Breach of copyright! - photographs

[ArtieBob]

The issue of copyright and ownership of photograph images is at best tricky. If you took the original photo and still own the negative, it is pretty clear that you legally own it, unless you published that photo, sold a print or negative, let someone make a copy negative, etc. In all the latter instances, it is not so clear, it depends on the caveats attached to the permission, sale, etc. Just because an image is published in a copyrighted book does not mean that the copyright holder has ownership or the exclusive copyright for a particular image. For example, many Luftwaffe photos in the USA originated from either government sources or captured documents. In either case, they are almost always considered in the public domain, and do not require permission to publish, but should be given source credit. Many times these photos are credited to “collection of ….”, which is easy but in many cases, incorrect. Publishing first or owning the print used for publishing does not in this case give exclusive ownership of images in the public domain.
There are certainly many, many cases of outright pirating on the internet and publishing with copyrighting of images incorrectly credited. But, IMHO, before I would accuse someone of such violations, it would seem that I had a very clear understanding of the origin and provenance of the material in question. I have been slowly trying to write a book on the Ju 88. Currently, the book effort is the process of cataloging about 4000 Ju 88 images in order to select and obtain permission to include in the book , which will be copyrighted. I will still not “own” all those images.

Best regards,

Artie Bob

[Andreas Brekken]

Hi, all

As Artie Bob states, this issue is at best troublesome, in reality VERY difficult, even for people that work in the field full time. I had to check this out some time ago for some of the photographs in my own collection.

The copyright owner of a photograph is in most countries (I have been told) one person, namely the person that held the camera. It is this persons privilige to TRANSFER this copyright to other persons and/or companies or organizations. This is typically automated if the person is an employee of for example a newspaper company, but this is part of the contract the photographer sign.

With regards to the numerous photographs taken by german personnel and/or professional photographers enroled in the german wartime military services, this is tricky, as most of the organizations of that time does no longer exist.

However, as one can see from books published during WWII, the copyright of photographs taken by most professional german photographers were copyrighted by their company (and not the military unit they were assigned to) and not the german army, navy or air force. And these companies does in fact still exist (under the same and or new company names, they might have been bought by other companies etc) as legal institutions.

So - if I buy or get a photograph from someone, where do I stand with regards to copyright? If the photographer is known, and still alive, this person can transfer his copyright to me, but I then have to get this in form of a legal document, or a release form. If not, I am not the holder of the copyright of this photo. So, even if I get the only known existing copy of a photograph from someones daughter, I cannot claim copyright as long as this is not legally transferred to me.

This theme does appear on this and other discussion boards from time to time, and it would be interesting if someone could gather information from the different countries in order to establish what is correct for the different countries, as it seems that for example Italy has a time limit on photographic copyright, and in for example Australia ALL photographs taken before January 1st 1955 is now in the public domain and has no copyright anymore.

With regards to the discussion that started this thread, in my opinion mr. Ewbank would have to establish that the copyright of these photographs has been transferred to him, and that mr Delmenhorst would have to establish that the original copyright owner is known and has refused to do so.

Could some of our german friends please tell us what the legal standings are in Germany?

Regards,
Andreas B

[Jan vd Heuvel]

Hi All,

this is my two cents .

The maker of an artwork (photo's included) is according to the (Dutch) law the copyrightholder of the artwork (in this case let's call it photo).

The copyrightholder can sell prints of the photo, publish the photo, sell copies of the nagative or give permission to use the prints, but unless he also sells the copyright to the photo he still remains the one and only copyrightholder.

Off course there are many variations, such as selling limited copyright for a specific purpose, but that is not relevant to this discussion.

Now how about the copyrights of a photo bought through for example Ebay ?

When you buy such a photo you are not the copyrightholder of that photo, but when you use this photo for a publication, you can claim the copyrights for this photo in good faith, claiming that as far as you know this is the only remaining print of that particular photo.

The only one who can challenge that claim is another owner of a print of that photo (but if he can't proof he has bought the copyright from the original copyrightholder he has the same rights as you) or ultimately the original copyrightholder or someone who has bought the copyright or inheretid the copyrights.

And luckily for most photo's bought through Ebay the original copyrightholder can't come forward anymore and his offspring is apparantly not interested in copyrights, because they are selling the heritage of the original copyrightholder.

That means many people can claim the copyrights of a photo (many prints were swapped between "comrades") and all can use them as they please without the risk of being legally challenged by the other owners of the prints.

All this said, you can claim the copyright but you can't prove you are the one and only copyright-holder. It is case of claiming untill proved otherwise.

I am no expert in International Law, so I can't tell what differences there are in the various countries. But simple logic tells me that a legal rule for a certain country only applies to persons falling under the jurisdiction of that country.

So to my opinion if photo's are made by inhabitants of the USA and Australia and if the laws of those countries state that the copyright is ended after a certain amount of years that only applies for photo's made by people falling under the jurisdiction of those countries. Meaning that this don't apply to photo's made by people of other countries.

Just for clarification (if you are tired reading all this): a photo published in a book is certainly not become public domain, but only made available to the public to see.

Regards,
Jan

[ArtieBob]

Dear Jan,

The German(and Japanese and Italian) material in the USA from WWII I mentioned as being in the public domain are IMHO considered as “war booty”. In this respect it has nothing to do with being previously published. IIRC, at least some courts in Europe have considered such items as not subject to recovery by the previous owners, whether or not it was government or private property.. As I said, the situation is very tricky. I do not know if any European nations have the public domain category as defined in the USA. For example, similar material in GB is subject to the Crown copyright. I do not know what the laws would be in Holland, but I suspect there is little there that would be considered as WW II “booty” as most of it was going the other direction.

Best regards,

Artie Bob

[FalkeEins]

Originally Posted by Andreas Brekken

Hi, all

With regards to the discussion that started this thread, in my opinion mr. Ewbank would have to establish that the copyright of these photographs has been transferred to him, and that mr Delmenhorst would have to establish that the original copyright owner is known and has refused to do so.

the bottom line is these discussions are entirely academic...proprietry rights & definition of 'fair use' on a case by case basis could only be established in a court of law...ie if the copyright holder has a big enough wallet...

[Ruy Horta]

Would be interesting to start a sticky thread based on Andreas' suggestion, compiling a "general" listing of copyright law(s) as they apply to our sphere of interest.

[Dénes Bernád]

I would differentiate between original photos (prints) and original negatives.

Obviously, all existing prints (and their reproductions) of a certain subject can be traced back to the original negative. Therefore, if someone owns the original negative - even if he did not actually push the shutter release button - can fairly claim that he holds the 'source' of prints made off it.

Now, I am not certain that owning the original negative is equal to owning the copyright, but chances are much better than simply owning a print.
I'd say - without any legal backing, however - that if someone owns the original negative can pretty much claim the copyright over someone who owns a photo made from that particular negative.

Obviously this does not apply to the current era of digital photos...

P.S. Very interesting thread, BTW. I agree with Ruy, that the topic should be made 'sticky' and periodically updated, when new and reliable information comes to light.

[rob van den nieuwendijk]

Hello all,

Interesting discussion - sorry, I am not a lawyer, but I did find some usefull links on the internet regarding this subject:

http://www.photosecrets.com/tips.law.html

http://www.pdimages.com/law/10.htm

http://ahds.ac.uk/copyrightfaq.htm

http://www.protectmywork.com/index_photo.php

Perhaps these links are usefull - it is a very complicated matter...

Regards
Rob

[ArtieBob]

Actually, at least for some of us, this is not an academic issue. If you are trying to put a book together, the task of gaining permission to publish photos may be the most difficult of all. I have been fortunate in that various collections, have given permission for a body of over 25,000 Luftwaffe photos, but I still am working on several hundred that show certain aspects that I would like to use. In some cases, I may have to artwork, using information from photos to get around this issue.

Best regards,

Artie Bob

[Modeldad]

I also understand that there may be another issue in that certain legal rights are not granted to photographs taken by German and Japanese combatants of WW-2.

Let us not confuse the issues of one who owns a "picture" and one who owns the copyright to that picture. They are not one in the same.

I strongly doubt that most pictures taken of WW-2 German aircraft have any copyright protection what so ever. Possibly a British or American soldier, or the estate ther of, who took a picture of captured aircraft could assert a copyright claim.

Copyright claims are often used to do nothing more than to try to intimidate other people, e.g. copyright claims of the Ethell Estate to pictures that were taken by the US governemt.