try and protect the underlying work -- they just wanted to show off the ebooks technology. Skylarov got in trouble fro cracking the ebooks format, allowing the ebooks to be read by other programs -- had he simply cut-and-pasted the text of the book into, say, Word or something, he still might have been in trouble for cracking the ptoection but then anyone else could have freely distributed the Word file he created, because THAT wouldn't be protected.
For the most part, I understand that a lot of people are against the DMCA. But, it is also interesting to view the DMCA as being helpful and useful. I think the DMCA may be helpful and useful when dealing with things like copy protection on DVD's and the like, but I disagree that its helpful or useful when being used to circumvent the public domain...