In article ,
Peter McCormick wrote:
I represent a number of professional photographers in Canada and in the USA.

In both countries,


The OP's remarks, below, are an accurate statement of _today's_ environment.

When dealing with _old_ items, at least in the U.S. (I _don't_ know anything
about 'ancient' Canadian law on the matter), the situation gets *much* more
complex.

_Prior_ to the U.S.'s adoption of "Berne Convention" standards:
copyright was *NOT* automatic.
There *did* have to be an assertation of copyright on every item,
*AND* the claim had to be 'registered'/filed with the Government
(simultaneous with, or prior to first publication.)

The Berne Convention 'alignment' also _radically_ changed the classification
of "work done for hire" -- greatly to the benefit of the individual producing
the work, and the detriment of the party paying for it.

That change in what constitutes 'work done for hire' applies only to work
done after the law was adopted. Works produced before that date are still
judged by the rules in effect _when_ they were produced.

As regards 'duration of copyright', the details on older works get *messy*.

Works that were still 'in copyright' at the time of the statutory revisions,
automatically 'inherited' the new, longer protections.

Works that were 'out of copyright' by the rules when they were produced, but
would be 'in copyright' if the new rules hadn't been in force at the time they
were produced, got special treatment. *IF* the original owner chose, they
could file for a 're-establishment' of the copyright, that ran from the time
of that filing forward. Any 'copying' that had been done between the time
of the prior expiration, and the re-establishment was *not* infringement.
'Re-establishing' copyright *did* require that the item had been protected
by copyright originally -- i.e., the claim asserted on the item, and the
requisite 'registration' with the government. The gov't published listings
of the works for which copyright was re-established -- it can be found on-line
on the web. (I was looking for a 1950's children's book, and got a hit on
that list.)

Works that were of an age that, even if the new rules had been in effect at
the time of their creation, would be 'out of copyright', remained unprotected.

The subsequent 'tweaking' of copyright duration has introduced additional
variations on the above.


Copyright is automatically assigned to the photographer with two
exceptions...

1. The photographer is taking the picture un the course of his employment.
(In this case the copyright belongs to the employer).

2. There is a specific written agreement, between the photographer and
client, that assigns the copyright to a third party.

When you hire a photographer, you do not become his employer and, therefore,
are not entitled to an automatic copyright.

Copyright is automatic, in favour of the photographer, upon production
(prints, digital images etc.,) of the photograph.

Under current legislation, virtually ALL photographs are copyright.

A written notice of copyright, on the image or on the back of the image, has
no effect on the assignment of copyright and is not required to establish
copyright.

Copyright does not expire when the photographer dies. The copyright becomes
the property of the photographer's estate and remains valid for 75 years
following his death.

Almost all photographs have "Commercial Value" even if it is just the value
obtained from selling further copies of the work.

In short, if you did not take the photograph and are not certain, to the
point of being able to proove it, that the photographer has been dead for at
least 75 years -- There is a very good chance that making that copy will be
actionable.

Many large volumes photofinishers have already been caught in this web. It
is probably unreasonable to ask them to accept the risks of litigation in
exchange for the dollar or two that they will make on duplicating an image.

If you are comfortable signing their "hold harmless" waiver, then you "pays
your money and takes your chances."


Fleet