Ethics and Legalities of Selling Old Photos: A Primer
Many Baby Boomers find themselves with boxes full of old photos of unidentifiable people and places.
The market for collectible vintage photographs is thriving. The eBay category “Vintage and Antique (pre 1940) Photographic Images” returned 337,074 current listings. The number of completed listings in the past 90 days was 253,375 of which 64,306 sold, for a sell-through rate of around 25%.
That sell-through rate tempts me to put some of my old family photos “on the block.” I have quite a few boxes of them, inherited from various family members. Some are wonderful photos, but (I’m ashamed to admit) I can’t identify most of the people in the pictures. Many Baby Boomers find themselves in the same situation: boxes full of old photos of unidentifiable people and places.
Film is quickly becoming a thing of the past, so it won’t be long before the “boxes full of old photos” scenario is gone. It’s becoming increasingly complicated to source a photo and identify its copyright and permission status. To complicate matters, vintage photos are being scanned and put on the web in droves. Images are being shared, copied, and, in some cases stolen and sold, or used in derivative works. I’ve seen vintage photos for sale on eBay that are offered as “brand new.” How is that possible? Sellers don’t always clarify whether a “new” image has been scanned from an old photo or developed from the original negatives. With today’s technologies, it’s often hard to tell just by looking.
Photographs are covered by copyright from the moment a camera’s shutter is clicked, and (except in work-for-hire cases) the copyright belongs to the photographer. Photos and negatives are personal property, and a transfer of personal property does not transfer the copyright. You may have bought a box full of old photos and negatives at a flea market, but that doesn’t mean you own the copyright as well. Buying a photograph does not give you the right to reproduce it, display it publicly or use it commercially, unless you contract for such use with the copyright owner.
Using another photographer’s work comes with legal and ethical considerations. Copyright marks and registration are no longer required, so a photo’s legal status may not be readily apparent. Collectors and dealers should assume that all photographs under consideration are covered by copyright until they can prove otherwise. Copyright infringement carries heavy penalties. For those looking for misuse of a specific photo, offenders are not hard to find; Google Image Search and Pixsy.com make finding images fairly easy.
The body of law surrounding copyrighted material is onerous. I’ve spent many hours reading the U.S. Copyright Act and searching the Web for insight into its components. I found the exercise mind-numbing. Much of the information on the Web is incomplete or contradictory, and attorney websites and advice forums are filled with caveats. The copyright status of many Mid-20th-Century photos often has to be considered on a case-by-case basis. I applaud attorneys who are diligent enough to grasp the Act’s intricacies. I’ve learned enough to know that I’m not qualified to give advice on specific photographic circumstances. For that, you’ll need an attorney.
I have, however, been able to formulate a few questions to help you determine if you might have a copyright or permission issue. If you can’t answer these questions, then use a photo at your own risk.
- What do you intend to do with the photo? If you’re simply collecting for your own use, you needn’t be concerned about copyrights. If you’re using another’s photos for educational purposes or reviews, you’re okay, too; these uses are covered by the Act’s “Fair Use” clause. But, if you’re going to use them on your blog, sell them, make copies, or use them to illustrate a book, you need to discern their copyright status.
- What’s the date of the photo? Photos taken before January 1923 are now in the public domain.
- Is it protected by copyright? Photos taken after 1923 but before 1978 might be copyrighted, but not necessarily. Those photos were covered by the Copyright Act of 1909, which allowed for an initial copyright period of 28 years, renewable for another 28 years. Changes were made in 1976 that went into effect in 1978. After 1978, new works were protected for the author’s life plus 70 years. Work-for-hire is copyrighted for the shorter of 95 years from publication or 120 years from creation. Works that were in their renewal period (second 28 years) before 1976 were automatically extended to the 95 year limit. Confused? I understand. For clarification, see the U.S Copyright Office Circular 15A, “Duration of Copyright”.
- Are there identifiable people in the photograph? You may need their permission to use the photo. Reprint rights aside, the right to a reasonable expectation of privacy and the right to control one’s image for commercial purposes must be considered. You may have a copyright-free photo in your possession, but if the face in the photo is recognizable and you use it in an advertisement or post it on the internet, you may owe a fee.
Of course, some sellers share the attitude “Who cares? What are the chances of getting caught?” In truth, the chance of getting caught copying, selling, or misusing a nondescript old photo is slim. There are simply too many photos online and too many places to look. Reputable dealers, though, will hold themselves to a high standard and be conscientious about how they deal with vintage photos.
Wayne Jordan is a Virginia-licensed auctioneer, Certified Personal Property Appraiser and Accredited Business Broker. He has held the professional designations of Certified Estate Specialist; Accredited Auctioneer of Real Estate; Certified Auction Specialist, Residential Real Estate and Accredited Business Broker. He also has held state licenses in Real Estate and Insurance. Wayne is a regular columnist for Antique Trader Magazine, a WorthPoint Worthologist (appraiser) and the author of two books. For more info, check out Wayne’s website at resaleretailing.com or visit Wayne’s blog.
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