Legal Question in Intellectual Property in New Jersey

Photography for Sale

I've inherited a large library photos from my father who was a staff photographer during WWII. There has been some interest in these photos so I had them scanned, and put the originals in archival storage. Many people, (including an family member) have asked for copies, to use in college presentations, for print and their personal use, but I would like to sell these photos on a website (my husband and I are experienced in this area) with the proceeds going to my mother. What copyright agreements need to be made to assure that these pictures don't get published w/o the proper consent? How do I share some of the images with family members and not risk them being sold or shared with other parties. My father's brother is especially anxious to use these photos for a college presentation he's planing for early 2009. A published author has also asked my mother for use of some of the photos. Should I buy a web address first? Set up a home page? An Estate for the monies to go in? Are the current stock photo sites a good reference point for how to go about selling images to the public? The people in the photos are no longer living, and some were celebrities/entertainers, is that an issue?


Asked on 12/30/08, 9:37 pm

1 Answer from Attorneys
John Corbett Corbett Law Firm LLC

Re: Photography for Sale

Before you start selling something, you need to be sure that you own it. You said that your father was a "staff" photographer during WWII. I imply that most if not all of the photographs were from that period and that your father was working for someone at the time. Therein lies the problem.

At least as far back at the early eighties, the copyright law has contained a "works made for hire" provision which vests copyright ownership in the employer for works created by an employee within the scope of the employment relationship. It has been a while since I researched that part of the law but my recollection is that that works made for hire provisions were essentially unchanged from the 1930's except for changes having to do with computer programs and specific exceptions to parts related to independent contractors not relevant here.

On the information that you gave, I strongly suspect that you do not own the copyright in the works because your father did not own it and therefore could not pass it to you under his will. What you own is one or more copies of works that may or may not be copyrighted. You have all the right of an owner of a copy, but no more. You have no power to copyright any of the works yourself although, under controlled circumstances, you may be able to copyright the collection.

If the works were made for the U.S. Government and are not classified information, they are probably in the public domain as a matter of law. If the works were made for someone other than the U.S. Government, their copyright status would depend on what was done to secure the copyright in accordance with the laws at the time of their creation. An answer to that question requires more details.

If I can be of further help to you, call or email.

See also: http://info.corbettlaw.net/lawguru.htm

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Answered on 1/01/09, 11:30 pm


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