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Photo US Copyright question clarification help

Discussion in 'Copyright, Trademark, Patent Law' started by Joesph12345, Sep 20, 2022.

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  1. Joesph12345

    Joesph12345 Law Topic Starter New Member

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    Jurisdiction:
    Texas
    Hello:
    I have some photography copyright questions I am hoping to get answered.

    I have a family member's film negatives that were originally taken back in 1989-1993.

    As fas I know none have ever been published and he was the photographer (I do not believe work for hire either).

    He gave the film negatives to me and I have started to digitize some over the last 2 years and offer prints of some of them for sell on a POD 'Print on Demand' website and have posted others that are digitized just on social media platforms.

    So my questions are as follows:

    The US Copyright Office has a 'Published vs Unpublished' distinction that needs to be made.

    So does offering a photo print for sell online mean that it is now a 'published' photo?

    How about just posting a photo on social media platforms; is it considered published or unpublished?

    If it is considered 'Published', do I have to use the publish date when I offered it for sell online 2 years ago, or when the photo was original captured 30+ years ago 1989-1993?

    If it is required to use the date that I offered them for sell (about 2 years ago) and not 30+ years ago, should the original photographer (my family member) register the photo copyright himself (instead of myself doing it on his behalf) and is he allowed to use the original date of capture 1989-1993 when registering, regardless of my actions offering some for sell?

    Thanks for your help. I appreciate it.
     
  2. army judge

    army judge Super Moderator

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    You need the services one receives by retaining her/his attorney.

    Don't trust your future to unknown entities, seek the advice and counsel of an attorney licensed in Texas.

    If you act on the counsel of Mr. XXX or Ms. ZZZ, over complex legal entanglements, get sued, you only have yourself to hold at fault.
     
  3. zddoodah

    zddoodah Well-Known Member

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    Sounds like this family member is still alive. Correct? What is the exact nature of the relationship between you and this person? Are these developed negatives? Sounds like they are.

    Most importantly, has this family member either verbally or in writing transferred or purported to transfer any rights of copyright to you? Until and unless you say otherwise, I'll assume the answer is no.

    Huh? For works created on or after January 1, 1978, publication is not an element of copyright protection. Why are you attributing significance to the publication status (or lack thereof) of these photos?

    "'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication." 17 U.S.C. section 101.

    I'll await your answer to my questions above before addressing the rest of your questions.
     
  4. flyingron

    flyingron Well-Known Member

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    To amplify on what Z says, just because you own the negatives doesn't give you the write to make/distribute copiles. It's analogous to me buying original art. I can hang it in my house, but I can't sell prints of it.
     
  5. Joesph12345

    Joesph12345 Law Topic Starter New Member

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    Thanks everyone, let me try to answer all of the questions:

    To Z:
    These are his film negatives. I am in the process of digitizing these negatives into positive images.
    Yes the relationship is my brother and he is still alive and he we get along well. He gave me his film negatives and said go ahead and digitize them and do what you want with them. He would be more than happy to sign a transfer notice, but one has not happen other than verbally. But if he needs to retain those rights he will or if it's better for him to transfer them to me he would. That's not an issue to me.

    "The US Copyright Office has a 'Published vs Unpublished' distinction that needs to be made."
    At coryright.gov they are asking everyone that submits photos if they are 'Published' or unpublished'. I'm just trying to find out o what's the difference between the Published and Unpublished. Not sure it makes a huge difference, but there has to be a reason why they ask for this clarification.

    Hope this helps.

    To flyingron:
    You are correct, just because I have the film negatives does not mean I own the rights. In this case my brother and I are very close, so if he needs to transfer the rights to me so I can send them into the copyright office, he would do it, or if he needs to retain those rights and I can walk him through the copyright process, he would do that as well.

    Thank you!
     
  6. Zigner

    Zigner Well-Known Member

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    There is no reason that he cannot assign all the rights to you. Nobody will even know that it happened in the background, but it will protect you if the two of you should ever have a falling out.
     
  7. Joesph12345

    Joesph12345 Law Topic Starter New Member

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    Yes that's true.... My original questions are about submitting the photos to the copyright.gov office via their cumbersome website and their site not having the ability to answer questions and that's why I turned to everyone here to see if you could answer my questions about submitting the photos to their site, published vs unpublished definition, date to use, etc....
    Thanks....
     
  8. zddoodah

    zddoodah Well-Known Member

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    It doesn't matter a ton. However, just so you know, unless you have something in writing, the extent of your legal rights are as a non-exclusive licensee. If, for example, you put the positives online and someone used one in an infringing manner, you would have no legal recourse.

    It's been a while since I registered a copyright, but I think it's just a matter of checking one box or the other. I think they also have bulk registration now, and you use a different online form.
     
  9. Joesph12345

    Joesph12345 Law Topic Starter New Member

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    Yes this is one on my main questions that I'm banging my head against the wall. I can bulk publish the photos, up to 750, I think, but they ask, again the published vs unpublished stuff. Now I can probably check one vs the other and it may not matter.
    I am also confused on the date to put. I would assume it is the date my brother took the photo, 30 years ago, when he has it all documented. But if the copyright office says for example, "Well this photo is 'published' online and you are offering it for sell, so the registration date is really when it went online for sell" and not when my brother took the photo.......
    Am I over thinking all of this???
    Thanks.... appreciate the guidance.
     
  10. Zigner

    Zigner Well-Known Member

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    According to U.S. Copyright Office - Definitions (FAQ):

    What is publication?
    Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first made available to the public. For further information see Circular 1, Copyright Basics, section “Publication.”
     
  11. Joesph12345

    Joesph12345 Law Topic Starter New Member

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    Ok, by this definition, I have some that I guess are considered 'published' as I have some prints for sell on a print on demand site to purchase copies of the print I digitized from the original negative, but I still can't find on their website if the publication date overrides the original copyright date of when the image was originally taken?
    The. website does not give me the option of putting in 1993 as the original date when the photo was taken instead of 01/2020 when I put it online for sell.
     
  12. Zigner

    Zigner Well-Known Member

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    My layman's take on it is that the "publication date" would either be the date that the photos were given to you *or* the date that you first place it online for sale. I'm not 100% sure, but I'm actually leaning towards the date you put them up for sale, as I'm not convinced that transferring them to you qualifies as the publication date. It's possible that it does, though. Again, I am a layman. If you have questions, you should probably speak to an attorney. A short consultation probably wouldn't cost that much and would be of great help to you.
     
  13. Joesph12345

    Joesph12345 Law Topic Starter New Member

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    So let's take myself out of the equation.
    If my brother files the copyright his photos, he would use the date that they were taken.

    To me it's no difference than Ansel Adams taking a photo in 1930 and then publishing it in 1935. Technically (as I see it) as the copyright is 1930.
    You really only register with the copyright office to make life easier if you want to sue and pursue damages as allowed by law. I think it's up to $150K per violation.
    I just don't see how a copyright date can be changed.
    When a photographer clicks the shutter button on their camera he/she is the copyright owner at that date/time. If they publish it years later, the copyright is when they took the photo, not when they registered it at the copyright office nor when they made it available for sell 'published'.
    But I am not a lawyer....
     
  14. Zigner

    Zigner Well-Known Member

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    I thought your question was about what the publication date is. I believe the information I provided addresses that.
     
  15. Joesph12345

    Joesph12345 Law Topic Starter New Member

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    Well I have a few questions that I originally posted.
    What constitutes a 'published' vs 'unpublished'
    And then what date do I use when submitting a 'published' photo. It does not make sense to me that a 'published' photo date overrides when it was originally taken....
    Sorry if I am confusing everyone.....
     
  16. zddoodah

    zddoodah Well-Known Member

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    As I understand it, these are developed negatives that were never printed. If that's the case, they certainly were not published on the dates on which they were taken.

    As to each photo, the date on which the shutter was snapped (i.e., the copyright date), the date of publication (if any) and the date of registration will all likely be different. Also, the copyright office is not going to scrutinize any information you provide. The only thing the copyright office will care about is if you have properly completed the form(s).

    Sure seems like it.

    First, I feel compelled to point out that I quoted the statutory definition of "publication" and provided a link to the statute in my first response in the thread. Second, I don't understand what you mean about "the publication date overrid[ing] the original copyright date." They're two different dates, and neither "overrides" the other.

    You have unintentionally made this a very difficult question. In the 1930s, copyright law was very different, and federal copyright protection only applied once a work was published. Unpublished works were only protected (if at all) by state law. Forget Ansel Adams and focus on what you have. You told us that the photos were taken between 1989-93. Each photo was protected by copyright law (only federal law applies at this point) the instant that your brother pressed the shutter button. Whether or when any photo was subsequently published is largely irrelevant (it's only irrelevant if someone infringed the copyright on a published photo that was unregistered and not registered within a short time thereafter).

    Reasons for registration vary widely. Registration doesn't just "make life easier if you want to sue;" it's an absolute requirement. Registration -- if it happens before infringement -- also provides substantial benefits if you sue for infringement.

    Your reference to damages "up to $150K per violation" only applies to willful infringement of a registered work, in which case you can get statutory damages (in lieu of proving actual damages and profits earned by the infringer) under section 504 of the Copyright Act. If the work is not registered prior to the infringement (or shortly afterward for certain published works), you cannot recover statutory damages (and, hence, must prove actual damages and/or profits to the infringer). Nor can you recover attorneys' fees.

    For works created on or after January 1, 1978, it cannot.

    Bingo.

    I answered your first question in my first response in this thread. As to the second question, "what date do [you] use" where? Submitting a published photo to whom? And, again, there's no overriding anything.
     
    Zigner likes this.
  17. Joesph12345

    Joesph12345 Law Topic Starter New Member

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    Thank you Zddooah!

    I didn't mean to make it this complicated for myself, but I guess I did.
    Thank you for the education, I'm just over here 'bumping into trees', haha.

    I just wanted to make sure that when I register these images with the office I complete the forms correctly which you rightfully point out, that's what they probably really care about.

    About the publication date, the copyright office is confusing me on their videos and instructions with the published vs unpublished nonsense.

    Thanks again everyone, I really appreciate it.



     

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