skybytch 273 #1 January 31, 2012 So you have this awesome picture that you'd love to use in a project that you could make money from. You are in contact with and can obtain model releases from the other people in the photo, but the person who took the picture is dead. How do you go about legally and ethically using the photograph if you can't get permission from the photographer because s/he is dead and you don't have contact information for or even know the names of the photographer's heirs? Quote Share this post Link to post Share on other sites
DSE 5 #2 January 31, 2012 It's not too difficult. Send a certified letter to the last known address of the copyright holder, letting them know that you're holding a physical representation of their copyright, and you'd like to license it. Wait 30 days. In the meantime, make a detailed document of all the efforts you've undertaken to locate the heirs (these days, it's usually pretty easy to find people). Then in your reps and warranties, you'll need to have these two documents (returned certified and document of best attempts to locate) and provide that to the party that is licensing (not purchasing) the photo. The material/mechanical device (printed photo) is a separate object from the copyright itself; if the heirs EVER step forward, it's their image, their license, their money. The licensee may balk at that factor, but I'd be a little surprised. Bear in mind, I'm not an attorney, I only play the role on the internet. Andy or one of the others may have some background in IP law. Quote Share this post Link to post Share on other sites
AndyMan 7 #3 January 31, 2012 Copyright doesn't change with a death, it simply transfers. The heirs to the estate will hold copyright after a photographers death. Depending on how commercial the photographer was, you might find getting permission to use a lot easier, or harder. :) _Am__ You put the fun in "funnel" - craichead. Quote Share this post Link to post Share on other sites
DSE 5 #4 January 31, 2012 Right, copyright doesn't end in death (goes for 70 years past, right?) However, there are precedents (I'm not smart enough to find them online, but they're published in Richard Stim's book on clearing copyright. If there is no publisher and no assigned heirs, my understanding (from Stim and LOC) is that the escheat laws would grant the state the copyright. After trying to find the heirs, sending a certified to LKA, and exhausting efforts, I'd move forward. The value of the work doesn't need to perish with the author of the work. Me...I'd be willing to accept the risk, and be sure I disclosed in reps & warranties to the licensee, and accepted full legal responsibility for any license issues that may later arise. What would you recommend to a client if heirs cannot be located, and there is no known assignment of copyright? Would de Minimus factor into the conversation from your perspective? Quote Share this post Link to post Share on other sites
AndyMan 7 #5 January 31, 2012 I don't know the specifics of Lisa's situation, but in a small industry like Skydiving, finding a family member to inquire from can't be that difficult. But if it is or we're not talking skydiving, and you've given it a real shot, then - I too would be comfortable with the risk. But, if you're trying to get something formally cleared for publication, I'm curious if the steps you've laid out would even be enough. _Am__ You put the fun in "funnel" - craichead. Quote Share this post Link to post Share on other sites
skybytch 273 #6 February 1, 2012 Thanks! Looks like it would be a bit too much effort to get what I'd need to use it, but the information is great to have for future projects. Quote Share this post Link to post Share on other sites
