# another copyright question: photos of photos? **URL:** \ **Category:** Factual Questions\ **Created:** [August 25, 2012, 5:54am UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581 "2012-08-25T05:54:25Z")\ **Posts on this page:** 8\ **Page:** 1
**Author:** ![Dr.Colossus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.colossus/32/9423_2.png) [@Dr.Colossus](https://boards.straightdope.com/u/Dr.Colossus)\ **Post date:** [August 25, 2012, 5:54am UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581/1 "2012-08-25T05:54:25Z")
maybe this one will be an easier and clearer answer: flickr has a lot of scans and pictures of antique tintypes. in some cases, they are “all rights reserved” and disallow downloads. a lot of flickr photographers are adamant about not sharing their photos. but how can they lay claim to copyrights to a pic of a pic that is public domain by virtue of expiration of initial copyright…? if i find a box of tintypes at an estate sale, buy them–do i now have copyrights to the tintype image itself? if it is scanned into a computer, do i have copyrights of the scan? never mind about it being an easy answer. it’s already mind-bendingly convoluted. ---
**Author:** ![Dr.Colossus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.colossus/32/9423_2.png) [@Dr.Colossus](https://boards.straightdope.com/u/Dr.Colossus)\ **Post date:** [August 25, 2012, 6:02am UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581/2 "2012-08-25T06:02:00Z")
these people who claim they own the rights to their image of an antique image– by that logic, couldn’t i take a picture of my computer screen with a photo on it and claim i now have copyrights to that image? what about taking a photo of a sculpture and claiming copyright to the photo when the sculpture itself is copyrighted to the artist…? ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [August 25, 2012, 6:02am UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581/3 "2012-08-25T06:02:31Z")
I believe your photo has to be more than just a simple copy of the original - it has to add some sort of creative original spin to it. If you find a box of old stuff, the original creator retains the copyright unless it’s fallen into public domain. And again you can’t claim copyright to simple scans of them. You’d have to alter them or portray them in some significantly new way. OTOH you do retain copyright to your scans in the sense that others can’t duplicate them. But you can’t prevent others from taking scans of the same thing on their own. And you don’t suddenly gain copyright to the actual original work. For the most part, people “claiming copyright” to uncopyrightable things on flickr are merely not bothering to tweak their default settings for the things to which they shouldn’t apply. ---
**Author:** ![Dr.Colossus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.colossus/32/9423_2.png) [@Dr.Colossus](https://boards.straightdope.com/u/Dr.Colossus)\ **Post date:** [August 25, 2012, 6:19am UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581/4 "2012-08-25T06:19:00Z")
i would think the copyrights on most old tintypes of non-famous people have long since died. the library of congress archive is all (or mostly) public domain (is it not?). some famous images or images of famous people might have transferred or purchased rights that are still active. i’m more interested in your run-of-the-mill tintypes and antique photos, tho. for that matter, Duke has a massive online archive of antique ephemera and trade cards, from which i frequently borrow ideas (i said before i have done a few murals creating variations of antique trade cards from defunct companies). they have a disclaimer saying you must contact the duke library to obtain permission for use–but they are all just scans of either dead companies’ very old advertising OR still living companies who i am sure maintain their own rights (i would presume Hersey’s still owns rights to their old ads, as does CocaCola and Pepsi and so on and so forth). as for the photo-of-a-sculpture, guess what? convoluted answers abound. according to PhotoAttorney online, photos of other artwork do not constitute fair use. according to all the photography forums, photographs of ANYTHING belong to the photographer. there is at least one case precedent on both sides, so how anyone makes sense of it is beyond me. no offense, but photographers are a really uptight and contentious bunch. i say that as a photographer and an artist. it just seems weird…i paint things on buildings that will be photographed and rephotgraphed and that’s the point: i want to share my thing (sidenote: i often do not sign my work, either. which is more stupid than anything else). the point is to share things, like a gift to the world. photographers, on the other hand, watermark across the middle of stuff and ruin it, because they are too uptight. “DON’T EVEN LOOK AT IT!” they might as well scream. ---
**Author:** ![Dr.Colossus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.colossus/32/9423_2.png) [@Dr.Colossus](https://boards.straightdope.com/u/Dr.Colossus)\ **Post date:** [August 25, 2012, 6:32am UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581/5 "2012-08-25T06:32:41Z")
wait… so the Daguerreian Society has an [archive](http://daguerreian.org/fm3/response2.php?Category=California%20Gold%20Rush)of images. and they have [this](http://daguerre.org/fairuse.php)clause: > [@](#): > > Digital images copyright 1995-2007 The Daguerreian Society. All rights reserved. Image files from The Daguerreian Society are made available for noncommercial, personal use only. Commercial publication, copying, or redistribution of The Daguerreian Society files in any manner for personal or corporate gain is prohibited without written permission. is that bullshit? legally, do they own the rights to the images of the images, meaning i can’t download a photo and use it…? but if i had access to the original, i could photograph IT and it would then be mine? could i take a photo-of their image on my screen and use THAT? does time-space fold in on itself because of copyright law?? ---
**Author:** ![Dr.Colossus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.colossus/32/9423_2.png) [@Dr.Colossus](https://boards.straightdope.com/u/Dr.Colossus)\ **Post date:** [August 25, 2012, 7:12am UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581/6 "2012-08-25T07:12:04Z")
i might have just answered my own question, from [this](http://www.techdirt.com/articles/20100419/0051419072.shtml)article: > [@](#): > > “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. if that is the case, the duke library disclaimer is bogus and not legally binding, nor is the fair use terms on the Daguerrian Society’s page… ---
**Author:** ![Dr.Colossus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.colossus/32/9423_2.png) [@Dr.Colossus](https://boards.straightdope.com/u/Dr.Colossus)\ **Post date:** [August 25, 2012, 7:28am UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581/7 "2012-08-25T07:28:43Z")
Holy God, it gets even more convoluted: > [@](#): > > 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](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. for good measure, i contacted the Daguerrian Society questioning their copyright legalese. i am somewhat anticipating them to claim they are the “original publishers” of some of the more mundane images. but does posting on the net constitute publication…? and if so, how would one be able to prove a tintype or old photo found in a box at a garage sale had _never_ been published before…? and oh, how it gets worse: > [@](#): > > 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. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [August 27, 2012, 5:54pm UTC](https://boards.straightdope.com/t/another-copyright-question-photos-of-photos/632581/8 "2012-08-27T17:54:33Z")
The short of it: copyright law is intended to protect original creative works. “Slavish copying”, the term they use in the _Bridgeman_ case, does not contribute anything original and is thus not copyrightable. In other words, the more exact your reproduction is, the less protectible it is. Theoretically, if someone photographs an image, they are contributing some originality to the resulting photo, in that they made decisions about lighting, angle, and so forth. However, in creating this image, you have created a “derivative work”, which means that you can in theory sue anyone who copies _your_ contributions, but not anyone who copies the original, uncopyrighted work. Una’s post in [this very old thread](http://boards.straightdope.com/sdmb/showthread.php?t=279839) is a good restatement of the issues you’re asking about.