Friday, January 10, 2014

Old photos: What constitutes "published"?

Chekov family - Anton in white jacket
Dear Rich: Can you give a little more information about what constitutes “published?” For example: If a family photo is taken in 1888 and not published at that time, but, say, 90 years later, someone who is not the copyright holder prints it in a book, is it now considered published, and since it was created before 1923 it’s public domain? Or is it still considered unpublished since the copyright holder is not the one who published it and therefore will not be public domain until 70 years after copyright owner’s death? Does it make a difference whether the person who publishes it does so with or without the consent of the copyright holder (assuming one exists)? And how does Internet posting count in all this? If the copyright owner has not consented to the publication, then the work is not "published" for copyright purposes. That's because only the copyright owner has the right to  publish (that is, distribute more than limited number of copies to the public). As we mentioned in a related post, the only way a work from the 19th Century would still be protected would be if it (1) was first published after 1977 and before 2003, in which case the work is protected until December 31, 2047. (Notice is required for works first published before March 1989.), or (2) was first published after 2002 and the photographer died after 1943. There are some other possibilities for continued protection and you can figure them out using the public domain chart. As we mentioned in our post, it's highly unlikely copyright will be asserted in material more than 90 years old because it is usually difficult to trace the chain of copyright title.
What about Internet posting? As we mentioned in another recent entry,  posting material on the Internet is generally considered to be a publication, assuming there is a means of reproducing or downloading the material.
P.S. Dept. A minor correction in your question ... to qualify as PD, a work must be published (not created) before 1923. For more help, check that helpful PD chart, we cited above.
P.P.S. Dept. We hope you don't mind that we cut your question in half. We are followers of FDR's maxim, “Be sincere. Be brief. Be seated.”

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