Thursday, May 8, 2014

Color Me Copyrightable

Swedish artist Sanna Dullaway popularized the colorization of
archival black and white imagery. Check out
her series on Abraham Lincoln, created for TIME Magazine.
Dear Rich: I want to start a business colorizing old photos and maybe selling or distributing them. Almost all of the photos were originally attributed to a photo agency known as Acme and they're all over fifty years ago. Can I copyright the photos that I colorize? It is possible to register a colorized black and white photo with the Copyright Office provided that the results "reveal a certain minimum amount of individual creative human authorship." Analogizing as to how the Copyright Office processes colorized motion pictures, your work would have to demonstrate (1) numerous color selections made from an extensive color inventory; (2) a range of additional colors that is more than a trivial variation, and (3) that the overall appearance of the picture must be modified.
Who owns the copyright? A colorized image is considered a derivative work and your rights in the imagery extends only to what you've added -- the color choices. If the underlying work is in the public domain, you're free to do what you want with it. If the work is not in the public domain, you will need permission from the copyright owner to reproduce or sell the derivative (or risk a charge of infringement). Works published before 1923 are in the public domain, as are works published from 1923 through 1963 that were not renewed. On the other hand, the rights to Acme Newspictures were acquired by the Bettman Archive, which is now part of Corbis. (This was a result of transfer of ownership of United Press International which owned Acme). Considering the thousands of photos that were generated by Acme over the decades, it's very likely that many of the ones you are interested in have not been renewed.  (It's estimated that less than 10% of all works were renewed.) But it may be difficult to sort out which Acme photos are protected, especially if you try to research the matter by yourself.

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