If I purchase the negatives of photographs at a thrift store, do I own the rights to the photos?

February 27, 2011 2:10 PM

If I purchase the negatives of photographs at a thrift store, do I own the rights to the photos?

I found a bunch of negatives in a thrift store. They are clearly labeled with the name of the company that used them (it's a large company and a recognizable name). I don't know if they used the images anywhere in print or online. Since I have the negatives, do I have the right to treat theme images as my own? Can I use them as I would my own photos in projects?

I know that you are not my lawyer. I was just wondering if there are any clear cut rules about this type of thing.

posted by monkeystronghold to Media & Arts (14 answers total)

IANACL, but I would say absolutely not. The rights are retained by the photographer unless the photographer waives them. They may have been waived by contract to the large company who hired the photographer, but they weren't waived to you.
posted by KathrynT at 2:20 PM on February 27, 2011 [1 favorite]

Assuming you are in the US, the US Copyright Office has an FAQ page. It says, "In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer."

The way I read this, you own a copy. You do not own the work. The real proof could be found by contacting the large company with a recognizable name, and asking them to transfer the copyright to you. Their response will give you a clear indication of whether or not you own the work.
posted by Houstonian at 2:27 PM on February 27, 2011

Response by poster: Thanks for the answers so far. I should have added one other thing to this:

I also purchased some personal slides/negatives from travels in the 60's and 70's. Are the rules for these somehow different than the negatives from the large company with the recognizable name? I have no way to contact the photographer of these photos to have the copyright transferred.
posted by monkeystronghold at 2:30 PM on February 27, 2011

No. The details may vary from country to country, but generally speaking, owning the image in some form (regardless of whether it's a positive or negative) is a completely different thing from owning the intellectual property.
posted by penguin pie at 2:31 PM on February 27, 2011

No, no more so than buying an original Twilight manuscript on E-Bay gives you the right to go into competition with Little, Brown as a publisher.

The negatives are just a special copy of the photographs. The rights to the work are a completely separate and insubstantial thing which need to b explicitly purchased. Depending on the original contract, those rights may belong to the photographer or the company he was working for. But they certainly didn't belong to the thrift store and so they can't have been sold to you.
posted by 256 at 2:33 PM on February 27, 2011

Regarding the 60s and 70s negatives seems very unlikely you'd be challenged, and even when confronted it would be really difficult for the original photographer to prove they were not yours. I would go ahead and use them.

The question "is it legal"? being very different from "Could I successfully be sued"?
posted by Meatbomb at 2:39 PM on February 27, 2011

And to answer your follow-up question: It doesn't differ at all. The fact that it may be difficult or impossible to contact (or even identify) the copyright holder does not invalidate their copyright. The only case in which you could legally use those photographs as you would your own would be if you could be sure that they were so old that copyright had expired (which will no tbe the case for photos from the 60s or 70s).

There is of course an entirely different matter of whether anyone will step up to claim damages if you do violate their copyright.
posted by 256 at 2:40 PM on February 27, 2011

You don't hold the rights, but if you want to turn the negatives into lampshades, that could be considered transformative use.
posted by Ideefixe at 2:41 PM on February 27, 2011

It is very possible in the case of the large corporation that the work was done by an industrial, landscape or fashion photographer as a work for hire. Large Corp would continue to own the rights to their photos.
posted by DarlingBri at 4:27 PM on February 27, 2011

Response by poster: Makes perfect sense, thanks.
posted by monkeystronghold at 4:31 PM on February 27, 2011

monkeystronghold writes "Are the rules for these somehow different than the negatives from the large company with the recognizable name?"

Only in that the copyright in personal photos is extremely unlikely to have been registered and therefor you could only be sued for actual damages rather then punitive damages.

monkeystronghold writes "I have no way to contact the photographer of these photos to have the copyright transferred."

Doesn't make any difference. This is a big recognized drawback of automatic copyright coupled with quasi perpetual copyrights: orphaned works are lost because they can't enter the public domain.
posted by Mitheral at 5:55 PM on February 27, 2011

speaking as a former manager to a mall portrait studio (thus, discussing only the policy in the company, not the copyright law at large) - if the large company with a recognizable name is sears portrait studios or jc penny/lifetouch, the copyright transferred to the person who bought the negatives/sat for the portraits. i'm nearly positive it's the same for kmart studios. olan mills is owned by kmart studios these days (and walmart/picture me studios are owned by sears, and target/penny's are owned by lifetouch photos). so, if it's any of those companies, you'd only have to be worried about the individual who purchased the negatives from the studio.
posted by nadawi at 6:02 PM on February 27, 2011

Actually, nadawi, Olin Mills retains the copyright but will release the copyright to you in specific circumstances for a $24.95 processing fee. Professional photographers, especially portrait mills, usually work this way.
posted by straw at 7:33 PM on February 27, 2011

straw - what they print on their website now and how they gave out the negatives when they were still doing that are two different things. i have in depth knowledge of the portrait mills. it used to be that for a very hefty fee, and within a time window, you could purchase the negatives and the copyrights for your session. the negatives weren't sold without the copyright (although for a smaller fee, like the $25 listed in the website, you could just buy the reprinting rights from your already existing prints). when the time window passed, they were destroyed of in such a way that ones that weren't sold wouldn't show up in a thrift store.
posted by nadawi at 9:43 PM on February 27, 2011