Historical Association Claims Copyright To Scans Of 100 Year Old Photos

from the one-step-forward,-two-steps-back dept

The Clinton County Historical Glass Negatives Portrait Project has been “diligently identifying, sorting, re-sleeving and generally rediscovering a collection of over 15,000 glass negatives dating back to 1897.” They have made a selection of these photos available for purchase as reprints, but they have also put all of the photos behind a copyright gate that requires anyone viewing the photos agree to a ridiculously large block of legalese:

All photographs in this gallery are the property of the Clinton County Historical Association and are protected by the Copyright Law of the United States (Title 17, United States Code) and by the Berne Convention. Reproduction, storage or transmittal by any means, of any image on this web site, whole or in part, is prohibited without express prior written permission. Prints purchased from this gallery may not be reproduced or scanned for any reason and may only be used for personal display. If you wish to publish or reproduce the materials in any physical or digital form or use them for any commercial purpose, including display or Web page use, you must obtain prior written permission from the Clinton County Historical Association.

Reader Luke T. Bush, who submitted the story, astutely asks: “I understand charging for the work of scanning and printing negs but can they claim copyright to prevent copying of the prints?” As ruled in Bridgeman Art Library v. Corel Corp. 36 F. Supp. 2d 191 (S.D.N.Y. 1999), exact photographic copies of works in the public domain cannot be copyrighted. So, the question then extends to whether or not those photos are in the public domain yet. The copyright is owned by the photographer and lasts for life plus 70 years. Since the photos in question were taken from 1901-1905, it is likely that many have already passed into the public domain.

Even if CCHA actually did own the copyright to the photos, they are unnecessarily hamstringing themselves by adding this needless “protection.” Not only are the low-resolution scans on their site marred with a digital watermark, but hiding them behind their own particularly restrictive copyright gate also prevents the images from ever being included in a search engine. So, while CCHA has taken the admirable step to saving these photos from obscurity by scanning them, putting them behind this copyright gate effectively re-hides them.

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Comments on “Historical Association Claims Copyright To Scans Of 100 Year Old Photos”

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Re: Re:copyright gate

I have a photo I call The Horton Photo,Wyatt Earp. It has been researched and published in a major newspaper. I have created with my experts and time a complete report on this photo. It is from about 1896 and it is a tin type. There is no record my experts can find on this photo in the federal archives. I have a guy selling them on ebay, using my experts and copies off my photo. He indicates he got the photo in Calif. from the Fed. Archives. Photo does not exist there. He said, the copyright expired in 1926 and it is in the public domain. How do I protect this photo and my experts opinions from bootleggers like this? Dave


Re: Re:

Following Bridgeman v Corel to a logical conclusion, and also applying the holding in Schiffer Publishing v. Chronicle Books, it would seem that a faithful reproduction of a public domain photo will never be entitled to copyright protection but an inferior quality copying job that is a “visibly inaccurate representation(s)”, citing Schiffer, will be entitled to copyright protection.

Of course, anything created in 1928 and subsequent, the year marking the creation of Mickey Mouse, will be entitled to perpetual copyright protection as the corporate masters of the mouse will lobby the American Congress to extend copyright protection whenever Mickey Mouse is in danger of falling into public domain.


these would not be 'exact' reproductions

Scanning glass negatives is not simple, nor an exact duplicate.

Silver, or any other light-sensitized metal, put onto glass, exists as layers of particles, rather than what would generally be perceived as close to continuous tonality. Density varies, meaning that depending on the scanner / camera / lighting used, the resulting ‘scanned’ image will differ wildly.

Additionally, there was likely a combination of multiple scan passes to assemble each image presented as a print.

Images of historical nature, being sold as prints — generally, they really don’t care about being found or indexed through a search engine. Prints of historical process images tend to be up-marketed: word-of-mouth, as well as general knowledge within the art community would be much more useful, rather than trying to attract via the web.

(We could very much argue the benefits of trying to market these prints to people in general, but would people in general care about the historical process that created the negatives? Probably not. If they wanted mass-market, then submission to Getty’s historical images would make more sense. BUT. Generally, anyone curating and maintaining a collection of GLASS negatives is not looking for mass-marketing – they are preserving what are relatively fragile parts of photographic history, and print sales / fees for scanning and access tend to work toward maintaining a suitable place to store these physical objects, rather than scan/turf that some arts groups have found necessary when they no longer had the resources to store the physical originals in an archival-friendly manner)


Re: these would not be 'exact' reproductions

So, I can take a movie print, scan it with a different exposure than normal, post it online, and legally claim a copyright on it? Damn, I may have to quit my day job! I mean, after all, if that’s all it takes to assume copyright, I’ll be golden!

Sweat of the brow, good intentions and an altruistic rationale does not give you a copyright. I would have to argue that if their intent was historical preservation, they would put them online for distribution, happy that people would be able to freely enjoy them forever. Sadly, that does not seem to be the case.

abc gumsays:

Re: Re: Re: these would not be 'exact' reproductions

“any time you buy any software, you agree to a wall of legalese”

This is not correct, you are not allowed the opportunity to read the EULA prior to purchase. The EULA is presented to the buyer after having opened the packaging and installed some or all of the software.

Dennis Yangsays:

Re: these would not be 'exact' reproductions

Sure, I recognize that these prints may not have mass appeal, but wouldn’t it behoove the historical society to try and get some help to find the FEW people that would actually pay for the physical prints at all?

I mean, the images on the site are low resolution and already have a big watermark on them, so I just don’t see why the big copyright warning is even necessary.

Printroom even has a warning for the copyright setting when you create a gallery:

“We recommend that you only enable the copyright statement if you have particular copyright concerns, as it complicates the purchasing process and may affect your sales.”


Re: these would not be 'exact' reproductions

The criterion is simple – are you trying to make as exact a reproduction as possible. If so then you get no new copyright. (That is one of the criteria that the judge in the Bridgeman case used).

On your criterion there would be no copyright infringement in making an analogue copy – since it would always count as a new work!

Mark Tolessays:

Re: these would not be 'exact' reproductions

I understand exactly what you are saying about scans varying widely and involving quite a bit of adjustments and input that might well be highly creative and thus the thought is they render them copyrightable, but unless they have clearly distorted or artistically altered the images, things like tone and shadings aren’t going to be enough. One could easily see changing the tone of a scan by a thousandth of a degree and claiming a new copyright, keeping it perpetually copyrighted. That is not going to fly. A basic copy of the image, despite any modest adjustments, is not copyrightable.


Copyright is the reason why these photos were buried in history to begin with only to have copyright re – put them behind a copyright wall once again. So works under copyright remain under copyright for so long that most of them effectively disappear and then someone eventually recovers SOME of that work and puts it under copyright AGAIN for another 95 years (or 70 plus the lifetime of the “artist”). Ridiculous. Had it not been for copyright these photos would be in the public domain and everyone would have had access to them a long time ago and they probably would have never disappeared to a point where practically no one has access to them.


Re: Not registered

I think David hit the real point here. When you go to the site and try to access any of the galleries you have to accept a really weird EULA/ToS agreement. The story that interests me most is not whether this is a bogus claim to copyright protection, but whether there is a contract being formed that essentially does away with the public domain status of these works (and the chilling effect that such a contract would have, even if legally unenforceable).

What happens to the world if everything gets slapped with such a restrictive agreement on the user? What then?


Written Permission

I assume the website contains a bit of writing, authorising you to store the image in your web-browsers cache, otherwise you’d be breaking the copyright they’re claiming by storing it. Also I assume every company that owns a server or whatever that acts as a conduit for internet traffic has also either contacted CCHA for authorization to transmit those images, or has blocked their transmission. Unless I’ve missed something where they all get an “implied” authorization, despite the fact that they never personally visited the website in order to see that they weren’t authorized?

The Bakersays:

Printroom Inc actually

If you look on the bottom pf the page, it is “copyrighted” by Printroom Inc. They are apparently the outfit that the historical society uses to supply the prints and supplies the webpage, look at the URL … http://ccha.printroom.com/GHome_main.asp?domain_name=ccha. The historical society website url is a .org (http://www.clintoncountyhistorical.org/)
Searching other printroom pages gives the same basic copyright notice.
My guess that the historical society has no idea what copyright “protection” printroom is giving them, nor do they have any idea what rights Printroom is taking from them. Perhaps the Historical society is being duped by their vendor Printroom Inc.
There is more to this below the surface.

Copyright term

So, the question then extends to whether or not those photos are in the public domain yet. The copyright is owned by the photographer and lasts for life plus 70 years. Since the photos in question were taken from 1901-1905, it is likely that many have already passed into the public domain.
There’s a bit of confusion here. Actually, the “life plus 70” copyright term applies automatically only to works created after 1978. For works created before 1978, you have to work through a complicated set of rules. See http://www.bpmlegal.com/copyterm.html for a complete chart.

For works created before 1978, you need to look at whether or not the work was ever published or if the copyright was registered. If either of these things happened before 1923, the work is in the public domain. If the work was not published or registered at all until the Historical Society did so, you’d need to look at when the publication was – if it was between 1978 and 2002, then the works will be under copyright until 2048. If the publication was after 2002, the post-1978 rules apply (life-plus-70 if the copyright owner was the photographer).

There’s one more wrinkle – if the works were “works for hire” (i.e. by employees of a photographic company, as was often the case in those days), then instead of life-plus-70, copyright might last for the first of 95 years from publication or 120 years from creation, depending on the registration and publication details. So, potentially, if the photos were works for hire and the first publication was by the Historical Society after 2002 (unlikely, but possible) they still could be under copyright for another few years – 2017 to 2025 for works created between 1897 and 1905.

That said, the one thing which is certain is that unless they got an assignment of copyright from the owner of copyright (be that the photographer or his employer), the Historical Society does not own the copyright just because the own the physical negatives.

Copyright of historical images

The copyright of historical images is a complicated issue. At History Associates we often have to navigate the challenging process of obtaining copyright data while working to meet design demands for museum exhibits. Here’s our methodology for handling historical images: https://www.historyassociates.com/resources/blog/image-acquisition-licensing/

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