I say the less attractive, the higher the commerical value.
On a recent Sunday of my KTLK show, a listener, let’s call him Tom because that’s his name, posed a fascinating question. It’s more of a puzzle. He has old photographs that belonged to his ancestors and were inherited by him. First off, does he own the copyright in them? He owns them, they’re unpublished, but he didn’t create them. Whoever did create them did it in 1910. Copyright protection is not available to works created back then so are they in the public domain? How can they be? They’ve never been published.
Determining when something is in the Public Domain, or how long a copyright lasts is often complicated stuff. Here’s a chart made by smart people at Cornel that I often refer to on my show for you to print out and keep on hand, and I always recommend the book The Public Domain by Stephen Fishman from Nolo Press. It’s indispensable if you are planning to exploit old stuff.
If Tom just published his inherited photos in the book he planned, he could copyright the book as a whole, but could he prevent people from using these photographs without his permission? He didn’t create them. One theory I proposed was what I call the museum theory. The Louvre doesn’t own the copyright in the Mona Lisa, the image is in the public domain. However, they only let their own photographers take professional quality pictures of it (with tripods and enhanced lighting, etc. The museum owns those pictures. Those are the ones with commercial value. It makes sense that copyright law would protect them.
So Tom just needs to “take a picture” of his ancestral photos and copyright those professional quality photos and put those photos in his book and place copyright notices where appropriate. To be safe, he should put the originals in a vault so that no one can gain access to those “non-copyrightable” versions.
Or, by this theory, maybe placing them in a book IS taking a picture of them that you can protect through copyright. I don’t know if this has ever been litigated but to me, taking a high quality picture, with good lighting (arguably a creative process) would be a good foundation for protecting a copyright interest in an otherwise non-copyrightable work.
OK copyright scholars, what do you think?
Archival Gold!
