Famous photographer's vintage negative: Can I make money with it?

First off, I'm a new member. Thanks for letting me in.

Last year I bought an interesting vintage (early 20th C.) negative on eBay, photographer "unknown." I had the negative professionally scanned, then I digitally cleaned up a large number of scratches and artifacts, and started selling prints on eBay.

Recently I found out that the original photo was taken (in 1930) by a very famous 20th C. photographer. And that the subject of the photo was also a very famous 20th C. figure in the art and literary world. Evidence of this is the existence (online) of another, similar photo obviously taken at the same time and place by that photographer (but not as good of a shot as mine).

As far as I know, the photo was never published. Certainly it is not to be found or referenced anywhere online.

My questions are: What is the extent of my legal control of the image, and whether (and in what ways) I can profit from it?

The negative is now 82 years old. It is possible that it was never published. I believe the photographer has no heirs. I own the negative. Do I now have copyright or other legal rights to the image that I have produced from the negative?

Thanks in advance for any opinions offered.


Added: The photographer was British, the photo was likely taken in France.

Added: I live in the USA.

Added: Near the end of the photographer's life, Phillipe Garner, expert-in-charge of photographs at Sotheby's, acquired his archive on behalf of the auction house.

Added: I realize that I would never own the copyright to the original image. That is not my question.

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FotoDog wrote in post #15662291
I believe the photographer has no heirs. I own the negative. Do I now have copyright or other legal rights to the image that I have produced from the negative?

Thanks in advance for any opinions offered.

Believing would get you only troubles. You have to be sure.
Owning a negative has nothing to do with the copyright. It might be lost, stolen, etc.
Extent of copyright in time differ from country to country. Do your homework.

lui-même wrote in post #15662307
Believing would get you only troubles. You have to be sure.
Owning a negative has nothing to do with the copyright. It might be lost, stolen, etc.
Extent of copyright in time differ from country to country. Do your homework.

Yeah, this.

Just because the photographer has no heirs, does not mean that the copyright wasn't passed on to somebody. It may have been sold during his lifetime, or left in his will to the local dogs home. Even without an heir, most people's belongings end up belonging to someone else after their death.

With nothing to give YOU the copyright, you are clearly not the copyright holder. It may, or may not, be legally held by somebody else.

As mentioned above, copyright law varies depending on the country you are in. It may be old enough that copyright has lapsed anyway, but that could depend on your location.

When asking a legal question in an international forum, it is important to tell people where you are as laws are different around the world, and people will give answers that apply where they are..

The other important thing to remember is that you are going to be looking at legal advice from people with no legal training, and who often have a very mixed up idea of the actual law. If you truly need to know where you stand legally, consult a local lawyer.

I will say with absolute certainty that you do not own the copyright.

The copyright is either owned by the photographer's estate or who the estate went to or it belongs in the public domain.

FotoDog wrote in post #15662291
First off, I'm a new member. Thanks for letting me in.

Last year I bought an interesting vintage (early 20th C.) negative on eBay, photographer "unknown." I had the negative professionally scanned, then I digitally cleaned up a large number of scratches and artifacts, and started selling prints on eBay.

Recently I found out that the original photo was taken (in 1930) by a very famous 20th C. photographer. And that the subject of the photo was also a very famous 20th C. figure in the art and literary world. Evidence of this is the existence (online) of another, similar photo obviously taken at the same time and place by that photographer (but not as good of a shot as mine).

As far as I know, the photo was never published. Certainly it is not to be found or referenced anywhere online.

My questions are: What is the extent of my legal control of the image, and whether (and in what ways) I can profit from it?

The negative is now 82 years old. It is possible that it was never published. I believe the photographer has no heirs. I own the negative. Do I now have copyright or other legal rights to the image that I have produced from the negative?

Thanks in advance for any opinions offered.

The US did not ratify the Berne Conventions until 1979, and thus actually had looser copyright laws than the Berne signatories (pretty much every other industrialized nation).

But even so, the fact that the negative was unpublished is what locks it down.

The copyright of a never published, never registered work under the pre-Berne-ratification laws of the US is still owned by the author or his heirs or assigns for 70 years after his death.

Thus, he would have to have died prior to 1943 for his work to have fallen into the pubic domain in the US.

If he was a famous photographer, the chance that he has heirs or legal assigns is pretty high.

The Berne signatory nations tend to be even tighter in their laws of copyright ownership.

Talk to a copyright lawyer, get a 2nd opinion from another lawyer, there is a reason we don't like lawyers.
Post the photo, I mean really? This is a PHOTO FORUM and we are all visual people.
Show it or you don't own it

Thomas Campbell wrote in post #15662359
I will say with absolute certainty that you do not own the copyright.

The copyright is either owned by the photographer's estate or who the estate went to or it belongs in the public domain.

Then I guess I need to check with Sotheby's on that, since that's who acquired his archives. I'm hoping that the 75-year copyright limit applies in this case, since it was produced in 1930. The relevant laws are rather complex.

FotoDog wrote in post #15662608
Then I guess I need to check with Sotheby's on that, since that's who acquired his archives. I'm hoping that the 75-year copyright limit applies in this case, since it was produced in 1930. The relevant laws are rather complex.

In the US, that's 70 years after the author's death, not after the work was created.

RDKirk wrote in post #15662627
In the US, that's 70 years after the author's death, not after the work was created.

It's complex. Here's something from:
http://vintagephoto.co​m …nce/copyrightar​ticle1.htm

"An important factor in determining the length of time a work is protected is whether or not it was published. Until recently, copyright assigned ownership for a finite time and barring unusual circumstances, lasted for a maximum of 75 years for items created and published before the 1976 revision of the copyright law. For material originally created and published after 1976, copyright protection is for the life of the creator plus 50 years. Unpublished materials, such as diaries and family snapshots, were protected for the life of the creator plus 50 years. Congress, however, delayed initial implementation of this provision. Under the copyright revision that took effect in 1978, the copyright holder of unpublished material was given control of use until 2003 regardless of the original creation date."

As above, you don't own the copyright and duplicating/distributi​ng copies would infringe the rights of whoever does own it (unless it is now in the public domain). You should probably contact the auction house to try and find out what happened to the collection after the artists death, and also talk to an IP lawyer with knowledge of UK copyright law. Trouble is that unless you are selling the images for $5,000 a pop the cost of an IP lawyer is probably going to eat up the money earned.

I have a list of IP lawyers on my website at http://www.obscure.co.​uk/directory/directory​-legal/. They specialise in video game IP but most are experienced in other media too.

Who is the photographer?

FotoDog wrote in post #15662659
It's complex. Here's something from:
http://vintagephoto.co​m …nce/copyrightar​ticle1.htm

"An important factor in determining the length of time a work is protected is whether or not it was published. Until recently, copyright assigned ownership for a finite time and barring unusual circumstances, lasted for a maximum of 75 years for items created and published before the 1976 revision of the copyright law. For material originally created and published after 1976, copyright protection is for the life of the creator plus 50 years. Unpublished materials, such as diaries and family snapshots, were protected for the life of the creator plus 50 years. Congress, however, delayed initial implementation of this provision. Under the copyright revision that took effect in 1978, the copyright holder of unpublished material was given control of use until 2003 regardless of the original creation date."

You stopped reading too soon. If you had gone down a few more paragraphs in your source, you would have seen:

So an unpublished work created in 1930 is copyrighted until 2080.

RDKirk wrote in post #15662954
... So an unpublished work created in 1930 is copyrighted until 2080.

Which is insane, but that's another conversation altogether.

SimonG wrote in post #15663333
Which is insane, but that's another conversation altogether.

Well, remember that's unpublished work--work that the author did not intend to make public.