Copyright in old photographs is an important issue for any collector or artist involved with this material. I own a large collection of old, discarded 35mm slides so I’ve done my best to understand my position in terms of using and sharing them.
Copyright in general
Every country has copyright law governing who owns the rights to an image, but the law is pretty universally similar. Once an image reaches a certain age it passes into the public domain but before that it belongs to the person who took the picture (note … not the person who owned the camera or film or the person in the picture but the person who took the picture). To use a picture before this date, one has to get permission from the owner of the copyright – the person who composed the picture.
If the owner of the copyright is unknown and untraceable through a ‘diligent search’ then the image gains ‘orphan’ status and is known as an ‘orphan work’. Having a physical image in your possession, for example an old print or slide found at a junk shop, doesn’t mean you own the copyright. You own the object, not the right to copy it.
People who get rid of slides and photographs by dropping them off at an auction house or second hand dealer don’t realize that in so doing the are not giving away the copyright. They may intend to give them away completely, but they don’t realize they haven’t quite done that according to law! I believe that if this was understood they would mainly agree to it, as the gesture should be a complete one, not split into giving away object and right to copy separately.
The old slides that I have collected were mainly dropped off at an intermediary (such as a second-hand dealer), or found their way to me through a few intermediaries. I am usually only contacted directly by the owners in a small percentage of cases. Most of the time no money changes hands. As a result of this I do not know the names of the people who took the photographs and they are impossible to trace.
I sometimes know the age of a slide because of a note on the frame or a clue in the image but condition can’t be used to tell the age as this depends on quality of the original, process and storage conditions. Most of the mid-century images in my collection are most likely still in copyright as this lasts until 70 years after the death of the author. Without knowing the date it was taken or the biographical details of the photographer, I can’t come to any definite conclusions regarding copyright in a particular image.
The law under review
The orphan works issue is currently seeing much debate. The law is under review and being rewritten in many countries of the world – including South Africa. As it was last rewritten in the late 1970’s prior to the existence of the Internet and the digital age, it is badly outdated. Those campaigning to change it are in favor of the legal use of orphan works for educational, personal, creative and commercial purposes. Ways and structures are being set up to monitor this and make it legally possible. This project would be ‘dead in the water’ if a change was not under way. The old slides and all the history and cultural value they contain would simply rot away unseen, not shared with others, and limited from inspiring new creative works. And of course by being hidden they could never be reconnected with their owners, and we could never learn more about those owners, should they wish to come forward. In the words of Maximilian Kaizen (UCT Graduate School of Business, & Creative Commons): “Oh perish the insanity that entombs so much treasure.”
It costs me time and money to do this project, but its mainly a labor of love. If I have included a restored image in a compilation book or poster, or sold it as a print, this has been done on a very limited scale for modest returns that come nowhere near to covering my costs. It is more important to me to keep this project alive for altruistic and artistic reasons than to profit from it.
Where I’ve restored and enhanced the original, that reworked version, incorporating my own creativity, vision and labour, is shared under a creative commons license. You may share it with acknowledgement to me, and rework it, for non-commercial purposes.
Thus all work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Please give me your old slides
If you have old slides and you would like to give them away, I would love to have them. If you are the copyright owner, and amenable, I will ask you to officially give the copyrights to me or to put them in the public domain. I will share them via this web site, carefully catalog and store them, and occasionally use them for art works, a book or print sometime in the future. I would be extremely grateful to you. Please contact me if you have any questions or would like to make arrangements.
Elaine Woodbridge 2012