Last week, an author contacted me about publishing some old photos and postcards in her book. She insisted she could use the postcards because the company was “out of business.” She also said it was okay to use the photos because the people in them are deceased and that “no blood relatives of (one of the individuals) are living.”
Since she is not related to the individuals in the book, I wondered how she could assume they’re all deceased, and that there are no relatives left in that entire family. It was likely wishful thinking on her part. Even if there weren’t any blood relatives remaining, that still didn’t mean she could claim ownership of photos she found.
With regards to old postcards, just because a company is out of business doesn’t mean the old owners or their heirs no longer own their copyrights. That would be like saying a retired writer no longer owns the copyrights to everything they’ve written. And, the copyrights to photos may actually be owned, in whole or in part, by the original photographers themselves, not by the company that reproduced them on postcards.
Photographers and artists do not automatically give up all rights when they make a deal with a publisher. In fact, many do not. Rights ownership ultimately depends on the contract they signed at the time. Smart creatives only sell one-time or non-exclusive rights. Remember, artists, photographers, writers and other creatives do not need to register a copyright in order to own all rights to their own work.
Even personal photographers own their own copyrights. One need not be a professional photographer to own all rights to one’s photographs. Just because your Aunt Bertha isn’t a professional photographer does not mean you can use her photo in your book without permission. Imagine you accidentally bump into Bigfoot with your car one night and you take a great, clear, close-up photo before he limps into the woods. You post the photo on your personal website and then, without your permission, it gets published by one news source, and then another, and then another, online and on TV. Soon, the publishers are selling ads on the websites where your photo appears, and selling commercials to support their news programs on TV. Why is it okay for them to use your photo for profit without permission and without payment? It’s not. It’s a violation of federal copyright law and you could sue them for thousands.
On the flipside, if you use someone else’s photo or other property without permission, you can be sued for thousands.
Written permission must be obtained from the copyright owner or their heir as copyrights transfer to heirs if the copyright term has not yet expired. Just because someone is currently in possession of a photograph does not mean they own the copyrights to that photo. And, just because someone has a photo on their website also does not mean they own the rights to that photo. The person who took the photo owns the rights unless those rights have been legally transferred to another.
It is, unfortunately, a common misconception that photos and other forms of creative expression are simply ripe for the picking if you can’t contact the copyright owner. Nothing could be further from the truth. Copyright infringement penalties range from $750 to tens of thousands.
If you want to use old photos or other items in your book, but can’t find the copyright owner, read “How long does a copyright last?” here: http://www.copyright.gov/help/faq/faq-duration.html
If you can’t prove the age of the item, and if you still can’t find the copyright owner, you will need to find another form of illustration for your project. Never, ever use someone else’s property without permission. It’s not only illegal but it’s also just plain wrong.