Photo Attorney

May 24, 2007

Does Having The Negative Give You Copyright Power?

In the days of film, photographers were hesitant to give up their negatives or chrome because they could not then easily reproduce their work. Now that digital has come along, photographers can give clients a copy of the file and retain a file for their future use. Photographers understand that providing a digital file does not transfer the copyright. It's no different when negatives change hands, but you may have to convince others about that.

The Online Photographer recently ran a post written by Bob Shell about Getty claiming copyright to National Archives Images. Bob reported that Getty bought thousands of negatives from the U.S. National Archives to sell through its stock agency and also claims copyright on them. Most of these images were taken by government employees and are thus in the public domain (but see my blog on Government Works Exception). The question is whether Getty can legally claim copyright on the images. Probably not. (Note: if Getty had made derivative works from the public domain images, then it could protect only the new, copyrighted material of the derivative work. Since it appears that Getty has only scanned the images, there is no new copyright protection in the copy).

Apparently Getty is not alone. The Smithsonian has been trying to control the use of its materials, despite their being in the public domain. The nonprofit group, Public.Resource.Org, is challenging the Smithsonian's claims to copyright and other rights on its web site ("even in the absence of copyright, Smithsonian still reserves all rights to image use").

This has sparked various legal discussions and analysis. There may be a difference in these cases because Getty is a private entity and the Smithsonian is public. For those of you interested in the legal arguments, check out the Madisonian blog, the ArtLaw blog, the Library Law blog, and the Washington Post column.

We must remember that copyright is an intangible intellectual property. Negatives and chromes are tangible. In sum, it appears that while Getty may be able to stop others from the right to scan the negatives it bought, it cannot prevent others from reproducing the images if obtained from other sources and it may not even be able to stop the distribution of copies from Getty's files once the buyer has paid for Getty's "location and scanning" services.

Take my advice; get professional help.
PhotoAttorney®

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