"Unknown author" died less than 50 years ago

Hi there, Been using the copyright flowchart to help figure out if I can use a photograph in a publication or not. The photo was taken in ca 1952. I know when the subject died (1979), but don't know when the photographer died. I would assume the photographer to be of similar age, but s/he could have been older than the subject. If a photograph is unpublished; the photographer is unknown; and it was taken ca 1952, what are my options? http://makeit.digitalnz.org/content/uploads/0000/0026/photographs-nz-copyright-st.gif Thanks in advance for your help, Virginia

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Unlike literary works and other artistic works such as drawings, unpublished photographs have the same copyright term as published photographs. However, unless the photographer died in 1959 or earlier, which seems unlikely, the photograph you have is almost certainly in copyright. You may be able to do some homework to establish the copyright owner or to assess the impact of a potential copyright infringement caused by republishing. Some suggestions are: >> if the photograph is a snapshot, the photo may have been taken by a family member of the subject. If you have access to the original print, it may be possible to contact the estate of the subject and ask whether other family members have similar photos (e.g. from the same reel of film) that may help confirm the photographer. Matching up developer stamps, paper stock and sizes, flaws and other characteristics of the prints can help with this. >> if the photograph is a commercial print, it may be possible to trace the main commercial studios of the time through watermarks or other features such as studio backdrops. Local photo restoration services and photographic societies may be able to assist with this. Note that if the photo was commissioned by the subject, it will be the commissioner, not the photographer, that has copyright. >> if you have contact with the estate of the subject, they may be able to supply you with an alternative photograph that they have rights for. If you decide to use the photograph without permission, showing goodwill by making and documenting efforts to trace the rights holder may improve the chances of a positive outcome for you if the rights holder later claims you have infringed their rights in the work.

--Anonymous • 2010-02-18 00:00:00 UTC

Note that if the photo was commissioned by the subject, it may be the commissioner, not the photographer, that has copyright depending on the terms of the contract entered into

--Anonymous • 2010-02-18 00:00:00 UTC

Can you [Lewis] clarify why the 'unknown authorship' term doesn't apply?

--Anonymous • 2010-02-18 00:00:00 UTC

The unknown authorship rule can in fact be applied to any New Zealand photograph taken more than 50 years ago, which means it can be applied to this example as the photograph was taken around 1952. However for it to be treated as out of copyright, it requires that you have made a 'reasonable enquiry' into discovering the unknown author and rights holder. Unfortunately there is no hard and fast rule about how much effort this might involve. Our Enabling use & Re-use guide discusses what this might mean http://makeit.digitalnz.org/guidelines/enabling-use-reuse/#Unknown_copyright

--Anonymous • 2010-02-18 00:00:00 UTC

Thanks. I'm also interested to know how long copyright would sit with a photographic firm. Or any corporate author. The normal copyright period for an author is their life plus 50 years; but how does that work for a business?

--Anonymous • 2010-02-18 00:00:00 UTC

Sorry, we missed your last comment. In New Zealand, for literary and artistic works in almost all cases the copyright period is calculated by the life of the author plus 50 years, regardless of who the actual copyright owner is. So a business that employs someone to author a piece of work (or take photographs) will often have copyright ownership, but the term remains tied to the actual author's life. In the U.S. they have a 'work for hire' rule that results in a copyright term for corporate works that differs from other kinds of works, as the corporation legally becomes the author. The closest we come to that in New Zealand for artistic and literary works is Crown Copyright, which fixes the term at 100 years from creation, regardless of an author's longevity.

--Anonymous • 2010-02-18 00:00:00 UTC

I think I'm going sideways from the original question, which was about unknown authorship, but is now about corporate authorship. It seems your reply above about corporate authorship differs from the interpretation offered by Tony Millet about corporate authorship in the Lianza document: 'Questions and answers on copyright for librarians' [ http://lianza.org.nz/sites/lianza.org.nz/files/LIANZA_Copyright_QandAs_for_Librarians_Dec2008.pdf ] where Tony Millett writes: ______________________ 47. What is the duration of copyright in a work, the author of which is a corporate body such as the New Zealand Library Association or a university department? The Copyright Act 1994 clearly accepts that corporate bodies may be authors – s.18,“Qualification by reference to author”, states that a work qualifies for copyright if the author is, at the material time, a body incorporated under the law of New Zealand or of a prescribed foreign country; and s.21(2) states that where an employee makes a work in the course of his or her employment, that person’s employer is the first owner of copyright in the work. Unfortunately, s.22 (Duration of copyright in literary, dramatic, musical, or artistic works) is silent about the duration of copyright where the author is a corporate body. My own view is that in such cases copyright would expire 50 years from the end of the calendar year in which the work was made or made available to the public. I do not consider that a work which has corporate authorship can be considered to be a work of unknown authorship. But even if it is, s.22(3) makes clear that copyright in such a work expires “at the end of the period of 50 years from the end of the calendar year in which it is first made available to the public by an authorised act”. _______________ I take your point about the corporate body becoming the copyright owner, and the life of the copyright being based on the life of the actual author's life, but I can't see that spelled out in the Act itself; and I'm not sure where that interpretation of the Act comes from. Is there case law on this point? Does the Lianza guide point to another possible interpretation? If you move away from newspapers and photographs and look at small local histories published by a committtee where no actual author or editor is acknowledged or identified, how do you determine the copyright period?

--Anonymous • 2010-02-18 00:00:00 UTC

I would preface our response by saying that DigitalNZ is not able to provide legal advice, and that the information we provide is general in nature. Legal advice on specific issues should be sought from a suitably qualified legal professional. The approach we have taken in our public domain guide does tend to assume the author is a natural person or persons. We have not expressly dealt with a scenario where a corporate author could be confirmed, but acknowledge that s5 and s18 of the Copyright Act 1994 indicate that a body corporate can be an author. We are not sure how it would be possible to confirm corporate authorship (as opposed to a natural person or persons being the author) if the body corporate and the publisher no longer exist to say so. Qualifying as an author for the purposes of copyright and having the ownership of copyright are two different things. The former is important for copyright expiry, the latter for licensing the copying of a work. In many cases identifying the copyright owner is more important, especially as publishers often acquire these rights. In s126 of the Act there is however a provision for the publisher to represent the author where there is no author's name on a published work. This may address your scenario of small local histories. If you can trace the publisher, this may be all you need to request a licence. If neither author or publisher are traceable after reasonable enquiry, then under s22 published works more than 50 years old can be assumed to have expired copyright. If the Copyright Act is silent on what term of copyright applies to a work of confirmed corporate authorship, then that term must be open to legal interpretation. DigitalNZ has not sought legal advice on this, nor have we researched the case law. We are open to considering doing so if there are sufficient examples where copyright status cannot be solved by other means.

--Anonymous • 2010-02-18 00:00:00 UTC

The link to the Make it Digital re-use guide about unknown copyright is now: http://www.digitalnz.org/make-it-digital/enabling-use-re-use/#Unknown_copyright

--Ting • 2010-02-18 00:00:00 UTC

The link to the Make it Digital re-use guide about unknown copyright is now: http://www.digitalnz.org/make-it-digital/enabling-use-re-use/#Unknown_copyright

--Ting • 2010-02-18 00:00:00 UTC