Re: [CR]Copyright in This Digital Era

(Example: Racing:Beryl Burton)

Date: Thu, 18 Aug 2005 18:51:49 -0700 (PDT)
From: "Brett Horton" <bretthorton@thehortoncollection.com>
Subject: Re: [CR]Copyright in This Digital Era
To: classicrendezvous@bikelist.org


Perhaps I can impart to the list a brief synopsis of my experience with copyright law as it relates specifically to vintage cycling material. Over the past three years I have done my part to put the children of my $450 per hour copyright attorney through college.

As many of your are aware, a portion of my personal collection is vintage racing photographs. Presently, I own approximately 170,000 negatives and original prints from the late 1800's through 1974. Exclusive of some early American six-day photos, the vast majority of the images are European. Another, albeit smaller, area of copyright issue interest are the pre-WWII manufactures catalogs and original vintage racing posters.

As to catalogs, with the rare exception, the map is pretty clear: If the bicycle company in question is still a going concern and the material in question is not yet old enough to be in the public domain, the company owns the copyright. The notion that catalogs and company printed matter is "fair game" is simply wrong. Will the person infringing be sued? Who knows? But make no mistake, attempting to justify yourself by saying that you are publishing to your web page to disseminate information, glorify the brand, etc. is nothing more that rationalization on your part. While perhaps unlikely, you open yourself up to exposure if you choose to utilize material created by a going concern. Editorial reference is one thing, reprinting and disseminating the catalog on your web site is quite another.

If the company in question is long since out of business, one needs to determine if the names, copyrights, etc were sold or perhaps bought in bankruptcy. Further, in some countries, companies that have no buyers in bankruptcy can have their remaining assets annexed by the state.

Photographs become a bit more murky before the late 1970's. (After the U.S. signature to the Berne Convention in the 1970's the map is much more clear.) In Europe, the courts seem to be of the mindset that the person that possesses the most original format is the image owner. In that case it goes negative, original print, second generation, third generation, etc. Often, particularly with pre-WWII images, the negatives are long gone. Originally, the press agency produced a given number of first generation prints. For sake of discussion, lets say they produced 20 prints, then destroyed the glass negative. If all 20 original prints miraculously survived, there ostensibly could be 20 people lining up as the image owners. The reality, however, is that for the most part only a minute percentage of vintage images still exist with more than one surviving original print. For instance, the majority of the images in my collection were the actual archives of several press agencies. Even with that, I doubt that in my collection I have more than 200 duplicate first generation prints. That is a duplication rate of roughly 0.00118.

There are a surprisingly high number of press agencies that have been in business during the last 100 years. Running down copyright is expensive and time consuming. If you do not know the copyright owner, or the material in question has no indication of copyright ownership, simply state that the copyright owner is unknown. At least then you possibly minimize or even negate the punitive/treble damages aspect of a copyright claim.

Hope this helps.

Brett Horton San Francisco, CA

Peter Kohler wrote: <snip> I think Sheldon Brown has this about right... catalogues and company printed matter is fair game and hurrah! for those who take the time and effort to collect and, more importantly, share this material with others.