How much does 'honest effort" count towrds mitigating copyright violation?

Those of you who’ve followed my somewhat comically naïve attempts to make a VERY low-budget documentary film (I’ve raised over $2000.00 yes-- TWO grand, not two hundred grand–and have gotten at least that much value in freebie help so far) may be able to help further in my quest.

I’m trying to use old (1920s) still photographs and “rephotograph” them (think of Ken Burns technique in THE CIVIL WAR or BASEBALL), and I just hit a potential snag. I’ve found some very useful, often beautiful, photos I’d love to use (in a book from the 1980s). Yesterday I interviewed the book’s 84-year old author and asked him who owns the photos in his book. He gave me the name of another octogenerian, but said he hadn’t heard from him in a while. He also said that the company that commissioned the photos doesn’t seem to give a damn about their use.

I tried to find this photographer (I got his name and the town he lived in) but no one of that last name turned up within fifteen miles, and no one with his full name at all.

I’ve called the company that commissioned the photos back in the 1920s and ‘30s. They’re still in business, but their PR number, HR numbers, etc. don’t pick up, and no one answering the phones at their general number could suggest someone who might help me.

So the question is: what constitutes an honest effort to track down the permissions I think I need? Should I write to the company, and keep a copy of the letter? Would registering the letter help? I’m not asking for legal advice, but am asking whether I need some legal advice. I’m going to have to spend some time and money to “rephotograph” these photos (from the book, which is all I’ve got so far), but if there’s a chance I won’t be able to use them in the end, I’d rather know that now.

Since this is a very much not-for-profit venture (and is educational in nature), if the owner of the photos turns up, and gives a damn, are they entitled to anything more than a share of my non-existent profits?

By all means send the letter. It can’t hurt.

The first issue is whether the photos are still in copyright or not. Generally, anything before 1924 is in the public domain; after that, it has to be considered case by case.

If the photos are out of copyright, then, of course, there is no problem. If the copyright sill holds, things get tricky.

You can publish with a note that you made an effort to contact the copyright holder and that they should contact you if the photos are still in copyright. This will help, but only in getting a judgment.

What will happen if the copyright holder finds out is that they’ll send a letter to you. They can ask for payment, or they can insist you destroy all copies of the book. You will pretty much need to do what they say because if it comes to trial, you don’t have much in your favor. The fact you made a good faith effort to find the copyright older does not give you the right to make copies, but it would probably be considered when the time comes to fine you.

Best option for you if contacted is to determine how much the copyright holder wants and work out an agreement. If they get greedy, though, they’re still in the driver’s seat. What the copyright holder is entitled to is whatever they want from you.

The fact that it’s a not-for-profit venture has not bearing.

Just a nitpick. Public domain is pre-1923, not pre-1924.

Chuck seems to have a mental block about getting that date right. :smiley:

From what I remember of my copyright class, since these were taken as a work for hire (I’m assuming), the copyright belongs to the company that commissioned them, and the copyright is longer than one held by a person, 99 years IIRC (but am probably wrong).

However you could probably be justified in using portions of the photos as a criticism or review of the original work, which is legal. At least with written and film works (think novel reviews and film reviewers). Copyright holders are usually pretty generous toward non-profit organizations.

If the photographs were taken before 1923 (not 1924), they are out of copyright and in the public domain.

For photographs that were works for hire (e.g., a company hired a commercial photographer), and first published after 1922, their copyrights expired 28 years after their first publication unless the copyright claimant renewed the copyright. If the copyright was renewed, the photographs are under copyright for 95 years from date of first publication.

Write a letter to the legal department of the company that commissioned the photographs. Explain as you have to us how you would like to use the photographs, and ask them if the company still claims a copyright on them. And if they do, what is the copyright renewal number, and copyright renewal date for the photographs. Legal departments will reflexively claim more than they can substantiate, so it is important to call them on these details.

Send your letter via registered mail, signature required. If they fail to respond in 30 days, assume that they are making no claim to the photographs.