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My grandfather, who lives in Cuba, gave me a box full of family picture negatives that he shot in Cuba from around 1940's to 1970's. Some of these pictures are very interesting and I think could sell them. I live in the United States.

He is fine with me doing anything I want with the pictures (that is why he gave them to me in the first place). I'm not very familiar with copyright law. I want to know if I'm now the legal copyright holder of these pictures. Or do I need some sort of signed statement from him?

Does the copyright get automatically transferred to me along with the original film?

Here are some of these pictures.

Marcos
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    Hire an attorney. –  Oct 23 '17 at 00:27
  • I'm in the US. But the pictures were taken in Cuba and that's also where my grandfather permanently lives. – Marcos Oct 23 '17 at 01:39
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    That significantly complicates the situation. Are you intending to make commercial use of these photographs? You should talk to a lawyer. – mattdm Oct 23 '17 at 02:32
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    Do the photos contain people who are identifiable? That is, do the images contain people in enough detail to distinguish their individual features from the individual features of other people? – Michael C Oct 23 '17 at 06:02
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    Keep in mind that selling images does not automatically equate to commercial usage. Newspapers, magazines, and subscription based internet sites sell images all of the time that are used editorially or artistically. Selling a print of a portrait you made of a person is also not commercial usage. It's only commercial usage if the image is used to endorse a product, service, or business. – Michael C Oct 23 '17 at 06:07
  • There are even jurisdictions where its not even possible to give copyright to someone else. – PlasmaHH Oct 23 '17 at 09:08
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    @PlasmaHH that is partially true as far as I know. In droit d'auteur jurisdictions as oppose to copyright jurisdictions you have transferable rights (mostly commercial benefits) and non-transferable rights (claiming authorship - ghost writers are essentially illegal). It's different approach to the topic and even calling it 'copyright' is not exactly correct. Source: undergraduate level introduction to copyright/droit d'auteur for CS students. – Maja Piechotka Oct 23 '17 at 09:15
  • @MaciejPiechotka: Besides that in other countries there likely is no 100% matching translation to what in the US is perceived as copyright, there are countries where the only way to transfer the copyright to someone else is to die. For everything. You write software as a programmer for a company? You have the copyrights. They have the rights to use it. – PlasmaHH Oct 23 '17 at 09:23
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    "He is fine with me doing anything I want with the pictures" - can you get that in writing?.. – Mołot Oct 23 '17 at 09:49
  • @MichaelClark Yeah, there are some identifiable people. That's actually the reason I thought the pictures could be sold (maybe for a history book or documentary). You can see a few I've uploaded here: https://www.flickr.com/photos/marcoslopezcastellanos/albums/72157675774098870 – Marcos Oct 23 '17 at 11:26
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    It's not 100% clear, so could you confirm: did your grandfather take the pictures? – Peter Taylor Oct 23 '17 at 11:39
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    @PeterTaylor Yes, most of the pictures were taken by my grandfather. – Marcos Oct 23 '17 at 12:17
  • A copy is just a copy, even if it is the first copy. – Agent_L Oct 23 '17 at 14:33
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    @Agent_L Intellectual property laws cover all copies of a photograph. What is your point? – Michael C Oct 23 '17 at 17:18
  • @MichaelClark That just because Marcos has the first copy doesn't mean that Marcos has copyright of all copies. – wizzwizz4 Oct 23 '17 at 20:04

7 Answers7

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Standard disclaimer for legal questions: I am not a lawyer, and therefore cannot offer any legal advice, other than to recommend you seek qualified legal advice from a lawyer. Don't rely on legal advice from random strangers on the Internet.

In the US (and Canada I believe), unless otherwise transferred or granted by explicit license or contract, copyright belongs to the person who took the picture, regardless of ownership of the camera or the media on which the image was recorded.

This means that if you hand your camera over to a stranger to take a picture of you in front of a landmark, then technically, the stranger owns the copyright. Of course, this is almost impossible to enforce, and I can't imagine the copyright office bothering to get involved in a putative dispute such as that.

This also means that if you let a monkey hold your camera and it accidentally manages to take its own selfie, you do not own the copyright of that image. (It can't have any copyright assigned, because the copyright office won't register rights to non-humans).

Edit:

Under the Berne Convention for the Protection of Literary and Artistic Works, signatory countries agree that copyright is established the moment a work is "fixed" (i.e., you possess copyright to a photo the moment you take the image), and that countries agree to honor the copyright laws of other signing countries where international issues may arise.

In this specific case in question, where the works were created by a Cuban national in Cuba and the rights are being sought to transfer a license or ownership to the U.S., this situation certainly falls under Berne Convention issues.

The following two-part article series by Nicole Martinez writing for Art Law Journal covers transference of derivative rights from a Cuba artist to an artist in the U.S.:

Briefly, in the articles, a Cuban author wrote very popular children's books. The author's friend Miguel, while living in the United States, adapted the books into a screenplay, and sought to have the screenplay produced into a film. As the screenplay is a derivative work, before such a film could be made, studios needed to secure rights to the adaptation. Whether, and how, the rights could be granted or transferred is the subject of Martinez's two-part articles.

Quoting from part II, Martinez writes,

Does a Cuban national have unilateral authority to grant a license for copyright, when the licensee is a foreign citizen?

As we discussed in Part I of our series, Miguel and his friend would not be able to enter into a contract for the use of the copyright under the existing trade embargo between the U.S. and Cuba. But they may be able to contract under Obama’s new regulations, if Miguel and his friend are able to prove that importing the copyrighted work into the U.S. “greatly enhance the free flow of ideas between Cuba and the United States.”

Unfortunately, Cuba has laws in place that restrict the free usage of copyrights in other states. Under Article 42 of the Cuban copyright law, a Cuban author may only grant the transfer or use of his work abroad through special permission by the Cuban government. Once again, Miguel and his friend would need to have their contract for the use of the copyright approved before they can move forward, and the Cuban government would have the unilateral right to refuse that the work be used within the United States.

And since Cuba is a subscribing nation to the Berne Convention, that means that the U.S. will need to apply Cuba’s copyright laws to the contract between Miguel and his friend. This effectively means that unless the Cuban government approves the use of the copyright abroad, Miguel will not be able to adapt the work for U.S. cinema.

I highly recommend reading both articles to get a better understanding of the issues in play: the Berne Convention; Cuban copyright law; longstanding U.S. trade embargo against Cuba; lifting of certain embargo restrictions under the Obama administration. And of course, since the articles were written, there are new developments in the U.S.–Cuba relations since Obama's administration.

These articles are of course not definitive on the subject, and certainly might not encapsulate the situation regarding the current question (mainly, transferring of photo copyrights amongst family members across international borders). But they provide an interesting basis to begin understanding some of the issues involved.

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scottbb
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    Handing your camera to a stranger to take a picture according to your specification is complicated. Good arguments can be made either way as to the ownership of the copyright, and if a serious case ever makes it to court, I expect the final decision will be made by the Supreme Court after years of argument by legions of lawyers. – Mark Oct 23 '17 at 05:07
  • @Mark Indeed, and I'm sure every one of those cases would be decided on the narrowest of distinctions and facts pertinent to that case alone, similar to the monkey selfie case. But generally and roughly speaking, the one who presses the shutter release is the author and copyright holder. – scottbb Oct 23 '17 at 06:41
  • Didn't the monkey selfie incident have a successful appeal recently on the part of the person whose camera gear it was, or am I making that up? Maybe in some country. – Muzer Oct 23 '17 at 09:09
  • Note that the monkey thing wasn't an accident. The owner of the camera had spent a considerable amount of time training the monkey to take a good selfie. – Arthur Oct 23 '17 at 09:36
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    @Muzer: "in September 2017, [PETA, the photographer and his publisher] agreed to a settlement in which [he] will donate a portion of future revenues on the photographs to wildlife organizations" thus ending that lawsuit -- https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute – dave_thompson_085 Oct 23 '17 at 10:10
  • Obviously not then! – Muzer Oct 23 '17 at 10:12
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    That's right, the same is true also for EU and most of the world that has signed the Berne convention ~100 years ago. Note also, that the author retains certain inalienable copyright aspects, called motal rights even if he sells all rights to his pictures. These include, for example, attribution. Ser also https://en.m.wikipedia.org/wiki/Moral_rights – Gnudiff Oct 23 '17 at 12:06
  • It is interesting that the US would honour the Cuban copyright law to that extent, because as far as I remember [I used to work for a national library of an EU state, think Library of Congress in European terms] , there are some differences between EU and US copyright laws which mean that some European books are publicly available [eg in digitised form] in the US while they remain unavailable in EU. – Gnudiff Oct 23 '17 at 14:14
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    @Gnudiff Well, there's what countries are bound to follow, and then there's what they actually do. =) Also, in the specific case of the adapted play in the linked articles, it was movie studios acting with caution, recognizing that financially speaking, it's not a clear matter of "simply" US-only copyright law (which they might be able to shop around to find a favorable court). But you're right, it's not at all as clear as we would like to believe (or hope). – scottbb Oct 23 '17 at 14:18
  • Thanks for the information. But I hate that any question having to do with copyright eventually boils down to "ask a lawyer". I don't need to ask a lawyer when I want to sell a used camera, or something like that. Why does selling picture have to be so complicated? – Marcos Oct 23 '17 at 15:48
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    @Marcos understood. The problem is that the entire class of intellectual property rights isn't based on the transference of possession of physical items. If I sell you one ball or house or ..., the rights of exclusive use are transferred with that item. But IP can be reproduced, so we construct IP rights to restrict the reproduction, publication, etc. of creative works of art. It's very imperfect, and I don't really know of a better system. – scottbb Oct 23 '17 at 16:05
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    @Marcos you can try to sell them anyway, of course. The question is just about who would be prepared to buy something with unknown copyright -- I am not that familiar with the US, but I imagine a pawn shop or antique shop might take them, but it is unclear to me if you could get any value out of that. Any people who could use them in books or something, would most probably be interested in copyright status, as they would be afraid of lawsuits, and would only have your word to rely on. – Gnudiff Oct 23 '17 at 19:24
  • @Gnudiff: If someone inherits original negatives and there is no evidence of their having been published, nor of their existence having been officially recorded anywhere, to whom could copyright belong if not to the possessor of the negatives? The original photographer may hold copyright within his lifetime, but if unless the copyright is recorded as an asset of the estate separate from the negatives, the settling of the estate without such a claim would seem to imply that nobody else would hold the copyright. – supercat Oct 23 '17 at 20:00
  • @supercat This is a whole can of worms called "orphan works". I am not aware of the status of them in the US, but in Europe, for example, we were not allowed (as National Library, being the local equivalent of the Library of Congress), to offer to public works with unclear copyright. There is a whole process of due diligence, where you have to document the steps you have taken to establish the author, and only if you fail, after taking them all, the works can be considered public domain. And that process is not even (yet) duly described for all EU, so you can't even do it in my country. – Gnudiff Oct 23 '17 at 20:22
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    @supercat if the negatives are recognized as part of inheritance and inherited, then indeed the copyright passes to the heir. With the possible exception of certain moral rights (such as the right of the deceased to still be identified as the author of the work, etc) – Gnudiff Oct 23 '17 at 20:30
  • @Gnudiff: What if they aren't recognized explicitly as part of the estate, but rather as part of e.g. "The house and its contents", or if had been given within the lifetime of the deceased and nothing about them is noted as being part of the estate? – supercat Oct 23 '17 at 20:37
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    @supercat Disclaimer: I am not a lawyer. The main idea is whether it can be established who the photos were taken by. In absence of counter claims you could just assume they were by the deceased. Otherwise my comment about orphan works applies, unless there is some supporting evidence, eg witnesses who can affirm that it was he who took them. The question arises rarely simply because overwhelming majority of inherited photos are not attempted to be used in copyright-relevant way. – Gnudiff Oct 24 '17 at 07:30
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Does the copyright get automatically transferred to me along with the original film?

No

While you use those pictures for your own personal enjoyment, it probably does not matter.

However, as soon as you wish to publish them, especially, but not limited to for commercial gain, you need to secure written copyright release, because all museums, stock photo sites etc will want to know if you have the RIGHT to use them.

As mentioned earlier in comments, there are also some rights only your grandfather has -- for example, the right to be named as the author of the pics.

Since you probably would like to honour your grandfather and not pass his work as your own, you should get the release from him in order to be able to publish his photos.

Gnudiff
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As the first poster said, the answer is definitively NO, and the protection applies to the work: does the author own the camera or not, this has nothing to do with what we are discussing. It concerns contract law, not copyright law. If you take a picture with a camera that was lent to you, YOU own the copyright. Loan contract law and copyright law are two totally different things.

Whether you have the negatives on deposit or not is of no importance. Again, this is about contract law, not copyright law. Wherever a work travels, its author remains the same. The Berne Convention stipulates in Article 3 that "[t]he protection of this Convention shall apply to [...] authors". Authors, not depositaries, carriers or whatever.

The copyright law does protect your grandfather automatically. This is specifically stated in Article 5 (2) of the Convention: "[t]he enjoyment and the exercise of these rights shall not be subject to any formality". Indeed, this goes without saying. Imagine the situation if it wasn't automatic: in the world, one or two billions photographers and authors of videos would need to launch a copyright procedure with all the inconvenience, time loss and expense that entails. Almost all of them would give up and copyright law would be devoid of substance.

In most of the states parties to the Convention, a transfer of copyright must be set down in writing. In the US, the Copyright Law specifies that "[a] transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent" (Section 204 (a)). So it's simple: copyright = no formality; transfer of copyright = written contract.

Regardless of the Cuban law and Cuba-US problems which were explained by Scottbb, you do need that written agreement because the publisher with whom you will do business is almost certainly going to ask you to sign a contract. But, from a legal standpoint, this document won't be valid if you aren't your grandfather's "duly authorized agent". If I were you, I wouldn't try to fool them into believing you have the right to sign if you haven't. Trouble ahead.

Pierre
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I'm not a lawyer, if you have doubt you should contact one.

Nevertheless I think the answer is most likely NO.

Because connecting copyright to some material property of the process severely restricts the freedom of what you can do. Your grandfather may, for example, want to give you the negatives, so you can store them safely, but might not be okay with you commercializing them or may want a cut of the profit or something else. Nothing of this would be possible if copyright was tied to the negatives. I'm not a lawyer but I guess the law sees copyright as something immaterial instead.

A written agreement of copyright transferal would probably go a big way towards being on the safe side.

On the other side you maybe could take your grandfather saying to do whatever you want to do with it as implicit copyright transferal agreement. Best consult a lawyer in this case.

NoDataDumpNoContribution
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    @DavidRicherby - to the best of my knowledge I've never seen any discussion of a "back it up" requirement on this particular exchange. Certainly a well supported answer is preferable and one that is based primarily on conjecture is likely to be downvoted if it isn't really good conjecture. In this case, in many jurisdictions, the reasoning is sound and is part of the reason that copyright is transferred as a separate action. – AJ Henderson Oct 23 '17 at 13:40
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Practically, yes, but as you wrote in the title, it is just implicit.

Strictly speaking, you get a license to use freely the images, with no restriction (also temporal). Copyrights, like properties, usually requires more formal agreements. In any case the difference between license or copyright doesn't really matter much, if you have the negatives: your grandfather cannot give practically an additional license of the photos to other people.

The informal agreement if usually enough between family members. If you go to a lawyer or judge, as you could imagine, this will became a feud (because you give that to an other family member, the other had other advantages, ... etc. etc. without ending).

And practically speaking, he gave you the negatives so he cannot use the negative anymore anyway, so he already lost the potential royalties. If the published photo doesn't include his person, he cannot claim damages from you anyway (just doesn't attribute the photo to you, but this would be weird, considering the period of photo and your (assumed, by having a living grandfather) age).

Giacomo Catenazzi
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  • The fact that the grandfather gave the physical negatives would not preclude the possibility that he had made a high-resolution scan or other copy and licensed that to some third party who was paying ongoing royalties. On the other hand, it would seem likely that in most cases where the images were being published or licensed there would be some evidence of that. – supercat Oct 23 '17 at 20:03
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The copyright laws don't protect anyone automatically. So, any author is responsible to track if anyone is using his work without authorization and then use the copyright law to get the desired outcome.

So, you can sell the images pretty much safe. You would have a problem if the grandfather will sue you.

You are doing this based on a verbal contract. To be safer, you could ask him to sign some papers with a lawyer, to actually give or sell you the copyright.

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Any photo that was unpublished and uncopyrighted through 1976 is out of copyright under U.S. law.

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    This is what I thought too, but is wrong. Also, the matter of Cuba is an extra complication. – mattdm Oct 23 '17 at 18:34