Commons:Deletion requests/File:Minerva Kohlhepp Teichert 1908.jpg

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File:Minerva Kohlhepp Teichert 1908.jpg

This photo was never published, so its copyright does not expire until 120 years after the date of creation. Rachel Helps (BYU) (talk) 17:36, 2 May 2022 (UTC)

•  Keep See: Commons:Publication (made public, not appearing in a magazine or online) for the Berne and URAA definition of publication, where a copy sent from the photographer to the sitter constitutes publication. If you can show that this image only exists as a photographic negative that remained with the photographer, then I would agree that it was never made public, but we can all see that it exists as a carte de visite from the uncropped version. Images made public, without a visible copyright notice, are in the public domain up until 1977. --RAN (talk) 18:17, 2 May 2022 (UTC)

• I would really like you to be right! Thanks for pointing me to the Berne convention. It states: "The expression "published works" means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work." This has implications for how I do my work in the future, so I want to be extra thorough. I asked one of our copyright experts what her ideas are on the subject, and I'll get back to you once I know more. Rachel Helps (BYU) (talk) 15:53, 4 May 2022 (UTC)

• Okay, RAN, our copyright person got back to me. I will just summarize what she told me for my own future reference (since I assume you may be familiar with the argument)--basically that your argument comes from Granse v. Brown Photo Co, where the court ruled that selling a copy of a photo to the buyer of the photo constituted publication. There is a however though, in that another copyright expert, Melville Nimmer, disagreed that this constituted distribution to "the public". Despite that however, she said there was a reasonable basis for arguing that these photos have been published. I consider this to be good news and I would like to rescind my deletion nomination on this photo and the two others: Commons:Deletion requests/File:Minerva Teichert horse.jpg and Commons:Deletion_requests/File:MSS2243_B3_F2_Mineva&EdaKohlheppBack.jpg. Thank you for your patience as I researched this. Rachel Helps (BYU) (talk) 14:41, 9 May 2022 (UTC)

• @Rachel Helps (BYU): Distributed images up to the year 1989 may be in the public domain if {{PD-US-1978-89}} applies, publication without registration of the copyright within 5 years. I am not aware of any commercial photographers (as opposed to press photographers) appearing in the registration database. Imagine the expense of registering thousands of photos that have no commercial value beyond the initial sale. Even the Associated Press only registered a handful of iconic photos, before abandoning the process as too burdensome. --RAN (talk) 18:36, 9 May 2022 (UTC)

• Thanks, that's good to know! I have recently uploaded some pre-1989 newspaper photos that would fall under that as well. Rachel Helps (BYU) (talk) 18:52, 9 May 2022 (UTC)

Pinging Clindberg--a friend of mine said that you have a lot of experience with copyright on Commons. Do you agree with the conclusions of this discussion? Rachel Helps (BYU) (talk) 19:36, 12 May 2022 (UTC)

Oof. "Publication" was an incredibly tortured subject under the 1909 Copyright Act... it had huge importance, but was not defined in the law. Things like books were easy, but what constituted publication of things like photographs was often much harder. There is a definition in the 1976 act, but events before that went into effect in 1978 had to use the old law.

The idea then was an unpublished work did not fall under the federal copyright law's protection; it was under "common law copyright", which was a much lesser protection and not well defined, but it existed. Once you published a work (or explicitly registered it with the U.S. Copyright Office), the common law copyright ceased to exist. If you published without a copyright notice, you got no federal protection either, and it was public domain. If you published with a copyright notice, you got 28 years of federal copyright, which you could renew (only in the last year) for another period -- originally another 28 years but later extended so the full term was 95 years if renewed. Because of the consequences of publishing without notice, courts created the concepts of "limited publication" versus "general publication". "Limited publication" did not cause loss of copyright; only "general publication" did. A book author giving copies of manuscripts to various publishing houses would be "limited"; only the publication of the book for the general public would be the important event. There were even different definitions of "limited publication"; one definition was giving out copies to a limited set of people, for a limited purpose, and with restrictions on further distribution. All three had to be satisfied, otherwise it was general publication. Other circuits went more for a general availability of copies to the public as a definition. Commons:Public art and copyrights in the US has some discussion on the pre-1978 law, but in the context of public statues, which had some more specific court cases around it. There can be some surprising results -- things like TV or radio broadcast, since tangible copies were not distributed, is not considered "publication" even though it was suddenly exposed and known to the general public. There was a court case on the Oscar statuette, which had been part of TV broadcasts for years, but the only physical copies were given to winning actors with no right of re-sale, so that remained "limited publication" until the statuette was registered with the U.S. Copyright Office years later (and so is still under copyright). A painting at an exhibition is similarly not publication in and of itself, but if there was no effort to stop say photographers from making further copies, then it could be considered publication at that point (as discussed in that link). (Common law copyright was extinguished in 1978; you got federal protection from the moment of creation under that law.)

Another difficulty was in who actually owned the copyright of a commissioned work, or when single works like paintings were sold. Court cases were quite divided, until the 1976 act made clear that the ownership of an object was distinct from the ownership of the copyright, and copyright was not transferred unless in writing. So these days, the photographer owns the copyright of say wedding photographs, unless the contract says otherwise. Before 1978 however, there were some strong precedents both ways and it's very muddy.

Coming back to this photo, the details can make all the difference. If it was taken by a family member, and was just part of the family papers, then yes it was clearly unpublished at least until those papers (or other copies) were given out. If it was a photograph taken at a photo studio, it gets murkier. You could argue that the common-law copyright was owned by the family as the commissioning party, who could then choose when and where to publish it -- in that case, it remained unpublished. If you take the view that the copyright was owned by the photographer, then the sale probably constituted general publication. It was given only to a limited set of people (the family), but it was not for a limited purpose, and there were no restrictions on further publication. Furthermore, copies were sold, which almost always was and is considered publication. In that view, it became published immediately, and if no notice was on the copies given, then immediately public domain. Whether the transfer of family papers to an archive could be considered publication of previously unpublished works, or a transfer of the still-existing common-law copyright (meaning the archive/library then has the right to publish), can be another thorny question. If copies of the photo were given to others as a carte de visite, that would almost certainly be general publication at the time as well.

Normally we often assume works were made to be published, and thus assume publication near when a work was created, unless there is some specific reason or evidence that it could have remained unpublished. Works coming out of family archives however do have the very distinct possibility of being unpublished, so the details should be examined a lot more closely. In the end, our standard is the Commons:Precautionary principle -- if there is a significant doubt as to its status, we would delete. However, not every theoretical doubt rises to that standard. Usually, the publication question is more of a theoretical doubt -- while technically possible for a work to remain unpublished for a long time, it was very rare. For stuff coming out of family papers though, you would want at least some argument of earlier publication, most likely. I just noticed the uncropped versions on the earlier uploads; since that was clearly taken by a studio (Prater of Pocatello, Idaho), and there is also clearly no notice, I think I'd consider that {{PD-US-expired}}. So,  Keep for me. There is a reference to a photographer William J. Prater who was in Pocatello around that time -- if that was a studio with many employees the author may be anonymous, but if the company was primarily him then he would be the author. Another site discusses a William James Prater, born in Wales in 1881, but living in Pocatello in 1909 and dying in 1950 in California -- could well be him. Which if he was the author, would also make it {{PD-old-70}} for other countries (though Commons would only care about the U.S. status for this photo). The analysis of those other two linked photos could be different, though the one with the two women certainly feels like a posed photo from a studio as well. Carl Lindberg (talk) 18:04, 14 May 2022 (UTC)

Wow, thank you for your detailed explanation, Clindberg. I will definitely reference it the next time a question like this comes up. I'd like to know more about copyright issues with old photos--is there a book or other resource you'd recommend? I will be reading over Commons:Public art and copyrights in the US. Rachel Helps (BYU) (talk) 16:19, 16 May 2022 (UTC)

copyrightdata.com collects a lot of court cases on various copyright-related topics; they have multiple pages on publication. Interestingly, it seems like motion pictures which have had the most court cases in this area; the moment of publication of those is therefore fairly well defined. www.coolcopyright.com also has a bunch of court cases organized by topic, but not sure they have any the publication aspects. There are some papers out there on the publication topic, such as one by Russel Tabor in 2005 or another by Thomas F. Cotter in 2008, depending on how deep you want to get into the weeds. Those both note a number of court cases and their inconsistencies. Carl Lindberg (talk) 02:29, 17 May 2022 (UTC)

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 Kept, per Carl. Taivo (talk) 11:29, 16 June 2022 (UTC)