Reproducing and selling 100+ year old historic prints - Ethical?

Discussion in 'Ethics and Philosophy' started by battra92, Jan 12, 2006.

  1. battra92

    battra92 Member

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    To start with a little background, my family has been in this area of the country for quite some time. We actually have roots back as far as the Revolution and even to early settlers of the colonies. Thankfully, this means that we don't hit the immigrant wall of around the early 1900s and my family has collected many old photographs over the years. Mostly the ones I was looking at are from the late 1800s to early 1900s

    What I was thinking of doing was, restoring them and selling them locally as postcards and framed prints. I know the copyrights are long up as the photos are well over 100 years ago and everyone in them is long dead so legally there is no issue in terms of reproduction and selling, but I am wondering whether it is ethical to sell someone else's work. Does the fact that it is history change that?

    Any feedback on this?
     
  2. Dave Parker

    Dave Parker Inactive

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    If any of the images are famous, you may want to check and see if the copyrights have been renewed on any of them, death does not always invalidate copyright and as I remember it, the copyright law was redone a couple of years ago, to go back as far as 125 years, as far as reproduction, that is going to be something you have to make the choice on, if you choose to do it, I would say you would need to note they are not your images and are reproductions of others work.

    Dave
     
  3. battra92

    battra92 Member

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    None are famous, that I know of. The few that I have are from in and around my local area, which is faily small. Many are photographer unknown with some having studio names on them. Methinks this calls for a trip to the historical society.

    I guess while it may seem obvious to me (what with the fact that various buildings are now gone) that is an interesting thing to mention.
     
  4. titrisol

    titrisol Member

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    Legal issues aside, I think it is a great idea.
    If they have a stamp or signature you may want to contact the successors of the photgraphers... otherwise ask a lawyer

     
  5. Dave Parker

    Dave Parker Inactive

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    You never know when a cousin or uncle 17 times removed is going to show up, and if they were to become popular, I can almost bet you, one will claiming that was my Great Great Great Grandfathers picture..

    It is just called covering your bases, also, the historical society would be a good idea as many of them still have rights of ownership on many images of buildings that don't exist anylonger, I do quite a bit of work for one of our local historical societies and you would be amazed at what rights they own concerning images of buildings and such...

    Also, another thing, do you have just prints you wish to reproduce, or do you have negatives, if you have negatives, then copyright is pretty much yours.

    Dave
     
  6. rbarker

    rbarker Member

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    Dave's advice of watching out for silver diggers (the photo equivalent of "gold diggers") is good, I think. A lot depends on the practicality of scale, how the reproductions are used, and so forth. But, thinking about all that legal stuff in advance can't hurt.

    As noted, too, the issues shift around a bit based on what you're reproducing from. If from the original negatives, the legal issues are far more clear. If you will be making copy negs of the old original prints, however, more research might be in order. You might also consider "crediting" the images to something like the "XYZ Family Archives" - just to make it painfully clear that you're not claiming personal credit.

    [​IMG]
    the Barker kids, circa 1895. The young lad in the foreground was my grandfather.
     
  7. battra92

    battra92 Member

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    Thanks.

    No stamps on any of them actually. They are all mostly just prints made onto cardboard backing.

    Here is an example of the type of photo that I've restored so far. The original was ripped in the center, though I believe what's left will outlast any new print I would make so I'm thinking of making actual silver prints out of them if I can get digital negs made up.
     
  8. Dave Wooten

    Dave Wooten Subscriber

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    You should do it!

    also there might be grants available in your state that would help you with the project-book, cards etc...a book that comes to mind for me is"Upon a Quiet Landscape...the Photographs of "Frank Sadorus..published by the Urbana Free Library...66 photographs taken between 1906 and 1912....Sadorus was not even a professional photographer and was considered insane when he died at an early age...he was a very accomplished amateur photographer....Raymond Bial put it together and has published 2 other books of photographs....Ivesdale: A Photographic Essay and also a book "Portraits of Older Blacks in Champaign, Illinois" check with your historical archives council in your area and the state university in your area etc....catalog your images...I think you will be surprised at the reception and encouragement you will receive...especially if the people are identifiable as citizens in your area etc...good luck

    Dave in Vegas
     
  9. nc5p

    nc5p Member

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    Good luck with your project. I love looking at those very old images from 100+ years ago. All that legal stuff really makes me sick as it discourages people like you from doing this wonderful work. Future generations can thank you for giving them a glimpse of history.

    Doug
     
  10. Claire Senft

    Claire Senft Member

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    I do not think this project is advisable. It sounds to me, regardless of your good intentions, to be something that will take a lot of time and effort and little chance of recouping your costs. Then there are the legal issues above and beyond that.

    After all if I were to sue you, and you won, it would still be a headache and costly. If you were to lose it would be a bigger headache and even more costly.
     
  11. battra92

    battra92 Member

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    That's a good point. I think for the time being I'll just restore them for the family archives.
     
  12. athanasius80

    athanasius80 Member

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    I'd say do it. You probably won't make any money, but there's cool stuff to be put back in circulation. Check beforehand about copyrights though.
     
  13. Ian Leake

    Ian Leake Subscriber

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    This thread is as much a commentary on modern US society as on photography. It's sad that fear of being sued seems to be the main decision factor involved. Questions like: "Do these photos have historical interest?" or "Is there a business case for this?" seem secondary to "Will someone sue?"

    My instinctive answer is that if you honestly believe these to be out of copyright and you think there's a business case (i.e. a market with sufficient demand for you to make a reasonable profit) for what you propose then go and do it. Obviously both of these require a little research.
     
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  15. gr82bart

    gr82bart Subscriber

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    I'm not too good with remembering famous photographers, but wasn't some rural photographer named Farmer (I think that's why I remember thisguy's name) made famous this way? I think it was a collector ofold photographs who collected nothing but his photographs and and published a book on his works. Now, apparently his photographs are worth bajillions and guess who has most of them? The guy who collected and reproduced them. Find out what this guy did from legally and I'd say you are in the clear.

    Regards, Art.
     
  16. Curt

    Curt Subscriber

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    Ian, do you know what the law is in GB on old photographs? Each country has it's own laws on everything. I think it's a "when in Rome do as the Romans" saying. Doesn't about every country have a set of copyright laws? I know it's a shame to have to think of it but what if I went to a gallery and took a digital camera and made a picture of one of your photographs and then came back home and made postcards out of them to sell. Even worse what if your photograph included one of your family members. I know they arn't the hundred year old ones mentioned but you get the feel. Photography can be many things to many people.

    Personally I think the idea of getting the images out is great and if "battra92" makes a buck, eu, pound, etc.. then so what, they did the work and the intentions appear to be good.

    What if Eugene Atget's life work wasn't reprinted and exhibited. Oh what we would have missed. A record of Paris like no one else had done.

    We have a photographer, Darius Kinsey (sp) who photographed the woodsmen and the NW American forests etc. in the early part of the last century. Those images which appeared in text books I will never forget. There were so many people in them, imaging if the descendants objected to the reprinting of them. They have transcended mere photographs and have become history.

    Curt
     
  17. Curt

    Curt Subscriber

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  18. Ian Leake

    Ian Leake Subscriber

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    With respect Curt, I suggest you read my post properly. I specifically mentioned copyright as a reason not to do this. And nowhere have I suggested nonsense such as going into a gallery and taking photos of photos and selling them.
     
  19. Dave Parker

    Dave Parker Inactive

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    Ian,

    Its not just modern US, I have a book here that I was reading last night that was printed and distributed in 1898 on Darkroom formulation and such the also mentioned copyright issues, so this is not a new thing, as is it is not anywhere in the world, copyright extends a long ways back and in fact, I watched a show on the Rossetta Stone that made a statement about the british sueing the french in 1822 over the ownership of the copyright on the stone, and if anything has historical value it is the Rosetta Stone!

    LOL

    Dave
     
  20. jovo

    jovo Membership Council Council

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    The guy in question here is Mike Disfarmer. There is an article about the collection of his photographs and the story of their discovery in the current issue of B&W magazine (issue 41, February '06). Here's a link for more information as well: http://www.disfarmer.com/. Apparently, if done correctly, selling this type of work and reproducing it in book form is quite legal and unassailable. (Of course anyone can sue anyone for anything here in the US, but most people don't. Lawyers with IQ's above room temperature don't initiate litigation unless they stand to make an adequate return from the action. Do this right and there's no incentive to sue...at least not for the lawyers.)
     
  21. 127

    127 Member

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    If you're doing it because you think it's worthwhile, rather than for profit, then you should do it. If it helps to clear your conscience you could donate part of the proceeds to some relevant charity. Then if someone does sue you they look bad for taking money from your good cause.

    Ian
     
  22. Dave Parker

    Dave Parker Inactive

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    As I stated in another post, I work with the Histortical societies around here in my area, contact them, and you might be surprised, they might be more than willing to help out, in addition to footing some of the costs, in exchange for historical images for their collection, there are many ways to accomplish the goal.

    Dave
     
  23. Dave Wooten

    Dave Wooten Subscriber

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    Yes, what Dave said above.....I do not think you have to worry so much the legalities.....I once had a professor who researched out of print editions of the past century to reprint them......here in Nevada we have a very popular book Ghost Town and Mining Camps...by Stanley Pahr.....compiled and written from the info gathered from old photos.......Touch base with your state or provencial historical society, they love to get involved with projects of merit, as to grants, if it appears that your project is going to move ahead and be successful with out or with the help of a grant...they will probably give you the grant....
     
  24. Curt

    Curt Subscriber

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    I thought you said "Any feedback on this?".

    Get a lawers advice since you made a request essentially saying you didn't know yourself. It leaves you wide open when you make public statements then go ahead without any legal basis in the use of anothers possibly protected property, artist or not.



    Introduction
    For at least ninety-five years, the first sale doctrine in U.S. copyright law has allowed those who buy copies of a copyrighted work to resell, rent, or lend those copies. Copyright law is often viewed as a balance of providing authors with sufficient incentives to create their works and maximizing public access to those works. And the first sale doctrine has been a major bulwark in providing public access by facilitating the existence of used book and record stores, video rental stores, and, perhaps most significantly, public libraries.

    In short, this Article seeks to determine what the benefits have been of a system in which copyrighted works are distributed in tangible copies that are freely alienable without the consent of the copyright owner. That system has produced benefits to the public, and it seems appropriate to consider whether those benefits—or other compensating benefits—will accrue to the public when works are disseminated by electronic transmission, or by encrypted digital copy, rather than in traditional copy form. If a shift away from the distribution of tangible, freely alienable copies threatens to eliminate desirable effects of the first sale doctrine, then we will need to consider amending the Copyright Act to preserve those benefits.

    I. Background: The First Sale Doctrine and the DMCA Report
    Since the first U.S. copyright act in 1790, copyright owners have had the exclusive right to “vend” copies of their works.4 But since at least 1908, copyright law has expressly recognized, first by court decision,5 and later by statutory provision,6 that the copyright owner’s right to control the sale of a particular copy of a work ends after the owner’s first transfer of that copy.7 This first sale doctrine has generally been viewed as a recognition in copyright of the law’s historic disfavor of restraints on the alienation of personal property.

    Current copyright law gives owners the exclusive right to distribute copies of their works to the public “by sale or other transfer of ownership, or by rental, lease, or lending.”8 As in the past, however, the copyright owner’s control over subsequent distribution is limited. Section 109(a) of the Copyright Act provides, “Notwithstanding the provisions of section 106(3) [granting the exclusive right of distribution], the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”9 As a result, one who owns a lawful copy of a copyrighted work may resell that copy or may rent it (in most cases),10 lend it, or give it away. Used bookstores, used compact disc (CD) stores, public libraries, and video rental stores all flourish in the shelter of the first sale doctrine.

    In several places, the Copyright Office’s report did note that future developments might have “serious consequences for the operation of the first sale doctrine” that might require legislative attention at some later date.22 In short, the Copyright Office recommended a “wait and see” approach to the question of whether changes are required to the first sale doctrine in light of the use of technological protection measures or developments in electronic commerce. The Department of Commerce report took a similar position.23

    a. Works Out of Print
    Copies of a work most often become unavailable from the copyright owner because the owner allows the work to go “out of print.”49 Copyright owners discontinue the sale of copies of significant numbers of copyrighted books and sound recordings each year. With respect to sound recordings, one estimate is that sixty percent of all titles are out of print.50 As for books, “n 1999, some ninety thousand books—many worthless, many others valuable—went out of print, according to the rueful vice-chairman of Barnes & Noble . . . .”51 Another source suggests that about 120,000 book titles may go out of print each year.52 This is a substantial number, as somewhere between 70,000 and 120,000 new titles are published annually.53 No doubt the decision to allow a work to go out of print is generally an economically rational one for the publisher, who presumably perceives insufficient demand for copies of the work to justify the expenses involved in creating, storing, transporting, and marketing copies in the quantity needed to make a profit.54



    In some cases, an author’s heirs, as successors to her copyright, may seek to suppress a work. Lord Macaulay pointed out that James Boswell’s son felt that Boswell’s Life of Johnson portrayed Boswell “in a ludicrous and degrading light” and that had the son succeeded to the father’s copyright he would likely have suppressed the work.63 In general, if an author (or her heir) owns the copyright in a work, she may refuse to allow any further exploitation of the work, whether by sale of copies or by performance or display. In effect, the author seeks to use the copyright in the way an author could use the right of withdrawal in some countries that recognize moral rights.64

    Is this availability effect good or bad? Continued public access to a work, even in the face of a copyright owner’s desire to suppress the work, is generally a salutary effect of the first sale doctrine. Copyright law seeks to encourage the creation and dissemination of works of authorship, and some dissemination is better than none.87 Although the law might not take a strong position on whether an individual consumer who wishes to see an Amos ’n’ Andy episode should be able to do so, it seems better to facilitate access to previously publicly disseminated works where possible.88

    In sum, the first sale doctrine helps ensure some access to copyrighted works even over the objections of copyright owners, at least for works that have been distributed in copies.93 Although copyright owners may well have legitimate and economically rational reasons for withdrawing a work, many members of the public will also have legitimate interests in continuing access to such works. The first sale doctrine mediates between those competing interests, allowing a copyright owner who has distributed copies to limit access to her work by refusing to produce and distribute any further copies, but offering the public an alternative avenue by which some access to the work is possible.94 The doctrine ensures that copyright law protects copyright owners’ rights but does not give them the extreme version of control over information that existed for many years in the Soviet Union, where changes in politics would lead not just to new editions of books, but to previously circulated copies of books being withdrawn or physically altered.95


    The survival of old artistic works may also be important in the creation of new works. Surviving older works may prove fertile sources for contemporary authors, seeking little-known stories and characters to incorporate into their own new creations. Derivative works—such as songs, motion pictures, and modern adaptations—may be based upon works largely forgotten until the derivative work appears.

    You need to know exactly what you are doing and why.
     
  25. Drew B.

    Drew B. Subscriber

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    Hey thats an image of my great grandparents....! ..only kidding.

    Images showing people in street scenes I wouldn't worry too much about (except for crediting XYZ) but portraits I'd check out first. Plus, who would want portraits of someone we don't know? Now, if you were to put a book together with portaits and street scenes from the late 19th century, especially if you know they are from the same locality, maybe with some newer images you have taken (to show change of environment) and promote it as a view from xyz county in West Virginia or wherever, that might sell! Hey, good idea.
     
  26. battra92

    battra92 Member

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    The portrait pictures I am only doing for the family archives. I was talking about the scenes of so and so standing on this street in town. The book idea sounds like a good project and perhaps a good base. I really should talk to the historical society but lately with college starting up I haven't had time to do much.