Well I was pretty certain it was in public domain or I wouldn't have even considered using it. Even now, if I can find out who took it I'd gladly pay them the going rate copyright still valid or not. I still might not if I can find one that I like as well that I can find the photographer. I would want to be paid, and if I can turn up a family member of the person that took it, I'll treat them the way I'd want to be treated. Still time has put a limit on choices as it often does.
Now the orphan works bill that I read parts of was so much broader, and so many possibilities for unintended outcomes that it hopefully will be reworked. This image is easy to get an approximate date because of the people and the knowledge of a couple of people that are still alive. Most images not so, and when you consider the ability to remove metadata, creating an entire class of orphan works that is recent and where people are still alive and can be found.
Add in all the changes of copyright law over the years, and the confusion mounts even further.
-------- Original Message --------
Subject: RE: copyright question
From: David Dyer-Bennet <dd-b@xxxxxxxx>
Date: Thu, August 26, 2010 9:18 am
To: List for Photo/Imaging Educators - Professionals - Students
<photoforum@xxxxxxxxxxxxxxxxxx>
On Wed, August 25, 2010 23:41, Mark Lent wrote:
> You don't have to register an image to have copyright... It is a "given"
> when the image is created. That being said, you will typically have more
> "teeth" legally if you register copyright your images. Typically,
> copyright
> extends to the life of the creator (and in this case...) 50 years before
> it
> falls into the public domain. Now, it's 80 years, if I remember correctly
> (Specifically, the Bono Bill, introduced by Sonny Bono shortly before his
> death and passed afterward). So, my guess is that if the image was made in
> the 1940's, you should be OK. To ensure that's bulletproof, check with a
> lawyer who practices copyright law.
70 years. And you're describing the current Berne Convention copyright
regime, which the US joined in 1978 or some such (the extension to life+70
was much more recent, with the Bono bill as you say).
Things were totally different before then. And you'll notice that "the
1940s" is before then. You did have to register copyright, and the term
was much shorter (as of 1909, an initial term of 28 years, plus a renewal
term of 28 years, for a maximum total of 56 years).
If a work was in copyright on 1/1/1978 (when the big change took effect)
then it gained protection under the new terms (so copyright would extend
to the death of the creator plus 70 years). If a work was legally an
"unpublished" work in 1978, then it also gained protection under the new
terms (because under the new terms copyright exists from the moment the
work is fixed in tangible form; this was not true under the old laws).
If it was already in the public domain then, then it remains in the public
domain now.
Remember the relatively recent fuss about the "orphan works" provisions
that lots of photographers were up in arms about? This is exactly the
situation that was designed to correct; works with no locatable creator,
which may be in copyright.
If it's a commercially taken portrait from the 1940s, of which copies were
sold to clients, it's nearly certain that it has lapsed into the public
domain -- probably it was never registered in the first place, and it's
nearly certain that the registration was never renewed. So it would have
lapsed at most 28 years after it was taken. "Sometime in the 1940s" plus
28 years is BEFORE 1/1/1978, so it was out of copyright on that key date,
and thus would be out of copyright now.
--
David Dyer-Bennet, dd-b@xxxxxxxx; http://dd-b.net/
Snapshots: http://dd-b.net/dd-b/SnapshotAlbum/data/
Photos: http://dd-b.net/photography/gallery/
Dragaera: http://dragaera.info
