– James Mahoney, Razor’s Edge Communications
This past summer, The Hollywood Reporter wrote about the challenge to the copyright of the Happy Birthday tune (and the lucrative licensing revenue that it enables). That reminded me of another copyright question that I’ve wondered about.
Awhile ago, I bought a box of greeting cards featuring vintage travel photographs. Here are the front and back-matter of one of them.
Given my understanding of copyright, I was puzzled by the © of a photo by anonymous, and one that could well be old enough to be in the public domain. Over the years, I’ve seen many examples of this type of thing, so decided to investigate.
In response to my query, the U.S. Copyright Office provided this information:
“Since the author is unknown regarding the photograph, it would be difficult to determine who the copyright owner might be. It is a perfect example of what is considered an orphan work, and you may wish to read about that: copyright.gov/orphan
And, “Mere ownership of the work (found or purchased) does not give the possessor the copyright…Only the author or those deriving their rights through the author can rightfully claim copyright.”
As far as that tricksy little © goes, here’s what they had to say:
“The United States Copyright Office does not regulate the use of the copyright notice. Anyone can apply the copyright notice, without registering a work in the Copyright Office or contacting the Copyright Office … whether or not the notice is truthful or pertaining to the photographs, we cannot advise you on that.”
In other words, anyone can scatter ©s around willy nilly, like so much confetti, especially when it’s unlikely that an actual © owner would emerge from the shadows.
So that, generally speaking, is that. But, like pulling a thread on a sweater, tugging at the question leads to more puzzling elements. For example:
Copyright varies around the world. The rule in one country doesn’t necessarily apply in others. So what’s the case when a business in a foreign country claims appropriate copyright there, but distributes material in the US that would be considered orphaned or in the public domain here?
What’s the situation for archives, such as the Hulton Archive collection that Getty Images offers for a licensing fee and considers copyrighted? Clearly some of these images are old enough to be in the public domain. Yet they are offered for licensed use.
Others who are more dogged than I, more interested, or more knowledgeable may be able to shed further light.
Some well-heeled person with an expensive sense of humor might even pick a fight, like the Happy Birthday one, by using of one of those images without permission. I expect Getty Images or whomever would rigorously defend their right to licensing fees. It seems to me, in my naivete, that at least in the U.S., they wouldn’t prevail.
Separately, I have to give a resounding tip o’ the hat to the copyright office. I submitted my email inquiry through their website form, expecting to get an automated pointer to pamphlets or other info sources; a nonspecific, innocuous response after some time had passed; or no response at all.
Instead, within a day, I got an email from RyB at the Copyright Office that provided relevant information to my specific question. Not only that, but RyB also quickly responded to follow-up emails. This taxpayer is mightily impressed with the Copyright Office’s customer service.
In contrast, I also emailed Getty Images, asking about their rationale that supports charging licensing fees for images that clearly qualify as public domain in the U.S. (Their order form requires identifying the country where you’ll use the image.) The company’s automated response acknowledged receipt of the query and said they strive to reply within one business day.
So far, ©rickets.