Using Published Photos on DVD

[Finster]

Hello,

I produced a documentary on the history of a town which I plan to release on DVD for sale through local businesses. In addition to new material (video and photos), I utilized old photos that were published in a book about the town. This book had two authors and I got verbal permission from one of the authors to go ahead and use whatever photos I wanted without limitation. He did not state he had the authority to speak for his co-author, but he implied that he did, saying something like "Mr. X won't mind, just go ahead and use what you like."

So, after spending months and countless hours on research and production, I'm ready to release the DVD. Out of gratitute, I gave both authors "thank you" credits at the end of the documentary.

Now, both authors are trying to prevent me from releasing the DVD because they are afraid it will interfere with sales of a sequel book they are planning to publish. They are also stating that they never had the right to grant permission for my use of the photos in the first place since they suddenly remembered that their contract with their book publisher prohibits them from preparing, publishing or authorizing the publication of any work "which may be an expansion or an abridgment of or of a nature similar to the work, or that is likely to affect prejudicially the sales of the work or to otherwise adversely affect the value of the rights granted to the publisher hereunder."

Let me state that the photographs in question are very old. Many of them from the 19th and early 20th century. I know they were taken from private sources, public sources, old postcards and previously published books. I am sure that these authors could not possibly have obtained permission to use the photos from the original photographers or copyright owners and it is my understanding that photos made before a certain date are in the public domain anyway. One of the authors, in fact, told me they did not obtain any photo rights.

My feeling is that although they published a book which is under copyright, the photos they used in the book are not and they have no legal copyright claim to them. I would like to remove their credits from my documentary and release my DVD as I don't want to see all of my hard work go down the drain.

The book lists the copyright owners as the authors, not the publisher.

Help!

 

[Michael Wechsler]

Hello,

I produced a documentary on the history of a town which I plan to release on DVD for sale through local businesses. In addition to new material (video and photos), I utilized old photos that were published in a book about the town. This book had two authors and I got verbal permission from one of the authors to go ahead and use whatever photos I wanted without limitation. He did not state he had the authority to speak for his co-author, but he implied that he did, saying something like "Mr. X won't mind, just go ahead and use what you like."

So, after spending months and countless hours on research and production, I'm ready to release the DVD. Out of gratitute, I gave both authors "thank you" credits at the end of the documentary.

Now, both authors are trying to prevent me from releasing the DVD because they are afraid it will interfere with sales of a sequel book they are planning to publish. They are also stating that they never had the right to grant permission for my use of the photos in the first place since they suddenly remembered that their contract with their book publisher prohibits them from preparing, publishing or authorizing the publication of any work "which may be an expansion or an abridgment of or of a nature similar to the work, or that is likely to affect prejudicially the sales of the work or to otherwise adversely affect the value of the rights granted to the publisher hereunder."

Let me state that the photographs in question are very old. Many of them from the 19th and early 20th century. I know they were taken from private sources, public sources, old postcards and previously published books. I am sure that these authors could not possibly have obtained permission to use the photos from the original photographers or copyright owners and it is my understanding that photos made before a certain date are in the public domain anyway. One of the authors, in fact, told me they did not obtain any photo rights.

My feeling is that although they published a book which is under copyright, the photos they used in the book are not and they have no legal copyright claim to them. I would like to remove their credits from my documentary and release my DVD as I don't want to see all of my hard work go down the drain.

The book lists the copyright owners as the authors, not the publisher.

Help!

I'm happy to hear about your DVD -- sounds great and very interesting!

Regarding the pictures... you've got a problem. I'm not sure anyone can help you get what you want easily. To begin, the authors of the book cannot give you rights that they do not have. E.g., if they only were only granted the right (perhaps from the photographer or in this case the publisher) to use the photos in their book, they cannot give you rights to use the photos in your book. You need to find out who owns the rights to publish the photos and obtain rights from them. Whether these people are reasonable is beyond anyone's control. You may also want to inform them that your DVD will be published, with or without their photos, so if they are worried about the DVD biting into the sales of their book it's going to happen anyways. Thus, they might as well be compensated to some extent otherwise be shut out. Perhaps then they will budge. But that is really all you can hope for. No matter what the author may have said, you should have obtained written permission that, if properly drafted by a legal professional, would include the signator's warranty or "guarantee" that he/she has the rights to grant you the right to do what you want. You can probably guess how many people are reluctant to provide those rights when it involves pen hitting the paper and only then can you guess whether they REALLY were the right person to talk to. In a way, they are doing you a favor. You could just as easily get sued and your only remedy would be to include these people in a lawsuit and go after their assets. Better to know right from the beginning and decide what you can and cannot do. Good luck and let us know how things turn out.