Using Late Father’s Photography
Full Question: Lisa, a fiber artist, asked, “My dad, who died last year, was an avid amateur photographer. In the 1960s and 70s he took many beautiful black-and-white photos of protests in NYC, mostly candid shots of protesters, and some celebrities. I’m a fiber artist, and I want to use the photos in a book project, showing readers how to transfer special photos to fabric. Can I use the photos, especially the celebrity shots, without any copyright problems? Is there anything else I need to do or consider?”
Answer: There are a few key issues that need addressing in order to answer this question:
1. Were the photos ever licensed, or transferred to another party?
2. Were the photos ever published?
3. Were rights to the photos included in a will?
4. Is this fair use?
5. Other concerns
Were the photos ever licensed or transferred to another party?
Amateur photographers sometimes catch great shots, and we often rely on their photography to tell stories organically in the media, especially in the context of social and political unrest. So even though Lisa’s dad was an amateur photographer, given the nature of his photography, it’s important to look into whether the photographs were ever licensed or ownership was transferred to a third party, like a magazine or museum. If the photos were licensed via a non-exclusive license, then it probably won’t prevent you from using them. If copyright ownership was transferred, this will likely prevent you from using the photos without permission, unless the transfers are eligible for what’s known as “termination.” A copyright attorney can help you understand your rights and limitations with regard to an agreement to license or transfer the rights.
Were the photos ever published?
Since the photos in question were taken during the 1960s and 1970s, many of the photos are governed by the Copyright Act of 1909 because they were created before January 1, 1978 when the current Copyright Act took effect. Whether or not a work was published is an extremely important consideration under the 1909 Act. If the photographs were published, there are a number of formal requirements that must have been met, including attaching a copyright notice ©, to ensure that the photographs were protected by federal law. If the photos were published, but the requirements were not met, the photos are in the public domain, and anyone can use them.
However, since these were amateur photographs, there is a good chance that they were not published, in which case, they are protected and will remain protected for 70 years after the author’s death.
Were the rights to the photographs included in a will?
Like other forms of personal property, copyright interests can be transferred at the time of death, through a will. If the rights were passed in a will, the current copyright owner would need to grant permission for use of the photos. Watch out for language in a will like “I leave all my personal property to X” which can be tricky because it may or may not include intangible personal property like copyright. An estate attorney can help you figure this out.
If the rights were not included in a will, they pass to the author’s heirs. The order is subject to the relevant state law, but in most cases, the rights would go to a surviving spouse, and if there is no surviving spouse, to his children. In Lisa’s situation, this could mean the rights now belong to her father’s surviving spouse, to Lisa alone, or they could be co-owned by Lisa and her siblings. If Lisa, alone, owns the rights, she can use the photos. If she co-owns the rights with her siblings, she can use the photos without needing permission from her siblings, but would probably have to share the profits from use of the photos with the co-owners.
Is this fair use?
One consideration, which trumps everything else we’ve discussed so far, is whether Lisa’s intended use of the photographs constitutes fair use. In determining whether a particular use is permitted by the fair use doctrine, courts consider the following four factors:
1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
An argument could be made that a book of this nature transforms the purpose of the photographs and does not affect the potential market for the photographs, which would support a finding of fair use. If this is in fact fair use, the photos may be used regardless of copyright ownership.
Besides copyright, Lisa’s proposed use of the photographs implicate an area of law known as the right of publicity. While copyright deals with who owns the rights to the photograph, the right of publicity deals with whose image appears in the photo. Unlike copyright, the right of publicity is not based on a federal statute, and therefore the rules vary from state to state. For those states that recognize the right of publicity, the law generally prohibits unauthorized use of another person’s “likeness” for a commercial purpose, which includes that person’s image in a photograph. More information on the right of publicity is available here.
Photo Credit: milos-kreckovic/iStock/thinkstock