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Are photographs published or unpublished for copyright purposes?

Photographs are just like other copyrighted material and may be either published or unpublished. Even unpublished photos may be protected, however. If published in a book or journal article, the photograph is published for copyright purposes. Today, posting photos on a website is considered to be publication.

Publication was a much more important issue prior to 1978 because only published works were eligible for federal copyright protection. Unpublished works remained in "limbo"they did not enter the public domain, nor did they receive any protection. If published without notice before 1978, the work passed into the public domain. Works that existed as of January 1, 1978, but which remained unpublished through the end of 2002, entered the public domain at the end of 2002, or life of the author (photographer) plus 70 years, whichever is greater. Photographs that existed as of January 1, 1978, that were published before the end of 2002 pass into the public domain at the end of 2047, or 70 years after the author's death, whichever is greater. Works created on or after January 1, 1978, are protected for 70 years after the death of the author, regardless of whether or not they are published.

A faculty member wants to post on the course web page photographs taken by students in the class and papers written by them. Does this present a copyright problem?

One could argue that students give permission to post photographs they take and their papers simply by enrolling in the course if the course syllabus indicates that permission for such posting is a requirement of the course. In order to protect the institution, however, having the students sign an agreement at the first of the semester stating that they give permission for inclusion of their copyrighted works on the course web page is useful. If the students give their permission, there is no need to password protect the web page since the students own the copyrights in their photographs and papers, unless their permission is conditioned on restricting access to the web page.

A university library received the photography archive from a famous woman photographer upon her death in 1990. One of her more famous photographs is a portrait of an author that was used on the book jacket of his most popular book. When the author died, the library was asked repeatedly for permission to use this portrait in news stories to announce the author's death. Is it a copyrighted photograph? Does the university own the copyright?

The copyright status of the photographer's body of work is likely unclear. If the photos are pre-1978 and were published with notice, then they were protected by copyright from the date of publication. If the photos were published without a copyright notice, they entered the public domain. The term of copyright depends on when they were published with notice. Consult my chart, "When U.S. Works Pass into the Public Domain" (see Appendix; also available at unc. edu/~unclng/public-d.htm) to determine the term. Moreover, 28 years later the copyright in the photographs would have had to be renewed or they would have entered the public domain. Not many photographers actually renewed their copyrights. If the photographs were taken after 1978, the term is 70 years after the photographer's death, and those photos clearly would still be under copyright.

Another important question is whether the photographer transferred the copyright to the publisher of the book or to the author, or whether she retained the copyright in this particular photograph when it appeared on the dust jacket. It will require some research to determine the publication arrangement between the publisher and the author. Also, outside of copyright, the right of publicity may apply, and some authors claim that all rights belong to them.

Purely on the copyright question, while the university is the legal owner of these photographs, it likely does not own the copyrights unless the deed of transfer actually transferred the copyrights to the institution. So, the library owns the physical copies but probably not the copyrights. The library can display the copies locally, but not post them on the web, reproduce them, and so forth, without permission unless the library owns the copyrights. On the other hand, if the photographer has no heirs or if the heirs agree to reproduction and display more broadly, then the library can do that. The library can grant access to the author's photograph but, unless the library owns the copyright, it cannot grant permission to use the photo.

 
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