Monday, December 7, 2009

This Is a Test: The Right to Publish Old Photos

12/09/09 - Note this answer has been corrected following initial publication.
Dear Rich: I recently took a public relations accreditation test that included the question below. The answer was D. If the photos were in company files why can't it be argued they were paid for? If the photos were 20 to 100 years old does the copyright still hold? 

To celebrate its 100th anniversary, your company wants to publish a coffee-table book of photos depicting the company's history. You dig through the files and old annual reports and find many photos, some of which have never been published. Some of the unpublished photos are dated and stamped on the back with the name of a photography studio that has been out of business for 20 years. When you consult with your publisher about the most effective way to reproduce these particular prints, the publisher says they cannot reprint them without the original photographer's permission. You are unable to find the original contract between the company and the photographer. Can you reprint the photos without the original photographer's permission?
A. Yes, if you pay the publisher a fee to reproduce the photos.
B. Yes, the company paid for the photography and therefore owns the prints.
C. Yes, you can reproduce the photos if you give proper credit to the photographer.
D. No, the photographer or heirs own the copyright and must grant permission to reproduce the unpublished photographs. 

The answer to your question within a question is that D is the best (or "most correct") answer.  We understand your desire to argue the point - that's one of the reasons that the Dear Rich Staff quit teaching - but unless there is documentation showing that the photographer transferred rights to the company, the photographer retains copyright. The act of paying for a service such as photography does by itself not grant copyright.
A better and much more long-winded answer would have been:
E. Probably Not. If the photos were subject to a work for hire arrangement executed before January 1, 1978, it's possible that the republication would be permitted since such agreements are interpreted more "loosely" than under the current Copyright Act. However, as a general rule, photos are protected for the life of the author plus seventy years (although if the U.S. ever passes Orphan Works legislation, this whole question will be moot). 
Ennyway we're happy to learn that people in public relations are accredited and hope you passed your test and are earning 20% more than your colleagues. (Also we hope you will indemnify us in case the accreditation tester sues us for copyright infringement.)